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Friday, October 31, 2008

Ind. Courts - Still more on: Court of Appeals hears oral argument in the Lake County early voting case [Updated]

Updating this entry from this morning, the Court of Appeals panel has issued a 29-page opinion in John B. Curley, et al vs. Lake County Board of Elections and Registration, et al . But when, and where it is, I can't tell you right now. Here is what the docket says - I just checked it:

10/31/08 ISSUED THE ENCLOSED OPINION:
AFFIRMED AND REMANDED------NAJAM, J.
MAY, J. AND ROBB, J. CONCUR
29 PAGES KM
What was affirmed? Here is the 23-page opinion of Lake County Special Judge Diane Kavadias Schneider - see this ILB entry from Oct. 22nd for details.

[Update at 3:57PM] Okay, here it is, John B. Curley, et al. v. Lake Co. Board of Elections and Registration, et al, a 29-page, 3-0 opinion filed at 3:15 PM. Judge Najam writes:

The Curley Plaintiffs, the Appellees, and the State as amicus curiae raise numerous issues for our review, including issues under Indiana’s Constitution, the Voting Rights Act, and the Constitution of the United States. But this challenge to early voting—legally described as “in-person absentee voting”—presents the court, primarily, with a question of statutory interpretation. * * *

[I]t is unnecessary to address all the claims and defenses asserted before the trial court and this court in order to decide this case.5 In addressing the broad issue of whether the Board showed by a preponderance of the evidence that it met the four requirements for the issuance of a preliminary injunction, we focus on two questions of law:

1. Whether in-person absentee voting locations at offices of the circuit court clerk are “satellite offices” for purposes of Indiana Code Sections 3-11-10-26 and 3-11-10-26.3; and

2. Whether Indiana Code Section 3-11-10-26(a)(1) requires the Board to hold in-person absentee voting only in the Board’s office.

We hold that the trial court’s order was not clearly erroneous when the court determined that offices of the circuit court clerk are not “satellite offices” and that Indiana Code Section 3-11-10-26(a)(1) does not restrict the authority of the Board of Elections to conduct in-person absentee voting in the offices of the circuit court clerk. Thus, we affirm the Preliminary Injunction. * * *

Critical to the Curley Plaintiffs’ position on appeal is their allegation that the Board clearly violated Indiana law by opening the disputed in-person absentee voting locations. More specifically, the Curley Plaintiffs assert that the Board of Elections’ decision to open in-person absentee voting sites at the offices of the circuit court clerk in Gary, Hammond, and East Chicago violates Indiana Code Sections 3-11-10-26(a)(2) and 3-11-10-26.3. * * *

The Board’s conclusion that an office of the circuit court clerk is not a satellite office for purposes of in-person absentee voting is not clearly unlawful. See I.C. §§ 3-11-10-26, 3-11-10-26.3. The Board of Elections did not clearly misinterpret the law when, in exercising its general authority over local elections, it provided for early voting in the offices of the clerk. See I.C. §§ 3-6-5.2-6, 3-11-10-26. In sum, we hold that the Board did not clearly violate the law when it authorized in-person absentee voting in offices of the circuit court clerk in Gary, Hammond, and East Chicago.

Thus, the trial court did not abuse its discretion, and its order was not clearly erroneous, when the court granted the preliminary injunction prohibiting the Board from terminating early voting in the circuit court clerk’s offices in those locations. It was reasonable for the court to conclude that the office of the circuit court clerk is not equivalent to a temporary satellite voting site selected by the Board under Section 26.3, such as a school, church, or library, but is instead a permanent absentee voting location specifically identified in the statute. And the public interest in exercising the right to vote unquestionably weighs heavily on the side of the Board’s decision to open these early voting locations, especially when the Curley Plaintiffs have wholly failed to show that they have been harmed in any way. As such, the Curley Plaintiffs are unable to satisfy the demands of the per se rule, and they have not demonstrated that the trial court clearly abused its discretion in granting injunctive relief under the standard four-prong test. Walgreen, 769 N.E.2d at 169.

Under our standard of appellate review in an appeal from the grant of a preliminary injunction, we conclude that the trial court did not abuse its discretion and that the trial court’s determination is not clearly erroneous. The court’s findings are supported in the record, and the judgment is supported by the findings. Accordingly, we affirm the preliminary injunction.

Affirmed and remanded for proceedings not inconsistent with this opinion.

[Updated 11/1/08] Ken Kusmer of the AP has a story today on yesterday's COA's ruling. A quote:
The Court of Appeals rejected Republican arguments that state law required a unanimous decision by the election board to open the satellite centers.

The Indiana Republican Party had no comment on the ruling, spokesman Jay Kenworthy said. It was unclear whether the GOP would appeal the case to the Indiana Supreme Court with only one regular business day remaining before Election Day. * * *

Republican attorney Karl Mulvaney said Thursday, in oral arguments before the appeals court, that the GOP was no longer challenging the centers over voter fraud concerns but simply wanted the legalities addressed.

Up until then, Democrats had accused Republicans of using scare tactics by raising concerns about voter fraud and said the GOP was trying to suppress votes by the poor and minorities who would favor Obama. Many of those residents lack transportation to the county's other early voting site in predominantly white Crown Point and might not be able to cast ballots on Election Day, Democrats have argued.

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 26 NFP)

For publication opinions today (8):

In Term. of Parent Child Rel. of M.B. and S.B. , an important 25-page opinion, Judge Brown concludes:

A partial termination of parental rights does not exist under Indiana law. See Ind. Code § 31-35-6-4. Either the parent-child relationship survives, or it does not. Given the plain and unambiguous language of Indiana Code Section 31-35-6-4(a)(1), coupled with Indiana’s strong public policy to protect the emotional well-being of children whose parents have been either unable or unwilling to provide for their basic needs over a prolonged period of time, we conclude that Mother’s addendums to the voluntary consent forms are void ab initio and thus unenforceable as a matter of law.

Removal of the illegal addendums under the particular facts of this case, however, does not frustrate the basic purpose of the voluntary consent contracts, which were freely and voluntarily executed by Mother. Moreover, given the procedural posture of this appeal, Mother was required to establish, among other things, that HCDCS committed fraud, misrepresentation, or misconduct in order to obtain relief under Trial Rule 60 (B)(3). Simply put, we find no such evidence in the record. Accordingly, we conclude that the trial court did not abuse its discretion in denying Mother’s motion to set aside its order for voluntary termination of Mother’s parental rights to M.B. and S.B.

Notwithstanding our ultimate conclusion under the particular facts of this case, we nonetheless have serious concerns regarding the actions of the trial court, attorneys, and HCDCS in approving a post-termination visitation plan like the one involved herein. Trial courts are cautioned to refrain from approving post-termination agreements such as these in the future as they are contrary to Indiana law and are likely, under a different set of circumstances, to provide false hope to parents facing termination of their parental rights. Affirmed.

In Lloyd N. Huff, et al. v. Maxine Huff, et al. , a 9-page opinion on rehearing re an estate dispute, Judge Brown writes:
We grant rehearing and revise our original opinion as set forth herein. The result of the appeal is not changed, and we affirm our original opinion in all other respects.
In Best Chairs, Inc. v. Review Board of the Indiana Dept. of Workforce Development, a 9-page opinion, Chief Judge Baker concludes:
Under these circumstances and given this record, we can only conclude that—as in Quillen—the change in the terms of Schilling’s employment was not so unfair or unjust as to compel a reasonably prudent person to quit work under similar circumstances. Thus, we find that Schilling failed to meet her burden of establishing that she voluntarily terminated her employment with good cause and that there is not substantial evidence supporting the result reached by the Board. Consequently, we reverse.
In Rita Beatty v. Timothy LaFountaine, et al , a 13-page opinion, Chief Judge Baker writes:
The Beattys argue that summary judgment was improper because a genuine issue of material fact exists as to whether the defendant truck driver—James Martin—was an independent contractor or LaFountaine’s employee when the accident occurred. The Beattys also contend that LaFountaine is liable because it assumed a nondelegable contractual duty to place Martin under its exclusive control and to ensure that the driver “took all necessary precautions for the safety of all persons affected by the work.” Thus, the Beattys maintain that the trial court erred in denying their motion for summary judgment. Concluding that the trial court properly determined that LaFountaine was an independent contractor and finding no other error, we affirm the grant of summary judgment in LaFountaine’s favor.
In Cory Heinzman v. State of Indiana , a 19-page, 2-1 opinion, Judge May writes:
Cory Heinzman, a Child Protective Services caseworker with the Indiana Family and Social Services Administration (FSSA), was convicted after a jury trial of sixteen counts including official misconduct and various sexual offenses involving minors. He argues on appeal his charges should have been severed for trial, the State did not establish venue with regard to one victim, and there was insufficient evidence of official misconduct. We affirm in part, reverse in part, and remand. * * *

Conclusion. We reverse Heinzman’s convictions of official misconduct involving R.S., and remand with instructions to vacate those convictions, and affirm in all other respects. Affirmed in part, reversed in part, and remanded.
MATHIAS, J., concurring.
VAIDIK, J., dissenting with opinion. [which begins] I respectfully dissent from the majority’s reversal of Heinzman’s convictions for official misconduct relating to his offenses against R.S. Because I believe that the evidence is sufficient to support Heinzman’s convictions, I would affirm.

In Matthew W. Stevens v. State of Indiana , a 5-page opinion, Sr. Judge Hoffman concludes:
Because the trial court has jurisdiction to review DOC’s [educational] credit time determination, we reverse and remand with instructions for the trial court to send this case to the DOC for a review and determination of Stevens’ entitlement to the credit on all three grounds enumerated in I.C. 35-50-6-3.3(a).
In Henry Tillberry v. State of Indiana , a 9-page opinion, Judge May writes:
Henry Tillberry appeals the revocation of his probation. Because he was not afforded due process and because the trial court’s findings are unsupported by evidence, we must reverse. * * *

The informal conversation between the judge and parties at a hearing on the State’s Notice of Probation Violation not only failed to comport with Tillberry’s right to due process at a probation revocation, it also failed to elicit evidence to support by a preponderance of evidence the finding there had been two violations. Therefore, we reverse the revocation of Tillberry’s probation.

In Patrick Bergerson and Patrice Bergerson v. Michael Bergerson , an 18-page opinion, Judge May writes:
Patrick and Patrice Bergerson appeal the denial of their claim for damages arising out of a landlord-tenant relationship with Michael Bergerson. We affirm the judgment, and we deny Michael’s claim for appellate attorney fees. * * *

We have concluded the trial court ruled Patrick and Patrice were in substantial default of the lease, but its order is not a model of clarity, and we cannot say Patrick and Patrice’s interpretation of it was devoid of plausibility. Clarification of the earlier order may have helped the parties frame their arguments for appeal. This appeal is marked with the bitterness typical of family disputes, but we do not believe Michael has made a strong showing that the appeal was frivolous or in bad faith.

NFP civil opinions today (13):

In the Matter of the Adoption of A.L.M. (NFP)

Wendy Lyn Carr v. Jeffrey Scott Reagan (NFP)

In Re J.D. and D.D. (NFP)

Maurice Brown v. JPMorgan Chase Bank (NFP)

In the Matter of: K.M. (NFP)

In the Matter of J.F., S.O., & H.S.; and Melissa O. v. Vigo Co. Div. of Family & Children (NFP)

Joseph Primerano v. Indiana State Police (NFP)

The Invol. Term. of G.Y.; R.Y. (mother) v. Marion Co. Dept. of Child Svcs. (NFP)

John R. Nixon v. Dawn D. Nixon (NFP)

Alicia K. Dotson v. Stephen M. Dotson (NFP)

State of Indiana v. Honey Loehmer (NFP)

In the Matter of C.P. and C.P. (NFP)

A. Wayne Gibson and Don Shearer v. R. Bruce Dye (NFP)

NFP criminal opinions today (13):

Daniel A. Johnson v. State of Indiana (NFP)

Anthony Dix v. State of Indiana (NFP)

Michael Boyd v. State of Indiana (NFP)

Marvin Jackson v. State of Indiana (NFP)

Michael Batts v. State of Indiana (NFP)

Angel Hernandez v. State of Indiana (NFP)

Rocky Critser v. State of Indiana (NFP)

Scotty W. Garland v. State of Indiana (NFP)

Phillip Keyser v. State of Indiana (NFP)

Robert E. Myers v. State of Indiana (NFP)

Andre L. Gorman v. State of Indiana (NFP)

Dean Ross v. State of Indiana (NFP)

Terry Bryant v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Marion Co. GOP seeks ballot scrutiny"; NAACP foreclosure suit

Updating this ILB entry from yesterday, Jon Murray of the Indianapolis Star reports today in a story that begins:

Marion County election officials said Thursday that a Republican Party lawsuit seeking more scrutiny of absentee ballots was overblown and based on a misunderstanding of early-voting procedures.

Marion Circuit Judge Theodore Sosin will hear both sides today in the dispute, which is based on potential challenges of ballots cast early, either by mail or in person. County GOP Chairman Tom John said the party took action over concerns that improper absentee ballots would be counted as valid by poll workers Tuesday even if they lack the voter's signature or have other defects.

The lawsuit comes in the pressure cooker of an election that has drawn record early voting, a point not lost on Marion County Democrats.

Democratic Party Chairman Ed Treacy said the suit was meant to make way for mass challenges of such ballots on Election Day.

"Ed, you know that's not true," said John, who was standing nearby in Sosin's courtroom Thursday. "All we want to do is have the law followed."

Under Indiana law, a challenge to any voter's residency or eligibility could result in the ballot being set aside as a provisional ballot. Such ballots aren't counted until eligibility is verified after the election.

Kevin O'Neal of the Star reports today under the headline "NAACP suit filed to protect voters" in a story that begins:
A lawsuit filed by the Indianapolis chapter of the NAACP, which aims to protect voters from being turned away at the polls if their homes have been foreclosed, could be settled this morning.

Negotiations were under way Thursday to reach an agreement on a potential court order that would keep anyone from using Marion County foreclosure lists as the sole basis of a voter challenge, according to the county Republican chairman.

"A foreclosure never could have been an adequate basis for a challenge on its own," said Tom John, chairman of the Marion County Republican Central Committee.

A newspaper story that quoted the chairman saying foreclosure challenges were possible was mentioned at the beginning of the National Association for the Advancement of Colored People's court filing. But the lawsuit names only the Marion County Election Board, a bipartisan body, as the defendant. The plaintiffs are an Indianapolis couple who lost their home to foreclosure.

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Indiana Courts

Ind. Law - No satellite voting in Allen County

Niki Kelly of the Fort Wayne Journal Gazette has a long story today that reports:

INDIANAPOLIS – Voters in Lake, Marion, St. Joseph, Monroe and other Indiana counties have been voting early at convenient satellite locations in recent weeks.

But not voters in Allen County, the largest county geographically in the state.

Allen County voters wanting to cast early ballots have only one location choice – the City-County Building on Main Street.

Members of the Allen County Election Board say adding satellite sites was discussed but the logistics couldn’t be worked out in time.

“We don’t like large mistakes,” Democratic member Andy Downs said. “We wanted to be certain we could do it and do it right.”

In Indiana, eligible voters can cast an early absentee ballot in person with a photo ID without having to give a reason. In addition, traditional mail-in absentee ballots are available for those who are ill, can’t travel or might be out of town.

As of Thursday morning, 409,000 Hoosiers have submitted absentee ballots, which won’t be counted until Election Day. Of that number, about 302,000 are in-person, early absentee votes, the secretary of state’s office confirmed.

“It’s very popular, just exploding,” said Pam Finlayson, director of the Allen County Election Board, who estimated Allen County averages 1,000 early voters a day.

One of the reasons early voting is attractive is that Hoosiers can avoid long lines expected at the polls on Election Day on Tuesday. But those voting early have faced lines of their own.

Some counties, such as Hamilton and Marion in central Indiana, have reported that voters have had to wait several hours to cast ballots.

Finlayson said Allen County is lucky to have the large lobby of the City-County Building to hold the lines of people wanting to vote early and that the lines generally moved quickly.

“But Allen County will have regional absentee sites in the future. There is a need. The volume has outgrown the facility,” she said, noting the election board had originally thought it would try satellite voting in the primary with its new voting machines.

“But then everything became so historic that we decided it was not a good year to launch an entirely new process,” Finlayson said.

All counties can have satellite early-voting sites with unanimous approval of the election board.

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Indiana Law

Ind. Courts - More on: Court of Appeals hears oral argument in the Lake County early voting case

Updating this ILB entry from yesterday, Patrick Guinane reports today in the NWI Times:

Republicans still are seeking to halt early voting in the three Democratic strongholds. Attorneys for the Democratic-controlled Lake County Board of Elections and Registration contend the Republicans haven’t provided a compelling reason to do so.

"There is no harm in valid voters voting, nor is there any evidence of fraud," said Jonathan Weissglass, an attorney representing labor unions and the NAACP, which have intervened in the dispute.

At issue is whether the East Chicago, Gary and Hammond sites are satellite voting centers, which, under state law, can only be opened by a unanimous vote of the county election board. The board last month voted 3-2 along party lines to open the centers.

Democrats argue state law allows them to open early voting centers at both the elections board office in Crown Point and at the circuit clerk’s offices in East Chicago, Gary and Hammond.

Republicans say the law allows only one early center per county. In 90 counties, they contend, that location is the clerk's office, while in Lake and Tippecanoe counties, where the county elections boards have greater authority, the location is the elections board offices.

In addition to requesting an injunction to shutter the three early voting sites, the Republicans have asked the appeals court to rule on the underlying argument regarding what state law allows. They want a precedent set for future elections.

"This issue will keep coming back," Karl Mulvaney, the GOP's attorney, told the court. "We need to make that decision so it doesn't keep happening."

John Byrne's story in the Gary Post-Tribune reports:
In a key reversal, Republicans in Lake County no longer are asking courts to throw out thousands of votes cast at early voting sites in Gary, Hammond and East Chicago.

Arguing before the state Court of Appeals on Thursday, Republican Party attorney Timothy Sendak said the party no longer will seek to have votes already cast at the three sites invalidated -- a possibility GOP attorneys had raised in earlier hearings.

But after Thursday's hearing, Sendak said individual candidates retain the right to challenge votes and demand recounts after the election.

"We don't anticipate any of that," Sendak said. "That's up to the candidates."

However, the ILB did not see Mr. Sendak arguing before the COA - it was GOP attorney Karl Mulvaney who filled the entire 30 minute segment.

WBEZ 91.5 FM, Chicago Public Radio, reported Wednesday:

Long, long lines at four early voting sites in Lake County have made some voters angry.

Four-hour waits have been reported in the county hub in Crown Point, as well as at satellite offices in Gary, Hammond and East Chicago.

That interest had the county’s election board voting to keep all four sites open through Friday.

Voting will also be allowed at the sites Saturday and Sunday and until noon on Monday. The general election is Tuesday, November 4.

But longer hours aren't welcomed by everyone. Two Republican members of the county election board voted against the extention.

BTW, when I click on this story, I also get an ad for Barnes & Thornburg, which is a supporter of the Chicago public radio site. Unfortunately, the ILB has NOT been as successful in having Indianapolis law firms provide needed support to the widely-read ILB.

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Brief editorial in Bloomington paper on state judges up for retention

"Lawyers' poll backs state judges" is the heading to a brief editorial ($$) today in the Bloomington Herald-Times:

A reader recently asked the H-T editorial board about the judicial retention questions on the ballot. While they are initially appointed, judges on the Indiana Court of Appeals, Supreme Court and Tax Court are submitted to voters every 10 years for a “yes” or “no” vote on retention.

One measure of a judge’s success is how he or she is viewed by practicing attorneys. In response to the Indiana State Bar Association’s 2008 poll, 83.8 percent of 1,500 lawyers responded that Chief Justice Randall Shepard should be retained on the Supreme Court; 90.3 percent voted “yes” to Justice Theodore Boehm; 88.6 percent voted “yes” to Justice Brent Dickson. Court of Appeals Judge Carr Darden received 87.2 percent “yes” votes; Tax Court Judge Thomas Fisher received 88 percent “yes” votes.

For more information on judicial retention, visit www.in.gov/judiciary/retention.

Here is the ILB entry reporting the ISBA poll results. And by clicking the link in the upper right-hand corner of the ILB, you can find a list of all ILB entries on this year's retention election, including links to newspaper stories and editorials.

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Judicial Retention

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

Updating this ILB entry from September 25th on the Court of Appeals decision in the case of John Doe v. Town of Plainfield, Indiana (check it for a number of useful links), Bruce C. Smith of the Indianapolis Star today reports:

Convicted sex offender John Doe is continuing his long-running legal battle to be allowed in Plainfield's town parks.

Attorneys from the American Civil Liberties Union of Indiana, representing the Marion County man, have asked the Indiana Supreme Court to hear their latest appeal against a Plainfield ordinance banning convicted sex offenders from the town's parks and trail system.

The ACLU is asking the state's high court to consider further review of a September ruling by the Indiana Court of Appeals, which upheld the town's ordinance. * * *

In the newest filing, the ACLU is asking the Supreme Court to look at legal issues in the most recent state Court of Appeals ruling because of the potential for statewide impact.

"The question of whether sex offenders can be banned from public parks merely because of their past convictions is important because other communities have similar ordinances," said Ken Falk, legal director for the ACLU of Indiana.

In a 19-page petition for transfer, he wrote to the Supreme Court that more Hoosier communities undoubtedly would be prompted to enact similar ordinances.

Plainfield's ordinance, passed in 2000, has survived challenges in Hendricks Superior Court and the state appeals court. 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. An ACLU suit is pending on similar issues about a ban enacted in Jeffersonville.

In Indianapolis, courts have struck down a broadly worded ordinance that attempted to ban sex offenders for 1,000 feet around parks, schools and other places. The size of the prohibited area was considered unworkable. * * *

Falk wrote to the Supreme Court that the lawsuit now centers on the potential for a sex offender to commit a crime again.

He warned that appeals court rulings leave open the possibility that Plainfield and other communities could expand "sex offender bans to any places where children or other persons could possibly be present."

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer denied in John Myers II appeal

Reportedly, transfer has been denied re the May 30th Court of Appeals decision in the case of John R. Myers, II v. State of Indiana (see 5/30/08 ILB summary here). Myers was convicted in 2006 of killing IU student Jill Berman. See a long list of ILB entries on the case here.

From the AP report:

MARTINSVILLE, Ind. (AP) — The Indiana Supreme Court will not hear the appeal of the man convicted in the 2000 slaying of 19-year-old Indiana University student Jill Behrman.

Chief Justice Randall Shepard says the supreme court justices reviewed and discussed the case before rejecting the appeal of John Myers II.

The official Clerk's transfer list, which lists the transfers granted and denied for this week, will not be available until Monday. (Yes, it used to be available on Friday afternoons. I'm told the Court generally conferences on Thursdays.)

Posted by Marcia Oddi on Friday, October 31, 2008
Posted to Indiana Transfer Lists

Thursday, October 30, 2008

Ind. Courts - "Marion Co. GOP seeks ballot scrutiny"

Earlier today the ILB posted "There are rumors of an early voting suit being filed in Marion County this morning ..."

Jon Murray and Brendan O''Shaughnessy have a story up on the Indianapolis Star website - access it here. Some quotes:

The Marion County Republican Party has asked the Circuit Court judge for an order requiring election workers next Tuesday to more closely scrutinize absentee ballots before counting them.

Circuit Court Judge Theodore Sosin this morning delayed a hearing on the issue until 10 a.m. Friday at GOP officials’ request. Marion County Democratic Party Chairman Ed Treacy said the move is an attempt to challenge the record number of early votes cast already in Marion County, a charge GOP Chairman Tom John denied.

Yes, these are the "early votes" that many of us have already cast.
The lawsuit says the Marion County Election Board and County Clerk Beth White, a Democrat, are instructing poll workers to run all absentee ballots into a precinct’s machine on Tuesday. They have received no instructions on what to do with challenged absentee ballots, which the suit says should be treated as provisional ballots and set aside — not counted on Election Day.

John said a key issue is that the Election Board has not examined in-person and mailed-in absentee ballots before the election to throw out those lacking signatures. Those missing a signature — possibly dozens — could become subject to challenge at the polls Tuesday.

Here is the complaint. The Star will have more tomorrow.

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Indiana Courts

Ind. Courts - Court of Appeals hears oral argument in the Lake County early voting case [Updated]

The argument in John B. Curley, et al vs. Lake County Board of Elections and Registration, et al commenced at 1:30 PM this afternoon. Judge Najam, heading the three-judge panel that includes Judges Robb and May, spoke at the conclusion of the argument to say that the panel had received the case assignment last Friday, Oct. 24th and has been working on it since that time. He said "We are aware of the date of the election and we will be working to issue a written opinion as soon as possible."

If you missed the webcast, it is archived here. If you have had an opportunity to listen to the arguments, you will recognize that it would be much easier for the public to understand the issues in this case if the briefs of the parties had been made available. (I'm still hoping to obtain copies.)

The interpretation of IC 3-11-10-28 ("a voter is entitled to cast an absentee ballot before an absentee voter board") and 28.3 (authorization of satellite offices) was at issue in the arguments. Access the statute here.

[3:33 PM] Here is the first report in, a brief item on the Gary Post-Tribune site:

INDIANAPOLIS -- A panel of three Court of Appeals judges heard arguments Thursday afternoon in the Lake County early voting case, and Judge Edward W. Najam Jr. said they would rule as quickly as possible on whether to allow voting in the three sites to continue.

"We are aware of the date, that the election is approaching," Najam said.

During his argument on behalf of the Lake County Republican Party that the voting sites are illegal, attorney Karl Mulvaney said his clients would not seek to have votes already cast in the three northern cities invalidated, as attorneys for the GOP had previously told other judges they would do.

What the ILB heard on this point was Judge Najam asking Mr. Mulvaney a question, to paraphase the Judge: Going back to the initial pleading in the Judge Hawkins Court: -- unless restrained, voters risk having their votes held for naught and disallowed. We are not hearing this on the merits today but what is the relief sought, to set aside votes of early voters on the merits? Mr. Mulvaney responded: My clients are asking for declaratory judgment. * * * asking that the court issue a stay or an opinion that would be certified immediately back because this will keep coming back, it is not moot.

[3:51] Here is Patrick Guinane's story in the NWI Times:

INDIANAPOLIS | Lake County Republicans are no longer asking the courts to throw out ballots cast at contested early voting sites in East Chicago, Gary and Hammond.

Appearing before the Indiana Court of Appeals on Thursday, a lawyer for Lake County Republican Chairman John Curley said he also has dropped his contention that opening the early voting sites would increase the likelihood of vote fraud.

The Republicans still are seeking to halt early voting in the three Democratic strongholds. Attorneys for the Democratic-controlled Lake County Board of Elections and Registration contend that the Republicans haven’t proven anyone would be harmed if the sites remain open.

At issue is whether the East Chicago, Gary and Hammond sites are satellite voting centers, which, under state law, can only be opened by a unanimous vote of the county election board. The board voted 3-2 along party lines to open the centers.

The Democrats argue that the state law allows them to open early voting centers at both the election board office in Crown Point and at the circuit clerk’s offices in East Chicago, Gary and Hammond.

Republicans say the statute spells out an either or scenario designed to accommodate Lake and Tippecanoe counties, where the election board has more control over the voting process than the clerk. In the 90 other counties, the clerk is in charge.

Early voting began Oct. 6 at the election board office in Crown Point. It started Oct. 14 in East Chicago, Gary and Hammond, after lower-court judges refused the Republicans’ request for an injunction to stop those offices from opening.

Appeals Court Judge Edward Najam, who presided over Thursday’s arguments, said the three-judge panel would do its best to issue a decision as soon as possible. Early voting ends at noon on Monday.

[Updated at 7:40 PM] Mike Smith of the AP reports this evening:
INDIANAPOLIS - An attorney for Lake County's Republican chairman urged the Indiana Court of Appeals to close three early voting centers that they say opened illegally but said they would not seek to have thousands of votes already cast thrown out.

Attorney Karl Mulvaney told the court's three judges today that the sites in Gary, East Chicago and Hammond should not have opened because state law requires a unanimous vote to open satellite voting centers. The Democrat-led Lake County election board voted 3-2 along party lines to open the centers.

Today's hearing was the latest in the nearly monthlong dispute that has taken on racial overtones in the heavily Democratic county, which also is the state's most diverse. * * *

Mulvaney said today that the GOP was no longer challenging the centers over voter fraud concerns but simply wanted the legalities addressed.

A special judge appointed by the Indiana Supreme Court ruled Oct. 22 that closing the voting centers could jeopardize people's fundamental right to vote and violate the federal Voting Rights Act.

Lake County Superior Court Judge Diana Kavadias Schneider acknowledged in that ruling that state law requires a unanimous vote to open satellite voting centers but said the three sites in Gary, East Chicago and Hammond were allowable under interpretation of Indiana law. She noted that Lake County's court system is unique, with clerk's offices in multiple locations.

Mulvaney, however, said the law requiring a unanimous vote was clear and that if people wanted it changed, they should take their case to the General Assembly.

Appeals Court Judge Edward Najam asked both sides what would best serve the public's interest.

Mulvaney said it was in the public's interest that state law be followed.

"Who draws the line in this kind of situation is the General Assembly," he said.

Attorney Jonathan Weissglass countered that the public's interest was in early voting. He said it was a historic election and that long lines at precinct polling places are expected on Election Day. Without early voting, many people won't be able to cast ballots, said Weissglass, representing unions and the Indiana chapter of the NAACP who joined the case on the side of the Lake County election board.

Weissglass said Republicans were trying to shutter the extra voting centers in Lake County for fear that too many people would get to vote.

"What they are trying to do is stop people voting who differ from them," he said.

Indiana has a record 4.5 million voters registered this year, and state election officials have encouraged early voting to ease congestion at the polls on Election Day. As of this morning, nearly 410,000 people had cast early ballots statewide, more than 27,000 of them in Lake County.

Najam said the court would try to rule soon. Early voting ends at noon on Monday.

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Virgil L. Pride v. Kelvin Christian, et al (NFP) - " Either way, it was Pride that breached the terms of the purchase agreement. Accordingly, the trial court did not err in ruling in favor of the Christians. * * * The trial court did not err in ordering Pride to pay damages to the Christians, including fees and costs. Furthermore, the trial court did not err in ordering Pride to pay broker and attorney fees directly to Hoskins."

Power, Little & Little v. Barbara Adams (NFP) - This is a dispute over attorney's fees owed. "At trial, Adams testified that she was told by a representative of the Firm that the Firm's representation would cost $2500 plus mediation costs. Adams further testified that she had no further conversations with any representative from the Firm regarding attorney's fees. Additionally, the Firm's own representative testified that he had told Adams that the estimated fee for services would be between $2500 and $5000 plus the cost of mediation. Nothing in the record suggests, as the Firm contends, that the parties entered into a contract, agreeing that Adams would pay the Firm on an hourly basis. Here, in light of the evidence presented at trial and the long-standing proposition in Indiana law that the plaintiff, not the defendant, bears the burden of proving the existence and nature of a contract, we are unconvinced that the trial court erred in finding that the Firm failed to meet its burden of proof. See Ochoa v. Ford, 641 N.E.2d 1042, 1044 (Ind. Ct. App. 1994). Therefore, we reject the Firm's claim that the small claims court's statement regarding the burden of proof was contrary to law. * * *

"Having concluded that the small claims court?s statement that the Firm, which bore the burden of proof, failed to carry such burden was not contrary to law and that the Firm is not entitled to recover under the equitable doctrine of quantum meruit, we affirm the judgment of the small claims court.

"The judgment of the small claims court is affirmed. "

In the Matter of the Support of T.M., by next friend Shana Daniel v. Nathan McAlister (NFP) - "In sum, having concluded that the evidence to support the trial court’s determination that the substantial change in the circumstances warranted modification of the prior custody arrangement, and that the custody modification was in T.M.’s best interests, we affirm the judgment of the trial court. "

NFP criminal opinions today (3):

Jerry Pettigrew v. State of Indiana (NFP)

Courtney Simpson v. State of Indiana (NFP)

Timothy Cunningham v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More about today's Lake County early voting oral arguments

Names of the three Court of Appeals judges who will be on today's panel have been released by Chief Judge Baker. They are: Judges Najam, May, and Robb.

There are rumors of an early voting suit being filed in Marion County this morning - I'd appreciate hearing from anyone with information or, more importantly, papers to post.

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Indiana Courts

Courts - "Election Law Litigation — Everyone’s Doing It"

The WSJ Law Blog has a new entry today on current election law litigation. The blog references a number of stories today in the WSJ itsself, including this one headed "Rising Tide of Suits Filed in Search of Political Edge." Their section on early voting in Lake County says "The case is headed to the state Supreme Court.." Well, it has been there, momentarily, and now it is heading to oral argument before the Court of Appeals this afternoon. After that decision, the dispute may be heading to the Supreme Court again, albeit it may be moot, as it will no longer be "early."

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Courts in general

Ind. Law - "Lake County officials to decide long lines issue during election meeting Saturday"

Bill Dolan reports today in the NWI Times:

CROWN POINT | Lake County elections officials are debating whether long lines anticipated at polling places on Election Day should be deemed a voting emergency.

Democratic members of the county elections board want poll workers to be able to pass out emergency paper ballots if voters threaten to leave because of long waits.

Republican board members question whether the law permits emergency ballots to be used for any reason other than failure of electronic machines at polling places.

It is another facet of the monthlong dispute that has divided the Lake County elections board between Republicans protesting efforts to expand voting accessibility out of fears of vote fraud and Democrats claiming Republicans are trying to suppress the Democratic voter turnout.

The board put off the question of approving emergency ballots until its final election meeting Saturday to give lawyers for both parties time to research the law.

Michelle Fajman, county elections supervisor, said, "There is no doubt in my mind you will have long lines Tuesday wherever you go."

Thus far, waits at early voting locations have ranged from one hour in Crown Point to more than three hours in Gary. * * *

Jim Brown, a Republican elections board member, said, "The polls are open 12 hours. If the law says emergency ballots should only be for machine failure, then I don't know how this board can go beyond the power of what the statute authorizes."

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Indiana Law

Law - Fort Wayne paper's editorial on "The right to vote"

Well worth reading, access it here.

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to General Law Related

Courts - "DOJ Study: Plaintiffs Win More Than Half of State Court Civil Trials"

Vesna Jaksic of The National Law Journal reports today:

Plaintiffs won in more than half of state court civil trials in 2005 and were more likely to get a favorable verdict in bench than jury trials, according to a new U.S. Department of Justice report.

Plaintiffs won in 56 percent of all general civil trial cases. Judges ruled in their favor in 68 percent of the cases, while juries favored the plaintiffs 54 percent of the time.

The report was released Tuesday by the Bureau of Justice Statistics at the U.S. Department of Justice. The study is the first nationally representative measure of general civil bench and jury trials in state courts.

The report found that plaintiffs were awarded an estimated $6 billion in compensatory and punitive damages, with the final median damage award of $28,000. More than 14 percent of plaintiff winners were awarded damages of more than $250,000, while about 4 percent got more than $1 million.

State courts handled nearly 27,000 civil cases through bench or jury trials. Sixty-one percent of them involved a tort claim, and the most common tort claim involved motor vehicle accidents.

Out of the 14,000 civil trials that went in the plaintiffs' favor, punitive damages were awarded in about 5 percent of the cases, with $64,000 as the median punitive damages award.

The report also pointed to a major drop in the number of civil trials, with numbers decreasing by 52 percent from 1992 to 2005 in the nation's 75 most populous counties. In these counties, the median final award also decreased, from $72,000 in 1992, to $43,000 in 2005.

But some tort cases did see higher awards. In products liability trials, median awards were five times higher in 2005 and median medical malpractice awards more than doubled, from $280,000 in 1992 to $682,000 in 2005.

Access the DOJ site here; where you will find this link to the 20-page report.

Posted by Marcia Oddi on Thursday, October 30, 2008
Posted to Courts in general

Wednesday, October 29, 2008

Ind. Courts - Charges filed against Senior Judge Walter P. Chapala

From a just-issued release:

The Indiana Commission on Judicial Qualifications filed formal charges of judicial misconduct against the Honorable Walter P. Chapala, a Senior Judge and former Judge of the LaPorte Superior Court #1, the Commission announced today.

The Commission filed a “Notice of the Institution of Formal Proceedings and Statement of Charges” with the Clerk of the Indiana Supreme Court accusing Senior Judge Chapala of violating ethical rules for judges. The charges stem from the judge’s conduct in two separate cases. In the first allegation, the Commission charges that Senior Judge Chapala, when he was the elected judge, suspended a significant portion of a man’s prison term in the Department of Corrections in exchange for the man’s father’s $100,000.00 contribution to two court programs. In the second allegation, the Commission charges that Senior Judge Chapala, also while an elected judge, instituted contempt proceedings against the Sheriff of LaPorte County for having lawfully returned Chapala’s daughter-in-law’s nephew over to Michigan authorities, then continued to preside over the nephew’s Indiana case. * * *

Senior Judge Chapala is entitled to file an answer to the charges within 20 days, after which the Supreme Court will appoint a panel of three judges to preside over an evidentiary hearing and report its findings to the Indiana Supreme Court. If the Court finds the Commission proved its charges, it will determine the appropriate sanction, which could involve discipline against Senior Judge Chapala both as a senior judge and as an attorney.

The ILB has posted the 6-page charging document here. [Note: It is a large, scanned file and thus may load slowly.]

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Indiana Courts

Ind. Decisions - "Court upholds conviction in quadruple killing"

The Supreme Court's decision yesterday in the case of Bassett v. State (see ILB summary here) is the subject of an AP story today that begins:

COLUMBUS, Ind. - The Indiana Supreme Court has upheld the convictions and life sentence for a man convicted of killing a woman and three children while they were on a camping trip in Bartholomew County.

Robert Bassett Jr. had claimed in his appeal of his four murder convictions that Bartholomew County Prosecutor Bill Nash's review of the phone calls between he and his attorney was unethical and affected the outcome of the trial.

Nash had listened to the phone calls recorded while Bassett was in the Bartholomew County Jail. The jail's automated system warned callers that the conversations were being recorded.

The Supreme Court's ruling issued Tuesday said that the phone calls were not confidential or privileged.

"Bassett's decision to proceed with calls to his attorney after receiving the automated warnings and understanding their implications constituted a knowing waiver of the attorney-client privilege," Justice Frank Sullivan Jr. wrote.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Ind. Sup.Ct. Decisions

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

In Jack Bell v. DaimlerChrysler Corp. (SD Ind., Judge Tinder), a 26-page opinion, Judge Rovner writes:

Pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), the plaintiffs-appellants brought suit in the district court al- leging that defendant-appellee DaimlerChrysler Corpora- tion (“Chrysler”) breached its contractual obligations to certain workers laid off in the late 1970s and early 1980s by failing to recall these workers for job openings at Chrysler’s plants in Kokomo, Indiana. The district court granted summary judgment in favor of Chrysler, reasoning in part that the plaintiffs had failed to exhaust their intra-union remedies prior to bringing suit. Bell v. Daimler Chrysler Corp., 2007 WL 1266773 (N.D. Ill. May 1, 2007). We agree and affirm.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In The Marriage of: Suzanne Hebert Hamilton v. Richard Wayne Hamilton , a 15-page opinion, Judge Vaidik writes:

Suzanne Hamilton appeals the trial court’s order finding that her former husband, Richard Hamilton, was not in contempt of court for failing to pay child support as ordered by a Florida trial court. We hold that the trial court’s decision to enforce the Florida child support obligation for less than the amount ordered by the Florida court was not an impermissible modification under the Uniform Interstate Family Support Act (“UIFSA”). We also find that the trial court did not abuse its discretion because the evidence clearly shows that Richard complied with the Indiana trial court’s order. We affirm.
NFP civil opinions today (2):

Ronald R. Mote and Carrie J. Mote v. Jess A Wilkinson and Tracy E. Wilkinson (NFP) - "The Motes raise several issues, of which we find the following restated issue dispositive: whether the trial court erred when it found that the Motes committed fraud by making a material misrepresentation as to the condition of the septic system, which was made with knowledge or reckless ignorance of its falsity. We affirm. "

T.N. v. B.D. (NFP) - "Tracie M. Nelson (Mother) appeals the trial court’s modification of custody order, which granted Billy Dupree (Father) legal and physical custody of the parties’ daughter, K.D. She presents the following restated issue for review: Did the trial court abuse its discretion by modifying custody? We affirm. "

NFP criminal opinions today (3):

Santos R.C. v. State of Indiana (NFP)

George W. Hill, Jr. v. State of Indiana (NFP)

Joshua J. Smedley v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Ind. App.Ct. Decisions

Law - "Get Ready to Relearn the ADA"

An important heads-up article today in Legal Times, reported by Lawrence Lorber, Fredric C. Leffler and Samantha Morris. It begins:

Get ready to relearn the Americans with Disabilities Act -- by Jan. 1, 2009. New legislation signed last month has defanged a common employer defense, and the changes are going to have real repercussions in the workplace.

On Sept. 25, 2008, with his father looking on, President George W. Bush quietly signed legislation that significantly broadened the scope of protection available under the ADA. The legislation, known as the ADA Amendments Act of 2008 (ADAAA), "carries out the ADA's objectives" to expand coverage by, among other things, expressly rejecting Supreme Court cases that narrowly construed the definition of "disability" under the ADA.

The critical inquiry under the amended law is no longer on whether the individual has a disability, which has been a primary battleground of past court decisions. Rather, as of Jan. 1, 2009, the focus is directed to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees.

For background, see this ILB entry from Sept. 12 and this one from June 5th.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

In Stephanie Bailey v. Lewis Mann, a 4-page, 5-0 opinion, Justice Boehm writes:

The parties entered into a property settlement agreement awarding a jointly leased automobile to the wife. There was no express requirement in the agreement that the wife remove the husband’s name from the lease. We hold that the law does not imply such a requirement in the absence of an express provision addressing it. * * *

The trial court stayed its order requiring the wife to remove the husband’s name from the lease pending her appeal.

The Court of Appeals affirmed the trial court in an unpublished memorandum decision. Bailey v. Mann, No. 34A04-0709-CV-506, slip op. at 2 (Ind. Ct. App. Feb. 20, 2008). The Court of Appeals agreed with the trial court’s conclusion that the Property Settlement Agreement was ambiguous, and held that the trial court correctly ordered the wife to remove the husband’s name from the lease to effectuate the “spirit” of the Property Settlement Agreement. Judge Kirsch dissented, observing the difficulty and expense of removing a party from a joint debt. * * *

We agree with the wife and Judge Kirsch. The Property Settlement Agreement requires the wife to make payments on the lease, but does not require her to refinance or remove the husband’s name from the lease. The husband is correct that the agreement provides the wife with “separate” assets. However, the term “separate” is used generally to describe all assets, and the phrases “subject to the lease thereon” and “joint debt” specifically modify the Pontiac G-6. As Judge Kirsch pointed out, the husband was free to negotiate a provision explicitly requiring the wife to remove his name from the lease. In fact, property settlement agreements frequently cover refinancing and removal of one party’s name from a joint debt. * * *

For several reasons, notably the desire to avoid refinancing costs, one or both of the parties may have agreed to leave both names on the lease or omitted to address the issue. We therefore do not find a requirement to remove the husband’s name to be an inevitable inference from an award of the vehicle to the wife. * * *

We reverse the part of the trial court’s order requiring the wife to remove the husband’s name from the Pontiac G-6 lease and affirm the part denying the wife’s motion for attorney fees.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Ind. Sup.Ct. Decisions

Law - "A Myth of Voter Fraud"

The Washington Independent (which "belongs to a network of state-based online news sites founded by the Center for Independent Media") had an article earlier this week by Daphne Eviatar headed "A Myth of Voter Fraud: In Pursuit of an Unlikely Crime." Some quotes:

For months now, Republicans have been claiming that voter fraud is rampant and that government officials aren’t sufficiently cracking down. Democrats insist that voter fraud is practically nonexistent –- the real problem is intimidation and harassment of voters at the polls, they say.
The story includes some discussion of the ACORN controversy.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to

Ind. Courts - "Appeals court visits Ball State"

Sean Armie reports in the Ball State Daily News:

The Indiana Court of Appeals offered students a glimpse at the judicial process in Pruis Hall on Tuesday.

More than 200 Ball State University students and faculty gathered to watch a panel of three judges listen to oral arguments for the case of Melissa Christian v. The State of Indiana. * * *

[Christian was found intoxicated in a parking area adjacent to a private residence. Christian argues that the evidence is insufficient to support her conviction because the State failed to prove that she was in a "public place."]

Attorney Joe Thoms, speaking on behalf of Christian in Pruis Hall on Tuesday, said Christian was not on public property because the parking area she was arrested in was private and was next to a private residence.

Attorney Arturo Rodriguez, representing the state of Indiana, argued that Christian was on public property at the time of the arrest because the parking lot didn't belong to any particular person and was used by many people wishing to park their vehicles.

The two attorneys delivered their arguments to the panel of three judges: Chief Judge John G. Baker, Judge Paul D. Mathias and Judge Elaine B. Brown.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Indiana Courts

Ind. Courts - "Supreme Court won’t halt molest trial"

Shawn McGrath of the Anderson Herald Bulletin reports:

The Indiana Supreme Court denied Tuesday a defense attorney’s emergency request to stop a Tipton man’s trial on child molestation charges and ordered it to proceed.

Defense attorney Zaki Ali filed the motion Tuesday on behalf of Steven W. Everling, shortly after Everling’s trial began with jury selection in Madison Circuit Court. Ali sought the postponement after Judge Fredrick Spencer refused Ali’s request for a new judge.

Ali had asked for a new judge in five criminal cases in September after Spencer purportedly used an expletive to describe another of Ali’s clients, Christopher J. Mier, during Mier’s initial court hearing in July. * * *

While the Supreme Court justices refused to halt Everling’s trial, they did ask for Spencer to write a brief responding to Ali’s claim that Spencer should have recused himself from the five cases. The Supreme Court also gave the Madison County Prosecutor’s Office and Indiana Attorney General’s Office the opportunity to file briefs. The deadline is Nov. 10 to file the briefs, and then the Supreme Court will take the issue into consideration.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Indiana Courts

Ind. Decisions - Curley early voting oral argument tomorrow [Updated twice]

Note: This entry has been UPDATED and moved to the top of the list.

The oral argument in the case of John B. Curley, et al vs. Lake County Board of Elections and Registration, et al will be tomorrow, Thursday, Oct. 30th, before a Court of Appeals panel. (Oddly, the names of the panel members are not yet available - generally they are listed on the COA oral arguments calendar.)

The argument will be webcast and you may view it live at 1:30 PM EDT, or later, via this link.

The ILB so far has received a copy of only one brief - the "Motion of the State of Indiana to intervene for purposes of defending the validity of state statutes or, in the alternative, for leave to file a brief as amicus curiae in support of appellants." of the Attorney General, accompanied by the 27-page "Brief of the State of Indiana as interneor or amicus curiae."

Hopefully, someone out there can send the ILB copies to post of one or the other (or both) of the party's briefs, to add to this list of available documents:

Here is a current list of all the ILB entries on the Lake County early voting dispute.

[Updated at 9:50 AM]

Order issued by the COA on 10/28/08:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

APPELLANTS' REQUEST FOR "AN IMMEDIATE STAY OF ALL EARLY IN-PERSON VOTING IN THE HAMMOND, GARY AND EAST CHICAGO SATELLITE CENTERS," REQUESTED WITHIN THE BRIEF OF APPELLANTS, IS DENIED.

FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE MS

Order issued by the COA on 10/28/08:
HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

1. THE STATE OF INDIANA FILED ITS MOTION OF THE STATE OF INDIANA TO INTERVENE FOR PURPOSES OF DEFENDING THE VALIDITY OF STATE STATUES OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLANTS.

2. THE STATE OF INDIANA'S MOTION TO INTERVENE IS DENIED.

3. THE STATE OF INDIANA'S MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLANTS IS GRANTED.

4. THE CLERK OF THIS COURT IS DIRECTED TO FILE THE STATE'S BRIEF OF AMICUS CURIAE AS OF THE DATE OF THIS ORDER.

FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE MS

[Updated at 2:53 PM] I've just received a document containing the two above orders, an order re webcasting, plus copies of orders granting temporary admission.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Ind. App.Ct. Decisions

Environment - "Coal plant foes seek Daniels' e-mails" [Updated]

A number of Indiana papers today are carrying this AP story by Rick Callahan. Some quotes:

Opponents of Duke Energy Corp.’s $2.35 billion coal gasification plant want Gov. Mitch Daniels to turn over e-mails, letters and other communications from his office to state regulators and Duke Energy related to the project.

Three citizens and environmental groups filed a public disclosure request with Daniels’ office Tuesday, two weeks after suffering a court setback in their bid to halt the plant.

The groups’ filing includes a request for e-mails, letters, faxes and any other “actions, public or nonpublic” that the governor or his administration may have taken to promote the 630-megawatt plant being built near Edwardsport about 90 miles southwest of Indianapolis.

Grant Smith, executive director of the Citizens Action Coalition of Indiana, said his group, the Sierra Club and Valley Watch believe the Daniels administration had been “too cozy” with the coal and utility industries before and after the plant was approved in November 2007.

This effort is reminiscent of successful efforts by the Gary Post-Tribune (see story's second paragraph) to obtain IDEM e-mails re certain communications with BP.

[More] Here is a press release issued by the groups filing the email disclosure request: Hoosier Chapter Sierra Club; Valley Watch; Indiana Citizens Action.

[Updated 11//2/08] "Daniels Administration Too Cozy With Coal Industry? Three Groups File Public Records Demand to Expose Ties Between Governor, Duke Energy" is the headline to this MarketWatch release dated Oct. 29.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Environment

Ind. Gov't. - More on "Marion County Sheriff has spent $3M on law firm"

Updating this entry from Oct. 27th, the Indianapolis Star has an editorial today headed "Time to bail out of sweetheart legal deal." It begins:

As Star reporter Brendan O'Shaughnessy revealed this week, Marion County Sheriff Frank Anderson has shelled out $3.1 million in public money to the Locke Reynolds law firm since he took office in 2003. Last year, he signed five contracts with Locke Reynolds that could cost the public another $1.5 million.

Who's the attorney handling most of this work for the sheriff? It just happens to be Kevin Murray, who just happened to run Anderson's election campaigns in 2002 and 2006.

Anderson argues that he needs all of this extra legal assistance, despite the 27 public lawyers already employed to represent city and county agencies, because his department is so large and complex.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Indiana Government

Courts - Interesting items from 7th Circuit yesterday

Howard Bashman of How Appealing has an entry on two non -Indiana items yesterday that may be of interest, one re a discussion of the pros and cons of class actions, the other where "Judge Posner rejects plaintiffs' motion to strike the entire fact section from the defendants' appellate brief."

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Ind. (7th Cir.) Decisions

Courts - "Appeals Courts Pushed to Right by Bush Choices"

Charlie Savage of the NY Times has a lengthy article today on the reshaping of the federal courts. Some quotes:

On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.

They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year — half what it considered a generation ago. And Mr. Bush’s appointees have found allies in like-minded judges named by Mr. Bush’s father and Reagan.

Republican-appointed judges, most of them conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit. * * *

Appeals courts tend to change the law incrementally rather than in rapid shifts. They are constrained to follow Supreme Court precedent, and most of their work consists of unanimously disposing of routine cases.

Still, every year courts encounter some controversial cases in which they have greater discretion. In such circumstances, several studies have shown that judges appointed by Republican presidents since Reagan have ruled for conservative outcomes more often than have their peers.

They have been more likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.

Posted by Marcia Oddi on Wednesday, October 29, 2008
Posted to Courts in general

Tuesday, October 28, 2008

Ind. Courts - La Porte Superior Court 2 judge contest

Dave Hawk reports in the Michigan City News-Dispatch, in a story that begins:

The Republican running for La Porte Superior Court 2 judge, Thomas Rutkowski, grew up in Wisconsin, but has been in Michigan City for 35 years.

Rutkowski brings something of an outsider's perspective, but it's because he spent 20 years as an executive in a major steel corporation, while his Democratic opponent, Richard Stalbrink, who was born in the southern La Porte County town of La Crosse, clerked for two local judges, worked as a deputy prosecutor in the county and has been a magistrate in Circuit Court for a year.

Rutkowski and Stalbrink vie in the election next Tuesday to replace retiring Judge Steven King.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Adam Drake v. State of Indiana , a 16-page opinion, Chief Judge Baker writes:

Appellant-defendant Adam Drake appeals his conviction and sentence for Battery, a class D felony. Specifically, Drake argues that his Sixth Amendment right to counsel was violated because he did not knowingly and intelligently waive that right when the trial court granted his request to proceed pro se. Concluding that Drake did not make a knowing and intelligent waiver of his right to counsel, we reverse and remand for new trial. * * *

Again, we stress that whether or not a defendant made a knowing and intelligent waiver of the right to counsel depends upon the totality of the circumstances in each individual case, and there are no specific guidelines or “talking points” that a trial court must follow. Poynter, 749 N.E.2d at 1126. Rather, the trial court must determine whether a voluntary, knowing, and intelligent waiver exists by making certain that the defendant is aware of the dangers and disadvantages of proceeding without counsel and ensuring that the record reflects that the defendant made the decision with his or her “eyes open.” Osborne, 754 N.E.2d at 920-21. The guidelines discussed above are only meant to be a resource to trial courts in making this sometimes difficult determination.

In Johanna P. Williams v. State of Indiana , a 20-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that Williams was sentenced in violation of Blakely, so we remand this cause to the trial court to allow the State the opportunity to properly establish the position of trust aggravator. However, we also conclude that the evidence was sufficient to support the trial court’s determination that Williams is a sexually violent predator and that the lifetime registration requirement, as applied to Williams, does not violate constitutional prohibitions on ex post facto laws. Affirmed in part, reversed in part, and remanded with instructions.
In Ronald Lynn Scott, Jr. v. State of Indiana , a 14-page opinion, Judge Rley concludes:
Based on the foregoing, we conclude that (1) the trial court did not err in failing to hold a hearing requiring the doctors to explain their conclusions regarding Scott’s alleged status as a sexually violent predator and (2) the evidence is sufficient to support the trial court’s finding that Scott is a sexually violent predator. Affirmed.
NFP civil opinions today (1):

Lafayette Accounts Svc., Inc. v. Larry Richard Bartley (NFP) - "Lafayette argues that inasmuch as there are no issues of material fact and it is entitled to judgment as a matter of law, the trial court should have granted summary judgment in its favor on its complaint against Bartley for an account stated based on medical bills that Bartley has allegedly failed to pay. Finding that Lafayette is entitled to judgment as a matter of law, we reverse and remand with instructions. "

NFP criminal opinions today (9):

S.M.J. v. State of Indiana (NFP)

Jarmarcus T. Lasley v. State of Indiana (NFP)

Scott Morris II v. State of Indiana (NFP)

Michael Johnson v. State of Indiana (NFP)

Heartfield Steele v. State of Indiana (NFP)

Gregory Scott Michael v. State of Indiana (NFP)

Ronald Lynn Scott, Jr. v. State of Indiana

Brian Wagner v. State of Indiana (NFP)

Shaun A. Miles v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Bassett v. State, an 18-page, 5-0 opinion, Justice Sullivan writes:

Robert Bassett, Jr., appeals his four convictions for murder and sentences of life imprisonment without the possibility of parole primarily on grounds that the prosecuting attorney in this case listened to a number of non-confidential telephone conversations that Bassett had with his lawyer. This conduct did not violate Bassett’s legal rights or prejudice him at trial. We affirm the convictions and sentences.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Ind. Sup.Ct. Decisions

More blogging to follow later today

More ILB entries will follow over the next several hours.

I attended a very good CLE today on Appellate Practice and will give you a taste of some of what I learned in a day or two. One of the most interesting subjects on the agenda was the NFP opinions issue.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to About the Indiana Law Blog

Ind. Decisions - Still more on: Curley Plaintiffs petition for immediate consideration, denied by Supreme Court, granted by COA

Yesterday, The ILB asked readers to submit the briefs in the Curley COA appeal. Here is what has been received so far:

The AG’s motion and brief.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Journal Gazette on state appellate judicial retention

The Fort Wayne Journal Gazette has an editorial today, covering both local and appellate judges. Some quotes:

Hoosiers statewide are being asked whether to retain three state Supreme Court justices, a court of appeals judge and the state tax court judge.

In addition, six Allen County judges are up for election this year – but none faces opposition, so they all will be re-elected.

Indiana’s retention system may have limited choices, but that is arguably good for justice. States with competitive elections for Supreme Court and appeals court often find that special interests seek to influence the election based on a narrow decision or type of law. Lifetime appointments without review, though, make judges completely unanswerable to virtually anyone.

Hoosiers should not decide to throw off a judge based on one decision, but the retention system does give voters the opportunity to replace a judge who has been chronically irresponsible.

Unlike the U.S. Supreme Court, the Indiana justices don’t consistently follow conservative-liberal voting blocs. Of the three justices up for a yes-or-no retention vote, Theodore Boehm tends to be slightly more liberal than Chief Justice Randall Shepard or Justice Brent Dickson, particularly on criminal cases. But all the justices have proved to be independent. Boehm was appointed to the court by Evan Bayh; Shepard and Dickson by Gov. Robert Orr.

Shepard, to his credit, has taken a number of steps to make the courts statewide more open and accessible to citizens.

Thomas Fisher, the sole judge of Indiana’s Tax Court, is up for retention. Fisher is best known for his 1996 decision throwing out Indiana’s method for assessing real estate.

Carr Darden, chief judge of the Indiana Court of Appeals’ 4th District, is also up for retention.

The Indiana Bar Association surveyed its members, and the lawyers overwhelmingly favored retaining each of the judges.

Voters will also find the names of Allen County judges on their ballots, but they are all uncontested.

Circuit Court judges run on partisan ballots, and Republican incumbent Thomas Felts is unopposed.

The Superior Court judges in Allen County run on a non-partisan basis.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Judicial Retention

Ind. Courts - "Merit selection of Lake Superior judges supported by court commission"

Marisa Kwiatkowski of the NWI Times reports today:

INDIANAPOLIS | The Indiana Commission on Courts voted 9-0 Monday in support of legislation that would change the selection process for Lake County Superior Court county division judges.

Under the legislation, the judges would be selected by merit rather than the current system of elections.

The commission also voted in favor of protecting merit selection in St. Joe County, Magistrate Mike Pagano said.

Representatives from the Lake County Bar Association, county commissioners and Lake Superior Court Judges John Pera and Julie Cantrell were among those who spoke in favor of merit-based selection before the commission recently in Indianapolis.

Lake County is one of two counties in the state in which most superior court judges are nominated by a panel of lawyers and lay people and appointed to office by the governor. They face the voters every six years in nonpartisan retention referenda.

Lake County commissioners argue shifting the four judges who are still elected into a merit-based selection system would save taxpayers the expense of employing larger court staffs through patronage jobs.

The county bar association unanimously adopted a resolution that favors the extension of merit-based selection to the county courts division.

The Indiana Legislature ultimately controls any changes to the process of selecting judges.

See earlier ILB entry here.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Indiana Courts

Ind. Courts - "Seated Porter County judges raise big bucks"

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

VALPARAISO | The two incumbent judges seeking re-election have raised far more money than their challengers, with a large share of their contributions coming from local attorneys, according to the latest campaign finance forms.

Porter Superior Judge Roger Bradford, a Republican seeking a fifth term, topped the list, raising $30,580 since April, which he added to the $8,090 he already had on hand.

His Democratic opponent, William Suarez, reported raising $3,557 since April.

Another incumbent, Democrat David Chidester, who is seeking a second six-year term, raised $17,064 since April and carried over $20,437, according to his finance form.

Chidester contributed $5,000 of his own money earlier this month and received $2,180 from various unions.

Posted by Marcia Oddi on Tuesday, October 28, 2008
Posted to Indiana Courts

Monday, October 27, 2008

Ind. Law - More on "ACORN followed law on suspect voter registrations" [Updated]

Updating this ILB entry from Oct. 18, Tim Evans of the Indianapolis Star, who wrote the earlier story, reports today:

Secretary of State Todd Rokita said today that a preliminary investigation by his office has found evidence of “multiple criminal violations, including possible state and federal racketeering laws,” in conjunction with hundreds of fraudulent voter registration applications filed in Lake County.

The findings and a request for prosecution are detailed in a letter Rokita, Indiana’s top election official, sent last week to Lake County Prosecutor Bernard A. Carter, U.S. Attorney David Capp and Michael Welch, special agent in charge of the FBI's Indianapolis office.

The allegations of knowingly submitting fraudulent applications, a Class D felony, are aimed at the left-leaning activist group, Acorn, which conducted registration drives in several key presidential battleground states. Acorn is being investigated for similar issues in about a dozen other states.

Lake County election officials have alleged, and Acorn officials confirmed, that the organization submitted hundreds of potentially bad voter registration applications earlier this month.

Acorn officials contend they are required by law to submit all applications it collects, and a spokesman said they made efforts to call attention to applications that appeared to be problematic. The official said Acorn was the victim of unscrupulous employees and the organization fired at least five of those involved with the Lake County drive.

Rokita’s letter, however, states that “complying with the law to submit legitimate applications does not allow Acorn officials to evade the law against knowingly submitting fraudulent applications.”

These statements are also in Patrick Guinane's NWI Times story:
ACORN, the Association of Community Organizations for Reform Now, has blamed the bulk of the invalid registration on a handful of unscrupulous canvassers, who were paid $8 to register voters. Kettenring said state law requires the group to turn in every application collected, so it segregated the sketchy forms before submitting them to Lake County officials.

Rokita argues ACORN knowingly submitted fraudulent applications, which he said is illegal.

"Simply put, complying with the law to submit legitimate applications does not allow ACORN officials to evade the law against knowingly submitting fraudulent applications," Rokita wrote.

The Times also has a link to the Secretary of State's 6-page, Oct. 22nd letter to the DOJ, with many redactions. Here is the portion about turning in all applications:
IV. ACORN'S Public Defense is not Relevant to the Violations of Law

If ACORN is contending that it brought this matter to the attention of local election officials, then NWI-ACORN will surely wish to assist law enforcement in bringing the bad actors inside the organization to justice. ACORN has also claimed to be in compliance with Indiana law IC 3-14-2-5(b). But contrary to the claims of ACORN, a person who complies with the law to submit completed voter registration applications is not able as a result to evade the law against knowingly submitting false or fraudulent applications.

Indiana Code 3-14-2-5(b) provides that a person who "fails to file or deliver to the proper officer a . . . form of registration after the . . . form has been executed commits a Class A misdemeanor." The law exists to prevent "lost" applications of those thought to be supporters of an opposing party candidate, for example. Indiana Code 3-14-3-1.1 makes it a Class D felony for a person to knowingly procure or submit "voter registration applications known by the person to be materially false, fictitious, or fraudulent" and IC 3-14-2-1 makes it a Class D felony for a person to conspire with another in such behavior.

Every person has the duty under the law not to aid or assist others in breaking the law. Clearly, ACORN representatives continued to submit applications they knew to be fraudulent to voter registration officials rather than submit evidence and contact information for possible suspects to local law enforcement officials (who have offices in the same building). Simply put, complying with the law to submit legitimate applications does not allow ACORN officials to evade the law against knowingly submitting fraudulent applications [ILB - Emphasis in the original.]

Judge for yourselves. Here is a link to IC 3-14-2-5.

[Updated 10/28/08] Tim Evans has an updated Acorn story in today's Star, along with its own sidebar referencing the Indiana Code:

On one hand...

Secretary of State Todd Rokita alleges that ACORN violated Indiana Code 3-14-3-1.1 by "procuring or the submission of false, fictitious, or fraudulent registration applications," a Class D felony.

...and on the other

ACORN officials contend, and the secretary of state's office last week confirmed, that groups that run voter-registration drives must submit all applications they collect. That requirement is laid out in IC 3-14-2-5, setting the stage for the prosecution of any "person who recklessly destroys or fails to deliver an absentee ballot application to the proper officer." Such an act is a Class A misdemeanor.

The Star also has posted a copy of the Rokita letter to the DOJ.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Indiana Law

Ind. Decisions - More on: Curley Plaintiffs petition for immediate consideration, denied by Supreme Court, granted by COA

In the Lake County early voting case: Per the COA Order issued Friday, Oct. 24th, Appellant's brief was due at noon today. Appellees' briefs are due by noon Wednesday.

I've just checked the docket and Appellants' John B. Curley and Jim B. Brown's brief has been filed.

In addition, AG Carter has filed a motion for the State of Indiana to intervene "for purposes of defending the validity of state statues or, in the alternative, for leave to file a brief as amicus curiae in support of Appellants."

Here is a copy of the docket in 45 A 03 - 0810 - CV - 00512, as of this afternoon.

The ILB hopes to timely post the briefs in this matter and is hoping readers with access will be able to forward copies ASAP.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Five Lake County judges are seeking retention on the November ballot"

Marisa Kwiatkowski writes today in the NWI Times in a story that begins:

Lake Juvenile Court Judge Mary Beth Bonaventura, Lake Criminal Court judges Clarence Murray and Diane Ross Boswell and Lake Superior Court judges George Svetanoff and Elizabeth Tavitas are each considered for retention on a six-year cycle.

Bonaventura, Murray and Svetanoff were all retained in 2002 with around 68 percent approval. Neither Boswell nor Tavitas had been appointed to the bench yet in 2002.

The Lake County Bar Association recently polled its members on whether the judges should be retained. The results: Svetanoff got 87 percent approval, Bonaventura was recommended by 81 percent, Tavitas by 80 percent, Murray by 78 percent and Boswell by 71 percent, data shows.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Indiana Courts

Law - More on "Do sex offender laws make homelessness a crime?

Updating this ILB entry from July 8th, the same reporter, Bill Rankin of the Atlanta Journal-Constitution, writes today:

The Georgia Supreme Court on Monday declared unconstitutional a provision of the sex-offender registry law, because it fails to inform the homeless who have no address how they can comply with the statute.

In a 6-1 decision, the court found that the law’s registration requirements are “unconstitutionally vague.” * * *

The law, one of the harshest in the nation, requires sex offenders to provide a route or street address within 72 hours after being released from custody or moving to a new address. The law states that an offender cannot use “homeless” as an address. * * *

In its opinion on Monday, the court said the law provides no standards or guidelines that would put homeless sex offenders without a street or route address on notice of what is required of them. This leaves them to guess as to how to achieve compliance with the law’s reporting provisions, the decision said.

This lack of direction “leads to arbitrary and discriminatory enforcement,” said the opinion, written by Justice Hugh Thompson.

“Our decision renders unconstitutional the address registration requirement as applied to homeless sex offenders, who, like Santos, possess no street or route address for their residence,” Thompson wrote.

The justice added that the court was “by no means holding that all homeless sex offenders are exempt from the statute’s reporting requirements.”

Here is the 15-page opinion in the case of Santos v. State.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Courts in general

Courts - "In Drug Case, Justices to Weigh Right to Sue"

That is the headline to this story today in the WSJ about the upcoming oral arguments before the Supreme Court. This story, by Alicia Mundy and Shirley S. Wang, begins:

For nearly a century, Americans have been able to sue drug companies for deaths or injuries caused by medicines. Now the pharmaceutical industry and other big businesses are hoping the Supreme Court will sharply curb that right.

n a case called Wyeth v. Levine, which the court will hear next week, a Vermont guitarist named Diana Levine lost an arm to gangrene caused by an improperly administered nausea drug. A Vermont jury awarded her $6.7 million in damages from Wyeth, accepting her argument that the drug maker should have put stronger warnings on the label.

In its appeal of the verdict, the drug maker says the drug's label was approved by the Food and Drug Administration, and it argues the federal regulator's judgment should trump state law on issues of product safety. Many lawsuits are based on state consumer-safety regulations that often are stronger than federal standards.

"This case is worth tens of billions to the pharmaceutical industry," said Richard Rubin, Ms. Levine's lawyer.

The Chamber of Commerce, the nation's largest business lobby, has called the battle -- with some hyperbole -- the business case of the century. The Bush administration has long promoted the idea that federal law pre-empts state lawsuits. It has included the notion of pre-emption in regulations for dozens of products, ranging from suntan lotion to seat belts, and has weighed in on Wyeth's side before the Supreme Court.

Here are some earlier ILB entries on this case, from 8/13/08 and 3/5/08.

Posted by Marcia Oddi on Monday, October 27, 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 (0):

NFP criminal opinions today (4):

Jody L. Shoemaker v. State of Indiana (NFP)

Derek D. Fingers v. State of Indiana (NFP)

Ryan C. Garcia v. State of Indiana (NFP)

Saul O. Glassman v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Ind. App.Ct. Decisions

Environment - "EPA to Loosen Controls On Power-Plant Pollution"

Siobhan Hughes of the WSJ is reporting today:

WASHINGTON -- The Bush administration is moving to adopt rules that would loosen pollution controls on power plants, by judging the plants on their hourly rate of emissions rather than their total annual output, people familiar with the matter said.

Under current policy, power plants that make upgrades to operate longer and increase emissions must install pollution-control equipment.

The proposed rules, which seek to make it easier for older power plants to extend their life span and upgrade without installing costly new equipment, are tied to an hourly rate of emissions. As long as a power plant's hourly emissions stay at or below the plant's historical maximum, the plant would be treated as if it were running more cleanly, even if its total annual emissions increased as plant operators stepped up operations.

The Environmental Protection Agency had outlined the most-recent version of the rules in 2007.

It isn't clear how soon the administration plans to finalize the rule change, though one person familiar with the agency's internal deliberations said work on the rule has sped up noticeably in recent weeks. EPA spokesman Jonathan Shradar said Sunday that "work continues" on the proposed rule change and that "no timeframe has been set" for adopting it. Bush administration officials have said the proposed change would provide power plants clearer and simpler rules for operating safely, efficiently, and affordably and that other EPA programs could be relied upon to drive down plants' emissions.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Environment

Ind. Decisions - 7th Circuit decides 4 Indiana cases today

In US v. Castaldi (ND Ind., Judge Lorenzo) - a 14-page opinion, Judge Flaum writes:

Kenneth Castaldi appeals his conviction on thirteen counts of mail fraud and embezzle- ment from an employee benefits plan. The convictions stemmed from a grant that the Northwest Indiana District Council of Carpenters (the Union) obtained for the purpose of having the Northwest Indiana Joint Ap- prenticeship Committee (the JAC) teach certain classes to Union members. Castaldi, the director of the Joint Ap- prenticeship Committee, was convicted of stealing some of this grant money. Castaldi now raises a number of challenges to his conviction on appeal. He claims that (1) his indictment was legally insufficient; (2) the prosecu- tion improperly presented a mug shot to the jury; (3) the district court improperly excluded testimony as hearsay; (4) the government’s evidence on the mail fraud charge was insufficient to support a conviction; (5) the district court failed to properly consider the sentencing factors contained in 18 U.S.C. § 3553(a); and (6) the government did not present sufficient evidence of his intent to embez- zle. For the reasons explained below, we affirm the judg- ment of the district court.
In US v. Franklin (SD Ind., Judge Tiner), a 19-page opinion, Judge Flaum writes:
Cleveland Franklin, Jr. was stopped by the Indianapolis Police Department on Decem- ber 1, 2005, and a subsequent search of his car led police to over 270 grams of crack cocaine hidden in the dash- board. Franklin pled guilty to one count of possession of cocaine with intent to distribute and one count of carrying a firearm during a drug trafficking crime. Before pleading guilty, Franklin raised a number of challenges to the search of his car, which he renews on appeal, along with various arguments about the indictment, the trial procedures, and his sentence. For the following reasons, we affirm the decision of the district court.
In US v. Miller & Fines (ND Ind., CJ Miller & Judge Sharp), a 6-page opinion, Judge Easterbrook writes:
Leroy Miller took in Ricky Fines as a boarder at his farm. Both Miller and Fines are interested in guns. They bought, refurbished, and sold many weapons while Fines lived in Miller’s house. Both men cleaned guns on the same workbench—whether as a joint venture, or each working on individually owned weapons, is disputed but not important. When federal agents conducted a search in April 2004, they found three weapons in the house and 31 in a shed nearby. The guns in the shed had been wiped clean of fingerprints and wrapped in blankets; the jury was entitled to infer that Fines and Miller had moved the guns to the shed in anticipation of a search. And why should they fear a search? Because Fines had a felony conviction, and Miller (whose own record was clean) knew it. A jury convicted Fines of possessing weapons despite his con- viction, in violation of 18 U.S.C. §922(g)(1), and Miller of aiding and abetting Fines’s illegal possession. See 18 U.S.C. §2. Fines was sentenced to 48 months’ imprisonment and Miller to 10 months.

Miller contends that he is innocent, because he did not learn of Fines’s criminal history until shortly before the search, and that after learning of Fines’s conviction he did not allow Fines to handle guns—indeed, that the guns had been moved from the house to the shed before Fines became a boarder. * * *

Affirmed.

In US v. Brandt (ND Ind., CJ Miller), a 14-page opinion, Judge Kanne writes:
Defendant Cory Lee Brandt and a co-defendant, Larry Adam Beck, were indicted on June 13, 2007, for crimes related to the sale of an AK-47 rifle on August 18, 2006. Beck was charged under 18 U.S.C. § 922(g)(1) with being a felon in possession of a firearm and ammunition, and Brandt was charged under 18 U.S.C. § 1001(a)(2) with making a false statement to federal agents. Beck pled guilty, and Brandt’s trial commenced on November 5, 2007. During trial, Brandt moved for a judgment of acquittal, arguing that the government had not proven all elements of the crime beyond a reasonable doubt. The district court denied the motion, which Brandt did not renew. During the jury instruction conference, Brandt requested an instruction based on the “exculpatory no” doctrine. The district court denied the request, citing Brogan v. United States, 522 U.S. 398 (1998). Brandt appeals the district court’s denial of his motion for a judgment of acquittal and its refusal to grant the requested instruction. We affirm.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Preliminary thoughts about Indiana not-for-publication opinions; isn't it time to abolish all distinctions?

[Here are some of my thoughts; a Res Gestae paper may follow. Comments would be appreciated.]

Over two years ago now, on August 23, 2006, the Indiana Court of Appeals began making its not-for-publication opinions (NFP) available online.

Approval of the Supreme Court was required for this change, because IC 33-25-3-6 provides:

The judicial opinion or decision in each case determined by the court of appeals shall be reduced to writing. Reports of these opinions and decisions may be published and distributed in the manner prescribed by the supreme court.
The Order of the Supreme Court, dated August 21, 2006, provided:
After due consideration, this Court has determined that the request shall be GRANTED, provided, however, the availability of Court of Appeals' not-for-publication memorandum decisions" on the Internet shall not in any way later or change their status as a "not-for-publication memorandum decision" for purposes of Appellate Rule 65.
Justices Sullivan and Boehm concurred in the Order. Chief Justice Shepard, and Justices Dickson and Rucker, according to the Order:
concur in result in the interests of comity, notwithstanding their belief that the posting of not-for-publication opinions on the Internet is unwise.
The posting of all the opinions of the Court of Appeals online has been a success for those wishing ready access to the work of the Court. It has also proven a success to the members of the Court of Appeals -- the change allowed the public to see that in the past they had only been viewing the tip of the iceberg insofar as the work product of the Court was concerned.

Two questions to consider:

After two years of increased familiarity with NFPs, this may be the time to consider two related questions:

Taking a broad view, there appear to be four general categories:

Looking specifically at Indiana's Rules:

Here is Appellate Rule 65, Opinions and Memorandum Decisions, subsection (D):

D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

What is a "memorandum" opinion?

A casebook, Appellate Courts [full cite to be added later], states:

We use the term "memorandum opinion" to indicate a short opinion that is significantly different from the traditional appellate opinion, which is usually more lengthy and involved. We refer to the latter as a "full opinion."
Later the casebook quotes from an essay [full cite to be added later] distinguishing between memorandum and full opinions to the effect that a memorandum opinion must convey at least (1) the identity of the case, (2) the ultimate disposition, and (3) the reasons for the result. A full opinion, on the other hand, would set forth the facts and procedural history, and spell out the reasoning as well as the reasons.

Is there any distinction in Indiana between FP and NFP, other than the stamp at the top of the opinion?

Prior to the retention election in 2006, the ILB published the following Q & A it had posed to the COA judges running for retention:

Question #2. NFP opinions.

Q. Under App. Rule 65, Court of Appeals opinions are deemed “Not for Publication” unless the case establishes, modifies or clarifies a rule of law; criticizes existing law; or involves a legal or factual issue of unique interest or substantial public importance. Recently, the Court of Appeals decided to make its NFP opinions more accessible. For many of us, that meant seeing for the first time how much work the judges on the Court of Appeals actually put out each week. What we had seen up to then was merely “the tip of the iceberg.” What surprised many of us was that other than the NFP stamp in the upper left hand corner of the first page, the NFP are no different than the “published” opinions. These are not one-page “Affirm” or “Reverse” opinions. They are full-blown opinions, sometimes split, sometimes reversing the lower court. Who makes the “NFP” determination in each case? Is it the judge who writes the opinion? How does the process operate?

A. The Court of Appeals of Indiana is one of a few intermediate appellate courts that decide every case by a full written opinion decided by a three-judge panel. You are right that there is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.

In some cases, we will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.

If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of App. Rule 65.

Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. We occasionally have a situation where somebody writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.

Who should make the designation?

With regard to the decision to designate an opinion as NFP, Rule 65(A) provides:

A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

One might wish that the basis of the panel's decision was made available along with the opinion.

Although Rule 65(B) provides that: "Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication," I'm told that such motions are not automatically granted.

With regard to the designation in general, I ended a Dec. 6, 2006 ILB entry on the status of NFPs with this:

I was struck by this statement by Scott E. Gant: "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it." From the abstract to Gant's article in the Boston College Law Review:
This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.
Howard Bashman of How Appealing is to be thanked (yet again) for spotting this article. (For more, including links, start at this ILB entry from Oct 5th.)

Is the Court of Appeals itself beginning to chafe under the NFP designation?

Brief research* has disclosed that several recent opinions of the COA have referenced or relied on NPFs:

NFP citing NFP: Mitchell v. State, an Oct. 15th NFP opinion by Judge Darden, quotes from a decision of "another panel of this Court" on p. 11, Hunter v. State (May 16, 2008), and distinguishes the current case:

Given these distinguishing facts, we believe it would be inconsistent to simply affirm Mitchell’s sentence when another panel of this Court has reduced Hunter’s sentence to the advisory sentence. Although the nature of Mitchell’s offenses is serious, based on Mitchell’s character and the fact that Hunter has received a reduced sentence, we conclude that Mitchell’s sentence is inappropriate. Therefore, we remand this cause to the trial court with instructions that it revise Mitchell’s sentence to the advisory term of ten years with two years suspended to probation.
Although not identified as such in the Mitchell opinion, Hunter is also a NFP opinion.

FP clarifying NFPs: In David King v. State (Oct. 3, 2008), a published opinion, Judge Vaidik writes at p.4 :

King contends that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B) because it does not “include any sort of mental health component.” However, interspersed within King’s inappropriate sentence argument are references to the abuse of discretion standard. We are troubled by this. As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Not for publication opinions reveal that other practitioners are making this same mistake. We therefore take this opportunity to clarify that an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant. [emphasis added by ILB]
FP (dissent) citing NFPs: A published opinion in the case of Owens v. State (5/13/08), includes a dissent by Judge May citing two NFP opinions, Knight v. State, and Turley v. State:
It is not uncommon for plea agreements to contain a defendant’s waiver of his or her right to petition for modification of sentence. See, e.g., Schippers v. State, 622 N.E.2d 993, 994 (Ind. Ct. App. 1993) (“The agreement also contained an express waiver by Schippers of his right to ‘request, file motion for, or be considered for modification of sentence, under I.C. 35-38-1-17.’”). See also Knight v. State, No. 33A01-0704-PC-165 (Ind. Ct. App. 2007) (“The Defendant specifically agrees and understands that an additional term of his agreement is that he waives any and all rights to file a petition for modification of sentence to request a change of placement that he/she may have pursuant to I.C. 35-38-1-17(b).”); Turley v. State, No. 33A04-0606-CR-309 (Ind. Ct. App. 2006) (Plea agreement provided: “The Defendant specifically agrees and understands that an additional term of this agreement is that he waives any and all rights to file a petition for modification of sentence to request a change of placement that he may have pursuant to I.C. 35-38-1-17(b).”).
_____
*Two of these examples were sent to me by a reader; I happened on to the third. There appears to be no way to search for these citations, which refer to the case number rather than to the N.E.2nd cite, past the time when the case would have been published in the NE Reporter.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending Oct. 24, 2008

Here is the just issued transfer list for the week ending Oct. 24, 2008. It is 2 pages long.

No transfers were granted last week.

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, October 27, 2008
Posted to Indiana Transfer Lists

Ind. Law - "It's the law" today examines hunting laws

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on hunting laws. The article begins:

With firearms season about to begin for deer hunters, conservation officers are reminding hunters of the most commonly violated laws and they are alerting the public that they can report dangerous or illegal hunting.

Deer firearms season -- which runs from Nov. 15 to Nov. 30 -- is the most popular of the hunting seasons. It's also the one that leads to the most violations of the law, Indiana Conservation Officer Gene Davis said.

Davis said the most common violations are:

- Hunting without a license. Licenses can be purchased online at in.gov/dnr or at some sporting goods stores.

- Illegal taking violations like shooting animals out of season or hunting with illegal weapons.

- Hunting without consent. To charge someone with hunting without consent, conservation officers simply need to find someone who can't prove he or she has consent to hunt on the land. The property owner does not have to post "no trespassing signs" and doesn't have to have previously warned the hunter.

- Baiting. It isn't illegal to feed deer or put out a salt block for them, but it is illegal to do that and then, once the deer are in the habit of coming around, to hunt them.

- Hunting from the roadway, hunting from a vehicle and using a spotlight. All are illegal because of the danger of hitting a person or some property.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Indiana Law

Ind. Courts - "Fight over Boone Co. turbines headed to court"

Richard Essex of WTHR 13 Eyewitness News had this interesting report Sunday:

Lebanon - A lawsuit between two Lebanon neighbors is being watched carefully by people in the wind turbine industry. The outcome could effect future commercial and residential development of wind turbines in Boone County and central Indiana.

Melissa and Jeff Garrard have been granted permission to build a wind turbine in their backyard after years of replacing shingles blown off the house. The couple decided to take advantage of the wind.

They applied for and received permission to build a wind turbine from the Boone County Board of Zoning Appeals. The turbine, once constructed can not exceed 140 feet, and according to Melissa Garrard, well under the height of two communication towers already in the area of their house.

However, one neighbor is objecting, claiming in local published reports that Garrard's wind turbine would adversely impact the neighborhood along with safety concerns to wildlife.

There are a handful of commercial wind farms under consideration in Boone County and a reversal by the courts could halt those plans.

Here are earlier ILB entries on wind turbines.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Environment | Indiana Courts

Ind. Gov't. - "Marion County Sheriff has spent $3M on law firm"

Brendan O'Shaughnessy has a front-page story in today's Indianapolis Star that begins:

Marion County Sheriff Frank Anderson is directing hundreds of thousands of dollars each year to his former campaign manager's law firm for outside legal services that could be handled by the city's own lawyers at no charge to the department.

Anderson uses city lawyers but also has spent more than $3 million with Locke Reynolds LLP since 2003. Last year, he signed five three-year contracts that could mean about $1.5 million more in fees for the firm. The lead Locke Reynolds attorney on the job: Kevin Murray, who ran Anderson's election campaigns in 2002 and 2006.

"It really looks political, and it doesn't pass the smell test," said Julia Vaughn, Indiana policy director for the government watchdog group Common Cause. "It sounds like they (the firm) have a great deal. At the least, it's a relationship that is being exploited to the fullest."

Mayor Greg Ballard, a Republican, said he thinks the Sheriff's Department could save money on legal costs by using city lawyers more often.

"It seems excessive," Ballard said, "and I'd rather they use corporation counsel."

But Anderson does not think his outside legal bills are too high given the size of his 1,000-employee department and the complexity of its legal work. Locke Reynolds, he said, has saved taxpayers hundreds of thousands of dollars through its work.

"We're in a unique position here as the largest department in the state," he said. "We have about 50 cases against us. I think the fruits of their labor prove that we've been very successful working with city legal in combination with Locke Reynolds."

A survey by The Indianapolis Star of other cities showed that Marion County was spending far more than others. For example, sheriff's departments in similarly sized areas -- Cincinnati and Columbus, Ohio, Minneapolis, and Charlotte, N.C. -- rely solely on public-sector attorneys who are already on the government payroll. The sheriff in St. Louis retains a part-time legal adviser for $20,000 per year.

Anderson also partly justified the expense by noting that the bulk of the firm's fees are covered by the department's commissary fund -- money that county inmates spend on phone calls and snacks -- not tax dollars.

A side-bar shows:
Most Indiana sheriffs retain a private legal adviser, but their expenses are lower. Generally, larger counties have greater legal needs and incur higher costs.

• Allen County (Fort Wayne) spends about $100,000 per year.
• Lake County has three contracts worth a total of $58,000 per year.
• Hendricks County spends about $50,000 per year.
• Hamilton County pays $3,500 per year for a legal retainer fee.
• Boone County pays $3,500 per year for a legal retainer fee.

A second side-bar:
The Marion County Sheriff's Department has five contracts for legal services with Locke Reynolds LLP. Some of the details:

1. General counsel

Services: 24-hour on-call emergency service; research, training and education; joint oversight of the department's commissary fund.

Payment terms: $83,442 per year for 415 hours; totality of hourly rates thereafter not to exceed $350,000 per year.

2. Labor and employment

Services: 24-hour on-call service; represent the sheriff in collective bargaining and other employment negotiations; represent the sheriff and department in employment matters and litigation.

Payment: Totality of hourly rates not to exceed $75,000 per year.

3. Pension board

Services: 24-hour on-call service; represent the department's pension board in all legal matters; provide legal consultation on the department's retirement and benefits plans.

Payment terms: Totality of hourly rates not to exceed $75,000 per year.

4. Jail crowding

Services: Legal representation relating to jail conditions and criminal justice system reform.

Payment terms: Totality of hourly rates not to exceed $100,000 per year.

5. Labor and employment, Indianapolis Metropolitan Police Department*

Services: 24-hour on-call service; represent the sheriff in collective bargaining and other employment negotiations; represent the sheriff and department in matters before the merit board.

Payment terms: Totality of hourly rates not to exceed $125,000 per year.

*Anderson was in charge of the IMPD last year when the contracts were signed. This contract essentially terminated in March when the mayor took over the IMPD.

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week; including "early voting" case

This week's oral arguments before the Supreme Court:

This Wednesday, Oct. 29th:

9:00 AM - Estate of Margaret H. Prickett v. Marilyn P. Womersley - A decedent's daughter filed a claim for services rendered while the decedent was under a guardianship. The St. Joseph Probate Court denied the estate's motion for summary judgment. The Court of Appeals affirmed, holding the daughter could pursue her claim in probate proceeding and there was a factual dispute about whether she rendered her services gratuitously. See Estate of Prickett v. Womersley, 885 N.E.2d 619 (Ind. Ct. App., 4/10/2008), vacated. (See ILB entry here - 6th NFP decision) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Prickett: Jeffrey P. Smith and David K. Hawk, Ft. Wayne, IN. Attorneys for Womersley: William L. Wilson and Beernard E. Edwards, Jr., South Bend, IN.

9:45 AM - Ava McSwane v. Bloomington Hospital - The mother of a patient sued the hospital and treating physician for negligence after the patient was killed by her ex-spouse soon after the patient's discharge from the hospital, but the Monroe Circuit Court granted defendants summary judgment on grounds they owed the patient no relevant duty of protection. The Court of Appeals affirmed the summary judgment for the physician but reversed the summary judgment for the hospital, concluding the trial court erred in deciding as a matter of law that the hospital owed no duty to protect the patient from her ex-husband, a suspected abuser. McSwane v. Bloomington Hosp., 882 N.E.2d 244 (Ind. Ct. App., 3/12/2008), vacated. (See ILB entry here - 4th case) The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorneys for McSwane: David W. Stone, IV, Anderson, IN. Stepehn A. Oliver, Martinsville, IN. Attorneys for Bloomington Hospital & Healthcare System: James L. Whitlatch and Holly M. Harvey, Bloomington, IN. Attorneys for Jean M. Eelma, M.D.: Edward J. Liptak and Jeremy M. Dilts, Bloomington, IN. Attorneys for Amicus Curiae, Indiana Hospital Association: Angela M. Smith and Kimberly A. Emil, Indianapolis, IN.

10:30 AM - Christine Scheible v. Fred Jackson - Scheible sued alleging Jackson was negligent and liable for the death of her son based on the dangerous condition of a tree on land that Jackson had sold to a third party under a land-sale contract. The Bartholomew Superior Court granted Jackson summary judgment. The Court of Appeals reversed. Scheible v. Jackson, 881 N.E.2d 1052 (Ind. Ct. App., 3/7/2008), vacated. (See ILB entry here.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorneys for Scheible: David W. Craig and Scott A. Faultless, Indianapolis. Attorneys for Jackson: R. Jeffrey Lowe and J. Todd Spurgeion, New Albany, IN. Eric D. Johnson, Indianapolis, IN.

Webcasts will be available here.


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

This Thursday, Oct. 30th:

1:30 PM - John B. Curley v. Lake Co. Bd. of Elections - This is the Lake County early voting case. (Here is a list of all the ILB entries, dating back to Oct. 5th, on the Lake County early voting issue.) [Where: Supreme Court Courtroom] Note: It has not yet been confirmed that these arguments will be webcast.

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

This Tuesday, Oct. 28th:

2:00 PM - Melissa Christian vs. State of Indiana - Christian appeals her conviction for Class B misdemeanor public intoxication. Christian was found intoxicated in a parking area adjacent to a private residence. Christian argues that the evidence is insufficient to support her conviction because the State failed to prove that she was in a "public place." The Scheduled Panel Members are: Chief Judge Baker, Judges Mathias and Brown. [Where: Pruis Hall, Ball State University, Muncie, Indiana ]

This Wednesday, Oct. 29th:

1:30 PM - Richard D. Duncan vs. M & M Auto Service, Inc. - Richard Duncan filed a negligence suit against M&M Auto Service, Inc., alleging he was injured due to M&M's negligent installation and maintenance of a compressed natural gas system in his employer's van. The trial court granted summary judgment for M&M, and Duncan appeals. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Brown. [Where: Cornwell Reed Building, Oakland City University, 138 N. Lucretia Street, Oakland City, Indiana]

Posted by Marcia Oddi on Monday, October 27, 2008
Posted to Upcoming Oral Arguments

Sunday, October 26, 2008

Ind. Courts - "Attorneys battle to become judge of new Floyd County court"

Matt Thacker of the New Albany News & Tribune has this report:

Two New Albany attorneys are facing off to become the first judge of the newly created Floyd County Superior Court No. 3. The campaigns have focused on what type of experience is most important for a judge.

Republican Rick Fox, 53, boasts 21 years of experience in the courtroom and has represented various agencies at different levels of government. Democrat Maria Granger, 53, says she already has judicial experience as a Supreme Court Hearing Officer and taught Business Law at Indiana University Southeast. * * *

Fox also would like to bring fellow attorney Steve Gustafson on board to help with drafting cases or decisions. He said this is a way to help speed up the court. He said Gustafson is one of the best appellate attorneys in the state, which would make it less likely that decisions will be reversed.

Fox admitted though that the county council would have to approve a new position.

Granger said she believes that hard work and her judicial experience will help ease the caseload.

“I’m very confident in my ability,” Granger said. “I don’t need to bring anyone else in.”

Posted by Marcia Oddi on Sunday, October 26, 2008
Posted to Indiana Courts

Ind. Decisions - National reports today on Indiana appellate courts' rulings on early voting case

Updating this ILB entry from yesterday, both the NY Times and NPR today had reports on the Lake County early voting issue.

The Times story is headed: "Indiana Court Won’t Rush Case, Letting Early Voting Continue."

The NPR report is headed "Voter Uncertainty In Indiana." "As Indiana hangs in the toss-up category during this presidential election season, Lake County is awash in complaints of voter registration fraud and voter suppression.."

Here is a list of all the ILB entries, dating back to Oct. 5th, on the Lake County early voting issue.

Posted by Marcia Oddi on Sunday, October 26, 2008
Posted to Indiana Decisions

Saturday, October 25, 2008

Courts - 6th Circuit issues wine shipping opinion [Updated]

Jamie Satterfield of the Knoxville News Sentinel reported yesterday:

A federal appeals court today deemed unconstitutional a state law designed to boost business for in-state wineries.

“We conclude Tennessee’s Grape and Wine Law is discriminatory on its face,” the 6th U.S. Circuit Court of Appeals opinion stated.

The ruling renders wrong a decision made last by Chief U.S. District Judge Curtis L. Collier in a case filed in Greeneville U.S. District Court by two wine lovers and an out-of-state winery, all of whom complained that the state’s regulatory scheme effectively blocked out-of-state wineries from selling directly to Tennessee consumers and instead favored in-state wineries.

In its opinion, the federal appeals court sided with the oenophiles and the Indiana winery.

The court noted there is no question Tennessee intended to foster the growth of the wine-making business in the state when it passed the Grape and Wine Law. Lawmakers spelled it out in the law, writing the legislation was necessary to boost the state’s economy and provide a market for “native grapes.”

The court stopped short in its opinion of striking down the law immediately and instead is sending it back to Collier with some marching orders, including allowing the state to propose a fix and in-state wineries to join in the litigation.

Jonathan Adler of the Volokh Conspiracy gives a more detailed analysis of the opinion, Jelovsek v. Bredesen.

Here is a long list of other ILB entries on wine shipping.

[Updated 1-/30/-8] "6th Circuit Finds Tennessee Wine Law Unconstitutional, Sends Back for Remedy" from the National Law Journal - access here.

Posted by Marcia Oddi on Saturday, October 25, 2008
Posted to Courts in general

Ind. Decisions - Latest stories on Indiana appellate courts' rulings on early voting case

The action by the Supreme Court yesterday in denying a direct appeal, and the Court of Appeals' subsequent decision to allow an expedited hearing are the subject of several news reports today.

There are, interestingly, two different versions of the AP's Ken Kusmer's report - this one direct from the AP, and this one in the Louisville Courier Journal. Read them both.

Here are the NWI Times and Gary P-T versions.

Posted by Marcia Oddi on Saturday, October 25, 2008
Posted to Indiana Decisions

Ind. Courts - Vanderburgh judicial candidates evaluated by peers

Libby Keeling of the Evansville Courier & Press reports today in a story that begins:

The three candidates for election Nov. 4 to the office of Vanderburgh Superior Court judge were evaluated by their peers this week.

A total of 382 ballots were mailed to members of the Evansville Bar Association eliciting anonymous evaluations of each candidate. Bar officials say 186 ballots were returned.

Kathryn Sullivan, vice chairman of the Bench and Bar Committee, said the poll is done as a public service for Vanderburgh County voters.

"The taking of this survey and the subsequent releasing of the results does not constitute an endorsement by the Evansville Bar Association of any candidate for judicial office," she said.

The only contested judge's race this election is for the Superior Court seat of retiring Judge Scott R. Bowers. The nonpartisan candidates are Circuit Court Magistrate David D. Kiely, Superior Court Magistrate Jill R. Marcrum and Deputy Prosecuting Attorney Michael J. Perry.

Posted by Marcia Oddi on Saturday, October 25, 2008
Posted to Indiana Courts

Ind. Courts - Constitutionality of federal sex offender law argued before 7th Circuit Friday

Andy Grimm reports today in the Gary Post-Tribune:

A Michigan City man who is challenging the constitutionality of the federal sex offender registry brought his case to the 7th Circuit Court in Chicago on Friday.

The case is the first challenge to the federal sex offender registry in the 7th Circuit, which sets case law for most of the Midwest.

Marcus Dixon was convicted in the Northern District's South Bend court in 2007 for failing to register with state authorities after he was released from a South Carolina prison, removed his electronic ankle bracelet and moved to Indiana in 2006.

Dixon's attorney, Bryan Truitt, argued the U.S. Constitution does not give the federal government jurisidiction over the crime, and that stiffer sentences imposed by federal law in 2007, which elevated the crime to a felony, should not apply to Dixon because he crossed state lines before the law changed.

"This is an issue that is purely for the states to decided, and all states have had laws on the books addressing this for 20 years," Truitt said.

Judges Frank H. Easterbrook, Richard Posner and Ilana Rovner mostly questioned Truitt about issues related to the changes to the mandatory federal sentences, Truitt said.

Here are earlier ILB entries, this one from 1/6/08 includes the district court opinion; and this one from 11/23/07.

Posted by Marcia Oddi on Saturday, October 25, 2008
Posted to Indiana Courts

Friday, October 24, 2008

Ind. Decisions - Curley Plaintiffs petition for immediate consideration, denied by Supreme Court, granted by COA

Despite the quote in the ILB entry from earlier this afternoon:

It’s unlikely the COA will agree to expedite, now that the Supreme Court has declined to intervene.
the Court of Appeals has just, pursuant to Appellants; motion, ordered an expedited briefing schedule - here is the Order - and set Oral Argment for Thursday, Oct. 30th at 1:30 PM in the Supreme Court Courtroom (which means it will be videocast).

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Ind. App.Ct. Decisions

Ind. Go'vt. - May the state privatize/lease its lottery and still comply with federal law? [Updated]

The Governor's Office issued a press release today about a 13-page opinion issued Oct. 16th by the U.S. DOJ, Criminal Division, addressing the question of:

whether a lottery operating under such a long-term private management arrangement would qualify as a lottery “conducted by a State acting under the authority of State law” within the meaning of the federal lottery statutes.
The Governor's statement today concludes:
The Office of Legal Counsel in the U.S. Department of Justice issued the opinion on the question of whether a long-term lease of a state lottery to a private operator would conform to federal law that generally prohibits the promotion and advertising of lotteries in interstate commerce (federal law makes an exception for lotteries “conducted” by a state). The OLC opinion addresses whether leases to private operators would fall within the exception and thus be permissible. It concludes that states may contract with private management firms to operate their lotteries, but that the state must maintain control over significant business decisions made by the lottery. In addition, the opinion says that the management firm may not receive more than “a de minimus interest in the profits and losses of the business”.

The opinion was issued because a number of states, including California, New Jersey, Illinois, Colorado, Florida, Michigan, Texas, New York, and Indiana, have proposed the long-term lease of their state lotteries in order to fund investments ranging from infrastructure to education.

Miore from the Governor's statement:
As one of a number of states considering the possible lease of their lotteries to private operators, we were surprised by the recent Office of Legal Counsel decision. The best legal advice available to us had suggested that the OLC would not interpret federal lottery statutes as preventing the long-term lease of state lotteries.

Although the OLC opinion is not binding, rather than challenging it in federal court it seems wiser to look to other options we’ve been exploring to fund the Hoosier College Promise proposal. The goal of the plan is to guarantee a college scholarship to every low and middle income Hoosier high school graduate. A lottery lease would have been one means to that end, but there can be other financing options available and we will shift our attention to them.

Governor Daniels had proposed the Hoosier College Promise program, a plan that would provide $6,000 over two years to recent Indiana high school graduates to pursue postsecondary education in the state. The governor had suggested several possible methods for funding the scholarship program, including leasing the Hoosier Lottery to a private operator, or issuing bonds backed by future growth in lottery profits.

[Updated 8:30 PM]
"US Justice Dept tells states not to privatize lotteries" is the headline to a Reuters story, here.

[Update 10/25/08] Here are today's stories from the LCJ and the Indy Star.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Government

Ind. Decisions - More on: Curley Plaintiffs petition for immediate consideration by Supreme Court

Updating this ILB entry from yesterday, the ILB has just received this information from a reliable source:

The Indiana Supreme Court just agreed, by a vote of 3-2, to decline jurisdiction over the Republicans’ appeal. This means their only recourse is to pursue an appeal through the normal means, that is, to the Indiana Court of Appeals. It’s unlikely the COA will agree to expedite, now that the Supreme Court has declined to intervene.
Check back for more.

[More] Here is the Supreme Court's Order.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Daniels appoints St. Joseph Superior Court judge"

Just released from the Governor's office:

Governor Mitch Daniels today announced the appointment of Margot Fisher Reagan of South Bend as St. Joseph Superior Court judge. She succeeds Judge William T. Means, who retired on September 30.

Reagan has been in private practice since 1989 and is a partner in the firm of Tuesley, Hall, Konopa, LLP. She previously served two years as a law clerk to Judge Allen Sharp in the U.S. District Court, Northern District of Indiana.

“We had five excellent candidates from which to choose, each with unique resumes, but I was so impressed with Margot’s integrity, courage and tenacity in addition to her broad civil law experience,” said Daniels. “I know she will bring great talent and energy to an already outstanding court in South Bend.”

Reagan formerly served on the Protective Services Board (PSB) of LOGAN Community Resources, Inc., in South Bend. The PSB serves as guardians of mentally disabled adults. She is also involved with the Hannah & Friends organization and is a member of the St. Joseph County Bar Association and the Indiana Trial Lawyers Association.

“I’m honored and humbled to have Governor Daniels’ confidence and am grateful for this opportunity to serve the citizens of St. Joseph County,” said Reagan. “I hope to continue Judge Means’ legacy of treating litigants and attorneys of the court with the utmost respect.”

Reagan earned her undergraduate degree from Saint Mary’s College and her law degree from the University of Notre Dame. She was among five candidates nominated for the position by the St. Joseph County Judicial Nominating Commission. The nominations of Elizabeth C. Hurley, Lee Korzan, Jeffrey Lane Sanford and State Senator Joseph C. Zakas were also submitted to the governor for consideration on September 15.

Judge Reagan will take the bench on or about November 10.

For background, see this ILB entry from Sept. 15th.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

Indiana Bureau of Motor Vehicles v. Ash, Inc. - This case involved a lease dispute between the BMV, and Ash, the owner of the real estate. The BMV raised the following issues: 1. Whether the trial court erred when it granted Ash’s motion for summary judgment. 2. Whether the trial court erred when it ordered BMV to pay interest on the judgment at the rate of eight percent (8%) per year. On cross-appeal, Ash raised the following issue: 1. Whether the trial court erred when it ruled that Ash was not entitled to future damages. "First, BMV asserts that the January 15, 2003 fax was not a binding contract because pursuant to Indiana Code section 4-13-2-14.2(a), all contracts with state agencies must be in writing. The January 15, 2003 fax, though, was in writing. Thus, the requirements of Indiana Code section 4- 13-2-14.2(a) were satisfied." The Court affirmed in part, reversed in part, and remanded.

In Tyris A. Brooks v. State of Indiana , an 8-page opinion, Judge Brown writes:

Tyris A. Brooks appeals his conviction for dealing in a narcotic drug as a class B felony. Brooks raises one issue, which we revise and restate as whether the trial court abused its discretion when it instructed the jury concerning accomplice liability. We affirm.
NFP civil opinions today (2):

Lee K. Ziegler v. Heidi S. (Ziegler) Hunt (NFP) - Child support: " The trial court acted within its discretion in finding that Husband was voluntarily underemployed."

Matthew A. McHugh, et al. v. Rebecca L. Lockard, Leslie L. Stuedemann, et al. (NFP) - " We address the following dispositive issue: whether the McHughs have waived their claims by failing to present a cogent argument on appeal. We dismiss."

NFP criminal opinions today (5):

Eric D. Johnson v. State of Indiana (NFP)

Danny Crossley v. State of Indiana (NFP)

Darren King v. State of Indiana (NFP)

Tony L. Richey v. State of Indiana (NFP)

Ron Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Ind. App.Ct. Decisions

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

In Interactive Intelligence v. Keycorp (SD Ind., Judge McKinney), a 10-page opinion, Judge Evans writes:

Interactive Intelligence, Inc. filed this action against KeyCorp, KeyBank, and Adam Ravens (a former employee of KeyBank), alleging various contractual and tort theories of liability arising out of foreign exchange (FX) currency transactions. The district court granted the defendants’ motions for summary judgment; Interactive appeals. * * *

One problem in this case, which is not adequately addressed by the parties, is what law applies to the claims. On the claims based on the supposed employment con- tract, KeyBank says the parties agree that Ohio law gov- erns; however, Interactive cites the law of Connecticut and New Jersey. KeyBank says that on all other claims Indiana law controls; however, while Interactive relies on Indiana law on the claims based on breach of a fiduciary duty and of oral contract, it says Ohio law applies to the negligence claims. Like much else in this case, what law should apply is unclear, but the deficiencies in the plaintiff’s case are clear under the laws of either Ohio or Indiana. We will proceed with our de novo review. Gillespie v. Equifax Info. Servs., L.L.C., 484 F.3d 938 (7th Cir. 2007). * * *

The supposed oral contract is too vague to be enforceable. See Pepsi-Cola Gen. Bottlers, Inc. v. Woods, 440 N.E.2d 696 (Ind. Ct. App. 1982). An agreement to work out more definite terms at some future time is not enforceable. Wolvos v. Meyer, 668 N.E.2d 671 (Ind. 1996). That is all that the evidence can possibly show in this case, and accord- ingly there is no enforceable oral contract.

For these reasons, we will affirm the judgment dismiss- ing Interactive’s claims against all defendants. There is no need, then, to consider the appeal relating to dismissal of requests for class action status.

The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Ind. (7th Cir.) Decisions

About this blog - ILB has agreed to act as a host for the RealMatch legal job network

The ILB has agreed to act as a host for the RealMatch job network -- providing access to Indiana legal jobs for both job seekers, and employers. You will shortly be able to access the network from the ILB and just look around, or submit your resume, or advertise an opening, all at no cost. And because RealMatch is nationwide, your access will extend to the national job market, should you so choose. Watch for this!

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to About the Indiana Law Blog

Ind. Decisions - Federal Judge Hamilton's ruling in a drug-labeling case featured in ABA story

A lengthy feature article in the newly available this morning November issue of the ABA Journal, written by Tery Carter, begins:

In July, a federal judge in the Southern District of Indiana did something unusual on a motion to reconsider a controversial drug-labeling case: He reconsidered it in depth.

In fact, in what some saw as a jaw-dropping decision, U.S. District Judge David F. Hamilton reversed himself.

Ten months earlier Judge Hamilton had summarily dismissed Tucker v. Smith­Kline Beecham Corp., a lawsuit brought by the sister of a Catholic priest who committed suicide 22 days after he began taking the antidepressant drug Paxil. The suit alleged that the drug’s labeling had failed to warn patients and physicians of an increased danger of suicide.

In its defense, Smith­Kline (now GlaxoSmith­Kline) argued that the drug’s labeling was approved by the Food and Drug Ad­minis­tration—and the company could have faced criminal charges had it changed the label­ing to reflect an increased risk of suicide.

The judge said this issue of federal pre-emption had weighed heavily in his earlier decision. The drug company’s need to follow FDA labeling regulations, he had previously believed, outweighed any liability under state laws. Fed­eral rules rule.

But in shifting direction, Judge Hamilton said he had “failed to appreciate” the gritty details of the actual drug labeling process: That when a drug company has reasonable evidence that its product presents a serious hazard, FDA rules allow it to make changes without prior approval.

From early 2006 through Hamilton’s unexpected reversal, drug and medical device companies had been on an unprecedented courthouse roll—even in the wake of well-documented controversies over prescription drugs like Vioxx and Celebrex. Armed with a little-noticed expression of FDA policy, the deep-pocketed defendants found courts—especially federal courts—receptive to the pre-emption of state liability statutes in virtually every corner of the country, including the U.S. Supreme Court.

Here is the 28-page 7/18/08 "Entry on plaintiff's motion to reconsider."

See also this "Drug (and Vaccine) Preemption Scorecard" from the Drug and Device Law blog.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Ind Fed D.Ct. Decisions

Law - "The Lawyers Who May Run America"

The November 2008 issue of the ABAJournal has two articles on the lawyers who may run America: if Obama is elected, and if McCain is elected.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to General Law Related

Ind. Courts - "The big-dollar race in Greene County politics has proven to be that for the seat of Superior Court Judge" [Updated]

That is the headline to this story in the Oct. 22nd edition of the Bloomfield Free Press:

BLOOMFIELD - The big-dollar race in Greene County politics has proven to be that for the seat of Superior Court Judge.

With a deadline to file financial disclosure statements by noon Friday, reports show that Republican candidate Dena Benham Martin has outspent her opponent, Democrat Jacob Fish by a margin of our-to-one.

Martin's statement shows that between January and the May Primary election, she has spent $23,337.12. Year-to-date, her campaign has coughed up $36,202.67.

Fish, on the other hand, spent $8,263.48 by the May Primary, and has spent $9,960.33 total.

[Updated 10/30/08] Anna Rochelle reported yesterday in the Greene County Daily World in a lengthy story that begins:
When Greene County voters go to the polls Tuesday, they will elect a new Greene Superior Court Judge.

They will be given a choice between two candidates on the ballot -- Dena Benham Martin and Jacob Fish.

After Superior Court Judge David J. Holt announced that he would retire at the end of his current term on the bench, four attorneys filed their candidacy before the primary last spring. When the votes were counted, Martin had won the right to represent the Republican Party in the General Election and Fish had won the spot on the Democrat Party ticket.

The winner of this race will succeed Holt and be seated on the Superior Court bench on Jan. 1, 2009 for a six-year term.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Courts

Environment - "How Green Is the High Court? Five cases put environmental laws to the test"

Marcia Coyle of The National Law Journal has a lengthy report today that begins:

Is the U.S. Supreme Court hostile to environmental regulation? Does it shy away from the tougher environmental questions of today? Or are its decisions a "mixed bag," giving comfort and angst to environmentalists and industry depending on the issue?

The justices this term have taken five environmental cases for decision thus far -- a significant number for a relatively small docket. With the exception of the already argued case involving Navy sonar and its impact on whales and other marine mammals, this environmental quintet is unlikely to arouse public passions.

But all five cases raise bread-and-butter environmental issues, some with potentially huge implications for the ability of environmentalists and the government to enforce the nation's major environmental laws and for the wherewithal of business and industry to survive and prosper under those laws.

Traditional antagonists in these high court cases, environmental and business groups do seem to agree on at least one thing: The five pending cases are likely to be especially revealing of the still-emerging Roberts Court in an area of increasing national and international concern.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Environment

Courts - "Two diet-drug lawyers permanently disbarred"

In 2007 the ILB had many entries relating to Kentucky's fen-phen case/scandal. Today Andrew Wolfson of the Louisville Courier Journal reports, in a lengthy story:

Lexington lawyers William Gallion and Shirley Cunningham Jr., who are charged with bilking clients out of tens of millions of dollars in Kentucky's fen-phen case, were permanently disbarred from practice yesterday by the Kentucky Supreme Court.

In a statement, Linda Gosnell, the Kentucky Bar Association's chief counsel, said the court confirmed "multiple violations of the rules of professional conduct that govern the practice of law."

"Never again will these two persons have the privilege of practicing law in the Commonwealth of Kentucky," Gosnell said.

The two men, who were temporarily suspended in August 2006, were accused of 22 violations of ethics rules, including receiving an excessive fee. They admitted eight violations, but not that one. * * *

Gallion and Cunningham asked the Supreme Court to accept their resignations under terms of permanent disbarment -- a step that keeps them from having to defend themselves in a disciplinary proceeding.

The Supreme Court found that:

The 440 fen-phen plaintiffs were never told the total settlement amount paid by the diet-drug maker, nor were they informed that it was their lawyers -- and not the company -- that determined the amount of money each was to be given.

Any plaintiff who complained about the settlement amount was coerced by the attorneys or their staff to take the amount offered under the guise that it was what the drug manufacturer, now known as Wyeth, specifically offered.

Plaintiffs were told they could go to jail if they discussed the terms of their individual settlement.

The plaintiffs were never told that Gallion, Cunningham and Mills entered into an agreement with Cincinnati attorney Stan Chesley and other lawyers to share fees from the case.

Gallion and Cunningham admitted in their motion to accept disbarment that they violated several rules, including by failing to tell their clients that they were taking more than the fees set out in their contracts.

The lawyers also admitted that they never told their clients that they were putting $20 million from the settlement into a charitable foundation, or that they paid themselves to manage the foundation.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Courts in general

Ind. Courts - More on "New Albany attorney sentenced to year in prison for sexual battery"

Updating this ILB entry from Sept. 26th, Harold J. Adams of the LCJ reports today:

A New Albany attorney must report to jail today to begin serving a one-year sentence for sexual battery against a 16-year-old girl. Meanwhile, authorities have taken the first step toward suspending Anthony Wallingford's license to practice law. * * *

On Tuesday the Indiana Supreme Court Disciplinary Commission filed a request with the state high court to suspend Wallingford's license to practice law, pending further proceedings to determine how long he should be prohibited from practicing.

Wallingford has 15 days from the filing to respond before the Supreme Court acts on the suspension request, which the commission said is typically granted. * * *

Donald Lundberg, executive secretary of the disciplinary commission, said the next step is for his organization to file a formal charge of misconduct against Wallingford. A hearing officer would be appointed to weigh arguments from both sides and recommend a final punishment to the Supreme Court.

Lundberg said he can't predict what recommendation would be made in this case but added that "if you look at cases that are sort of in this ballpark, one tends to see multiyear suspensions from practice of law."

Any suspension of more than six months "requires that the lawyer can be reinstated to practice only after they successfully petition for the reinstatement of their law license" after completing the suspension, Lundberg said.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Courts

Ind. Law - "Two offenses, but one candidate stays, the other goes"

The ILB has had numerous stories of candidates found to be ineligible for run for office, or to hold office, because of past convictions. Here are some of them. Today Joy Leiker of the Muncie Star-Press reports:

WINCHESTER -- A week after one candidate's criminal past disqualified him from the November election, it appears a technicality allows another man to remain on the ballot.

Eleven years ago a now-retired Randolph County judge opted to sentence Tom Binkley to a misdemeanor of operating a vehicle while intoxicated. Even though Binkley had agreed to plead guilty to a Class D felony, the judge's decision to charge Binkley with a misdemeanor effectively kept the more serious felony charge off Binkley's record.

Binkley said his past criminal record -- made up of drunken driving convictions in August 1995, April 1997 and February 2003 -- never has been an issue in past elections until The Star Press looked at his record this week. * * *

According to state Bureau of Motor Vehicle records, Binkley was declared a habitual traffic violator after his third drunken driving conviction, leading to a suspension of his driving privileges through December 2013.

While Binkley's name remains on the ballot, another candidate with a criminal past was last week ruled ineligible.

A week ago the Randolph County Election Board voted to disqualify candidate Jim Byrd, who had filed as an independent for one of the at-large positions on the Randolph County Council.

In 2003, Byrd was convicted of felony theft, but after he paid restitution and probation, the court agreed in 2005 to reduce his D felony charge to a Class A misdemeanor. That same year a new state law specifically prohibited those with D felony charges that were lessened to A misdemeanors from seeking elected office.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Law

Ind. Courts - "Judge sues Hammond City Council"

Susan Brown reports today in the NWI Times:

HAMMOND | City Court Judge Jeffrey Harkin has sued the Hammond City Council for slashing the court's 2009 budget.

In representing Harkin in the complaint filed Wednesday in Lake County Circuit Court, attorney David Weigle contends Harkin has complete independent power and authority to determine the court's budget.

The lawsuit seeks a preliminary and permanent injunction against the City Council's action and, in a not uncommon but still unusual action by a sitting judge, asks the court to mandate the council to appropriate sufficient funds.

In the lawsuit, Weigle argues Harkin's court is the busiest and most efficient in the state, having a cost-per-case of about $33 and employing only two full-time public defenders in contrast to the average number of six employed by other city courts and county division courts in Lake County.

A revenue-generating entity, the City Court operated on a budget of $853,459 this year, but is expected to bring in revenues in excess of $850,000 to be paid into the city's general fund, according to the complaint. The court also generated more than $340,000 for the county and more than $600,000 for the state.

Despite a 28.3 percent increase in caseload, the lawsuit contends Harkin turned in a 2009 budget request that was 5 percent less than the current year's. Instead, Harkin is reported to have learned only hours before the City Council's passage of the budget that the court's budget was to be slashed by more than 10 percent.

Budget documents show the cutbacks included the loss of four positions, including the two public defenders who had earned a combined salary of $47,132. The public defender services were replaced by $30,000 in contractual services. The City Council also is cited for its alleged "capricious elimination" of one of the court's referees and two deputy clerks from the office of City Clerk Robert Golec, an officer of the court.

Three days following passage of the city budget, the lawsuit contends Harkin requested a meeting with the City Council on the issue, but was refused.

"The secretive action of the council in formulating the court's budget without any consultation with Harkin, and in total absence of analysis of the court's operation and budget requirements, was arbitrary and capricious, was plainly beyond the power of the council and contrary to law," Weigle argues in the lawsuit.

The court is asked to order the City Council to fully fund Harkin's budget as requested, reinstate the deputy clerks and cover the court's legal expenses.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Courts

Ind. Courts - Still more on "Terre Haute Attorney Arrested"

Updating this ILB entry from Nov. 16, 2007, Howard Greninger of the Terre Haute Tribune-Star reports today :

TERRE HAUTE — William W. Earls, while serving as a Vigo County deputy prosecutor in 2007, drank during jury deliberations and months later was involved in a drunken driving accident, incidents cited this month as part of disciplinary action by the Indiana Supreme Court. The action allows Earls to continue to practice law during a period of probation. * * *

The high court ruled that Earls violated the Indiana Professional Conduct Rules prohibiting misconduct by “committing a criminal act that reflects adversely on the lawyers’ honesty, trustworthiness, or fitness as a lawyer in other aspects,” and, “engaging in conduct prejudicial to the administration of justice.”

The court ruled Earls will receive a 180-day suspension, “all of which will be conditionally stayed subject to successful completion of a 24-month probation commencing on completion of his criminal probation on or about Nov. 13, 2008.”

Earls is to execute a monitoring agreement with the Judges and Lawyers Assistance Program and “shall have no violations of [that agreement], criminal arrests or violations of the Rules of Professional Conduct during his probation.”

Here is a copy of the Oct. 10th order.

Posted by Marcia Oddi on Friday, October 24, 2008
Posted to Indiana Courts

Thursday, October 23, 2008

Ind. Courts - "E.C. developer claims feds took a pass on Second Century" [Updated]

Today the Supreme Court heard oral arguments in two different cases, City of East Chicago v. East Chicago Second Century, and Steve Carter v. East Chicago Second Century (see more info about the cases here).

Patrick Guinane of the NWI Times has a story this afternoon on the argument in the latter case. Some quotes from the story:

INDIANAPOLIS | East Chicago Second Century, a politically connected developer embroiled in a feud for control of local casino subsidies, was investigated but not charged by federal prosecutors, a lawyer for the firm said Thursday.

Attorney Maggie Smith divulged that information to the Indiana Supreme Court in an effort to blunt the state attorney general's attempt to force the development firm to open its books. If federal authorities haven’t filed criminal charges, she reasoned, Second Century must not be doing anything wrong. * * *

The state Supreme Court heard arguments Thursday in Indiana Attorney General Steve Carter’s attempt to force a public accounting of Second Century finances. The for-profit firm has refused to disclose how it has spent millions in riverboat casino-funded economic development subsidies it has reaped through a 1994 deal brokered by Pastrick.

“All actions over the many years have failed to find how the $16 million was spent,” Carter said after Thursday’s hearing. “The Indiana Supreme Court is the last hope the public will ever have of knowing where it went.”

[Updated 10/25/08] Christin Nance Lazerus reported 10/24/08 in the Post-Tribune:
A lawyer representing East Chicago Second Century Inc. during oral arguments Thursday in the Indiana Supreme Court said the U.S. Attorney's Office investigated the developer and decided not to file charges.

Second Century, which is a private, for-profit corporation that has received millions of the city's casino revenue, is being sued by Attorney General Steve Carter in an effort to open its books.

Second Century attorney Maggie Smith argued that if any of the allegations of misappropriated funds were true, federal prosecutors would have found something. Smith said Second Century was part of the probe that investigated corruption by former Mayor Robert Pastrick and his associates.

Chief Justice Randall T. Shepard questioned Smith about the motivation behind Second Century's unwillingness to open its books.

"It's a court of law to be sure, but you resist at every point the notion that the people of East Chicago should see where that money is being spent that was being generated for their benefit ... It almost has to be some reason other than, 'We're good guys,' " Shepard said. "You make everybody wonder whether in a gaming world where everyone is very concerned about corruption, whether that isn't the thing that's being closeted by your refusal to let anybody examine where the money went."

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Curley Plaintiffs petition for immediate consideration by Supreme Court [Updated]

Here is the Verified Motion to Acknowledge Jursidiction and Establish Expedited Briefing Schedule in the case of Curley v. Lake County Election Board, filed late this afternoon with the Supreme Court:

Plaintiffs and Appellants, John B. Curley, as Chairman of the Lake County, Indiana, Republican Central Committee, and as a registered voter ("Curley") and Jim B. Brown, as a member of the Lake County Board of Elections and Registration and as a registered voter ("Brown") (collectively "the Curley Plaintiffs"), by. counsel, pursuant to IND. APPELLATE RULES 4(A)(l)(b) and 56(A), respectfully request that this Court affirm its exclusive and mandatory direct appellate jurisdiction over this case, or alternatively, grant immediate transfer because this appeal raises a substantial question of law of great public importance and an emergency exists requiring a speedy determination. Additionally, the Curley Plaintiffs request an expedited briefing schedule and expedited consideration so that this absentee voting controvcrsy can be finally resolved before the general election on November 4, 2008. In support hereof, the Curley Plaintiffs state as follows * * *
Because the filing is a 38-page scanned document, and thus very large, I have separated out the 8-page Petition from the other 30-pages.

Here is the NWI Times' Bill Dolan's breaking news report from earlier this afternoon. It begins:

INDIANAPOLIS | The Lake County Republican party is back before the Indiana Supreme Court in its fight to close early voting centers in Gary, Hammond and East Chicago.

Tim Sendak, one of the party's attorneys, said Republicans filed the appeal late Thursday morning in Lake County and in Indianapolis, with a plea for an emergency hearing on a motion to close in-person voting in the county clerk's branch offices in counties three Democratic strongholds. Sendak said no hearing date had been set as of 1:30 p.m. Thursday.

Note the file stamp appears to read 3:50 PM, Oct. 23.

[Updated 10/24/08] Stories today here in the Gary Post-Tribune, and here via the AP.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Indiana Decisions

Ind. Law - "Accomplished White Collar Crime Attorneys Join Barnes & Thornburg LLP’s Washington, D.C., Office"

From a lengthy press release dated Oct. 23:

Solomon Wisenberg and Adrienne Urrutia Wisenberg, two nationally recognized white collar crime criminal defense attorneys, have joined Barnes & Thornburg LLP’s Washington, D.C., office and the firm’s White Collar Crime Defense Group.

The Wisenbergs previously were partners of Wisenberg & Wisenberg, PLLC. Solomon Wisenberg, who joins as a partner, has more than two decades of experience as lead counsel in complex white collar crime investigations and jury trials. He served as deputy independent counsel in the Office of Independent Counsel during the Whitewater-Monica Lewinsky matter and was an assistant U.S. attorney for the U.S. Department of Justice. His current national practice involves representing businesses and individuals exposed to federal criminal inquiries or charged with federal crimes.

Adrienne Wisenberg, who will be of counsel, has represented clients in nearly 250 direct appeals and habeas corpus proceedings during her 19 years as a criminal defense attorney. Her years of experience with the federal appellate and district courts, which has resulted in nearly 50 oral arguments and 60 published decisions, places her among the country’s more experienced criminal appellate advocates.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Indiana Law

Ind. Decisions - Prior order granting transfer vacated in Hollars case

Updating this ILB entry from Oct. 16, the Supreme Court today has issued an Order Vacating Prior Order Granting Transfer in the case of State v. Shannon Hollars. From the Order, signed by CJ Shepard, with Dickson, Boehm, and Rucker, JJ., concurring and voting to deny transfer, and Sullivan, J., dissenting, and voting to grant transfer:

By order dated August 28, 2008, the Court granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals to this Court. After further review, including oral argument, a majority of the Court has determined that transfer was improvidently granted.

Accordingly, the order granting transfer is VACATED. The Court of Appeals opinion reported as State v. Hollars, 887 N.E.2d 197 (Ind. Ct. App. 2008), is no longer vacated under Appellate Rule 58(A) and is REINSTATED as Court of Appeals precedent.

The transfer petition filed by Appellee Hollars is DENIED.

Pursuant to Appellate Rule 58(B), this appeal is at an end.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Anne L. Hickman v. State of Indiana , a 12-page opinion, the issue was whether the Department of Correction had a legal obligation to pay Hickman for unused vacation days upon her termination from employment under contract law and the Indiana Wage Claim Statute. Judge Brown concludes "no," citing Mitchell v. Universal Solution (COA, 2006) and concluding:

The same reasoning applies in the present case, and we hold that, because Hickman accrued vacation hours under other provisions of the Indiana Administrative Code, she is estopped from arguing that 31 Ind. Admin. Code 1-10-3(a) is unenforceable.
In Paul L. Mishler v. State of Indiana, a 17-page opinion, Chief Judge Baker wrties:
Appellant-defendant Paul L. Mishler appeals his conviction for two counts of Child Molesting, a class A felony, claiming that the trial court erred in admitting the child victim’s pretrial statements and videotaped interview into evidence at trial. Mishler also contends that the evidence was insufficient to support the convictions and that the fifty-year aggregate sentence was inappropriate in light of the nature of the offenses and his character. We conclude that the victim’s statements and interview were properly admitted into evidence and find that the evidence was sufficient to support the convictions. However, we also conclude that Mishler’s sentence is inappropriate. Therefore, we affirm in part, reverse in part, and remand with instructions to revise Mishler’s sentence to an aggregate thirty-eight-year term of incarceration.
In LHT Capital, LLC v. Indiana Horse Racing Commission, et al, a 9-page opinion on rehearing, Judge Brown writes:
LHT Capital, LLC (“LHT”) petitions for rehearing of a published opinion in which we affirmed the trial court’s grant of a motion to dismiss for lack of subject matter jurisdiction. LHT Capital v. Ind. Horse Racing Comm., 891 N.E.2d 646 (Ind. Ct. App. 2008). We held that LHT had failed to exhaust its administrative remedies by failing to raise the constitutionality and legality of 71 Ind. Admin. Code § 11-1-13(d) (“Emergency Rule”) before the Commission and that LHT’s failure to exhaust its administrative remedies was not excused based upon futility or the fact that LHT was arguing facial invalidity and unconstitutionality.

In its petition for rehearing, LHT does not appear to challenge the holding that it failed to exhaust its administrative remedies. Rather, LHT argues that the reasoning in the opinion conflicts with Indiana Supreme Court precedent regarding the exceptions to the exhaustion of administrative remedies requirement. LHT’s arguments are incorrect.

NFP civil opinions today (6):

Bruce Herdt, et al v. City of Jeffersonville, Indiana, et al (NFP) - "As the Remonstrators’ arguments are either reassertions of their earlier positions or are based on a misunderstanding of our opinion, the petition for rehearing is denied. "

In the Matter of the Adoption of D.J.E. and M.N.E. v. David and Mary Speer (NFP) - "Espinoza alleges that the trial court erred in finding that her consent to the adoption was unnecessary under Indiana Code section 31-19-9-8 because she had abandoned the twins and had failed to support them. Finding no error, we affirm the judgment of the trial court. "

David Bradley and Cynthia Sue Drawbaugh v. The Methodist Hospital, Inc. and Dr. Paul J. Stanish (NFP) - " David Drawbaugh and Cynthia Drawbaugh appeal the trial court’s denial of their motion to correct error and / or their motion to set aside dismissal following the trial court’s order dismissing their complaint for medical malpractice against The Methodist Hospital, Inc. (the “Hospital”), Dr. Paul Stanish, and Jim Atterholt." Affirmed.

Shane Beal, et al. v. Edwin Blinn, Jr. (NFP) - " In this interlocutory appeal, Shane Beal appeals the trial court’s denial of his motion to dismiss a complaint filed by Edwin Blinn, Jr. Beal raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying his motion to dismiss. We affirm."

In Re: Protective Order of Donald L. Campbell v. D.S. (NFP) - "Appellant-respondent Donald L. Campbell appeals the trial court’s issuance of a protective order against him. Specifically, Campbell argues that the trial court erred in granting the protective order in favor of appellee-petitioner, Charles Scott—the seventeen- year-old victim’s father—because the victim did not testify at the hearing. Campbell also argues that the trial court erred in considering the allegations against him that were contained in a police report that was not admitted into evidence and that the evidence was insufficient to support the trial court’s determination that Campbell had stalked or harassed the victim. Finally, Campbell argues that even if the protective order was validly issued, the trial court abused its discretion in extending the protective order beyond two years from the issuance of the original order. Finding no error, we affirm the judgment of the trial court. "

John Anthony Malan v. Melissa Malan (NFP) - " Malan has failed to advance his arguments with cogent reasoning or citations to relevant authority and the record. We find the argument section of his brief incoherent, and addressing his claims on the merits would require us to make and advance his arguments for him. Accordingly, we are compelled to dismiss Malan’s appeal. "

NFP criminal opinions today (7):

Marcus J. Perry v. State of Indiana (NFP)

Zachariah James v. State of Indiana (NFP)

D'Andre Griffin v. State of Indiana (NFP)

Michael Haley v. State of Indiana (NFP)

Johan Doeden v. State of Indiana (NFP)

Ronald Eugene Batenich v. State of Indiana (NFP)

Nelson J. Marks v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Ind. App.Ct. Decisions

Courts - Two 7th Circuit judges named in speculation for Supreme Court seats

Joan Biskupic of USA TODAY has a long and interesting story today about the potential legacies the two opposing tickets for President could create by their appointments to the Supreme Court. The story begins:

WASHINGTON — One candidate taught constitutional law and tapped a former Senate Judiciary Committee chairman as his running mate. The other once helped ease tensions in the Senate over judicial nominations, and has teamed up with a woman whose passionate opposition to abortion has energized conservative Republicans.

The differing experiences between the candidates are an intriguing backdrop to questions about how they would handle lifetime appointments to the Supreme Court, which is split on social policy issues ranging from reproductive rights to the scope of executive power.

Equally interesting is the sidebar, that lists "a few key figures in the law who, because of their backgrounds and ages, could be in the mix:" The 6 names for McCain include Deborah Cook, 56, Akron-based judge on the U.S. Court of Appeals for the 6th Circuit, and (Indiana native) Maureen Mahoney, 54, Washington lawyer with an active Supreme Court practice.

The third woman on the list is Diane Sykes, 51, Milwaukee-based judge on the U.S. Court of Appeals for the 7th Circuit. This matches up against the proposed Obama list, which also has three women, including Diane Wood, 58, Chicago-based judge on the U.S. Court of Appeals for the 7th Circuit.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Courts in general

Ind. Courts - More on "Attorney Crabtree charged with embezzling $1 million"

Updating this ILB entry from yesterday, Bill Dolan reports today under the headline: "State seeks to suspend attorney's license." Some quotes:

HAMMOND | A Schererville attorney is facing federal fraud charges and suspension from his law practice.

William G. Crabtree III has pleaded not guilty to allegations he misappropriated money he was handling for two clients between September 2007 and August 2008.

His trial is tentatively scheduled to begin Jan. 5 in U.S. District Court, Hammond.

Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission, said Wednesday that Crabtree has until next month to respond to an emergency petition to suspend his law license as a result of the embezzlement allegations.

The disciplinary commission alleges the family of the late Joseph J. Wasko Jr. gave Crabtree $394,566 to pay federal and state taxes Wasko's estate owed. It alleges Crabtree kept that money and didn't pay the taxes.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Indiana Courts

Courts - "Negative ad rolled out in Michigan Supreme Court race"

This is not about Indiana, but Michigan - an AP story by David Eggert, published today in the South Bend Tribune, begins:

LANSING — The Michigan Supreme Court race was jolted out of a peaceful slumber when Democrats rolled out a TV ad that accuses Chief Justice Clifford Taylor of nodding off during oral arguments.

The ad being aired statewide two weeks before the Nov. 4 election says the veteran Republican justice "needs a wake-up call."

Taylor's campaign and Republicans on Tuesday denounced the allegation as untrue and asked stations to stop running the ad.

Unlike Indiana, videos of Michigan's oral arguments are apparently not available online.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Courts in general

Ind. Decisions - Still more on: Decision in the Lake County early voting case

Updating this entry from yesterday, updated here, there are additional stories today. John Byrne of the Gary Post-Tribune reports:

HAMMOND -- Early voting will continue in Gary, Hammond and East Chicago, but the hotly debated issue now is headed for the state Supreme Court.

Ruling in favor of the early voting sites Wednesday, Lake Superior Court Judge Diane Kavadias Schneider said harm to union members, the NAACP and others who've argued in favor of the remote sites "outweighs the harm to the (Republican) plaintiffs."

The judge said inadequate public transportation in Lake County makes it "difficult if not impossible" for people to get to Crown Point, where early voting is offered at the county government center.

Timothy Sendak, attorney for Lake County Republican Chairman John Curley, said the plaintiffs will appeal Schneider's ruling today, straight to the Indiana Supreme Court.

"This is a matter of great public importance," Sendak said, "and it needs to be settled quickly."

The issue has become a legal war of attrition in recent weeks, as Democrats and Republicans fight for Indiana, a surprising battleground state in the upcoming election. * * *

Some 1,956 votes were cast at the three disputed sites by the end of business Tuesday -- 962 in Gary, 511 in East Chicago and 483 in Hammond.

Republican attorneys have suggested those votes might be in jeopardy because of the questionable legality of the polling sites.

But in her decision published Wednesday, Schneider ruled that all early votes cast so far are valid, except where there is evidence of vote fraud.

She also said because early voting is confined to the Clerk's Office locations in the three cities, it was legal for the Democratic majority on the Lake County Election Board to enact the plan over the objections of Republican members.

But Sendak disagreed. He said the election board violated the law by acting without a unanimous vote.

"The laws are to be made by an elected legislature, not by appointees and others who were not elected," Sendak said.

Schneider said she lacks jurisdiction to order early voting centers be opened in other parts of Lake County, but said she would do so if she could.

The judge said Republicans should have argued for remote voting in GOP strongholds when the election board was considering the matter.

The Indianapolis Star today carries an AP story by Tom Coyne. A quote:
Kavadias Schneider acknowledged that "regrettably, Lake County has had a history of public corruption and voter fraud." But she said several safeguards are in place, including a state law requiring voters to present photo identification, and access to registration checks through a state voter database.

The judge noted that travel to Crown Point from Gary, Hammond and East Chicago is impractical and challenged the plaintiffs and their attorneys to go to certain intersections in each city and attempt to travel to Crown Point by public transportation.

"It is highly probable that they would find it difficult, if not impossible, to do so," wrote Kavadias Schneider, who was named by the Indiana Supreme Court to hear the case.

ABC News had a report last evening; access it here.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Newcomers vie for Adams Superior Court bench"

Becky Manley reports today in the Fort Wayne Journal Gazette on the race for 26th District Superior Court judge in a story that begins:

Republican Patrick R. Miller and Democrat Thomas Wade Sheets are seeking the judge’s seat. The judge serves a term of six years and earns $125,647 a year.

Posted by Marcia Oddi on Thursday, October 23, 2008
Posted to Indiana Courts

Wednesday, October 22, 2008

Ind. Law - "Attorney found dead in field; Marshall coroner rules death suicide" [Updated]

Jeff Parrott of the South Bend Tribune has the report, that begins:

A police search for a missing Bremen attorney ended Monday with the discovery of his body in a field southwest of town.

After an autopsy Tuesday, Marshall County Coroner John Grolich determined that 70-year-old Ronald Sowers committed suicide with a single gunshot to the chest.

Sowers had been reported missing Sunday. He was last seen leaving his Plymouth home about 8:30 a.m. Sunday and was believed to be driving to his office in Bremen to do some work.

[Updated at 7:10 PM] A reader has just written: "I don't know if you noticed the connection, but the attorney who committed suicide was the appellants' attorney in the Clark and Biddle v. Simbeck case you just updated."

No, I certainly didn't make the connection - thanks so much to the alert reader. The case is immediately below - here is the link.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Indiana Law

Ind. Decisions - "Court of Appeals upholds road rage case damages"

Yesterday's Monday's Court of Appeals decision in the case of James G. Clark and Larry A. Biddle III v. Donald and Janet Simbeck (see ILB entry here) is the subject of a story this afternoon by Jeff Parrott of the South Bend Tribune. Some quotes:

The Indiana Court of Appeals has upheld most of the nearly $825,000 in damages awarded in a road rage lawsuit filed after two half brothers kicked a man 30 to 50 times in the head and face for confronting them about their driving.

Authorities say 26-year-old James G. Clark and 22-year-old Larry Biddle III had been drinking and closely following a vehicle driven by Donny Simbeck in Osceola in December 2003 just before the altercation.

Simbeck, who already was disabled by diabetes, followed the men to their home and got out of his car to discuss the driving. Clark and Biddle punched and kicked Simbeck in the head and face an estimated 30 to 50 times, and they also struck his wife Janet Simbeck, who had been traveling with her husband. * * *

The appeals court said the compensatory damages were not excessive, given the "pain, scarring, disfigurement and future problems and procedures caused by the attack."

But the three-judge appeals panel reversed the $86,000 in punitive damages, finding that Clark, who earns $13 an hour, and Biddle, who has no income, could not afford to pay them.

The three-judge panel cited a 2003 state Supreme Court ruling that stated, "An award that not only hurts but permanently cripples the defendant goes too far. A life of financial hopelessness may be an invitation to a life of crime."

Chief Judge John Baker dissented. He said Clark and Biddle's conduct that night "was so egregious, so malicious, and so brutal that the relatively nominal punitive damages award of $60,000 is warranted."

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Decision in the Lake County early voting case

Updating the ILB entry from early this afternoon, Bill Dolan of the NWI Times now has a report on the ruling that beings:

HAMMOND | Early voting satellite centers in Gary, Hammond and East Chicago will remain open following a Wednesday ruling in Lake Superior Court.

In her ruling, Judge Diane Kavadias-Schneider struck down Republican efforts to have the satellite voting locations deemed illegal and shut down.

The judge granted a petition by Democrats and the United Steelworkers union to keep the sites open on grounds the centers provide better access to early voting to minority communities, which don't have the time or transportation to reach the early voting center in Crown Point.

"If early voting was not offered in the cities of Gary, Hammond and East Chicago, the voters in those communities would be the only voters in Indiana who would not by able to vote at a courthouse located in their city of residence," she states in her ruling, which was handed down just before noon.

She denied a petition by the Lake County Republican party to close voting in those Democratic strongholds because of the potential for vote fraud.

Kavadias-Schneider stated in her ruling, "Regrettably, Lake County has had a history of public corruption and voter fraud," but not enough to warrant disenfranchising voters in the county's three biggest cities.

She ruled that in-person voting is protected by "the strictest voting requirement in all 50 states."

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In JDS Real Estate Svc., LLC and Jim Schenk, III v. The Bank of New York Trust Co. N.A. as Successor to JP Morgan Chase Bank N.A. as Trustee, et al. (NFP), a 7-page opinion, Judge Robb writes:

JDS Real Estate Service, LLC and Jim D. Schenk II, as intervening parties (“Intervenors”), appeal the trial court’s grant of a motion to set aside a sheriff’s sale filed by the The Bank of New York Trust Company N.A., as successor to JP Morgan Chase Bank N.A. (“Bank of NY”). Intervenors raise several issues that we consolidate as one: whether the trial court erred in granting the motion to set aside. Concluding that the Intervenors’ appeal is untimely, however, we dismiss. * * *

Intervenors’ motion to correct error was filed on July 10, 2007. Although the trial court held a status hearing and outlined a briefing schedule regarding Intervenors’ motion, the briefing schedule does not comply with the time limitations of Trial Rule 59 concerning motions to correct error, and nothing in the Trial Rules grants the trial court the discretion to alter those time limitations. The trial court also did not properly extend the time limitation for ruling on Intervenors’ motion to correct error: the trial court did not file an entry in writing extending its thirty days in which to rule by an additional thirty days; and even if it had done so, its ruling was entered more than sixty days after the motion was filed. In sum, Intervenors’ notice of appeal, filed more than seven months after the final judgment, was untimely. * * *

Conclusion. Intervenors’ notice of appeal was not timely filed following the entry of final judgment, and the appeal is therefore dismissed.

In Cash In A Flash, Inc. v. Anne Defreeuw (NFP), a 7-page opinion, Judge Najam writes:
Cash in a Flash, Inc. (“CIF”) appeals the trial court’s judgment awarding CIF $1,195, plus costs, in CIF’s action against Anne DeFreeuw for defrauding a financial institution. CIF raises two issues for our review, but we address only the following dispositive issue: whether CIF invited the purported errors from which it appeals. We affirm. * * *

The doctrine of invited error is grounded in estoppel. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). Under this doctrine, “‘a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.’” Id. (quoting Witte v. Mundy, 820 N.E.2d 128, 133-34 (Ind. 2005)). The record here indicates that CIF, in its complaint, alleged three counts against DeFreeuw, but that Count II (penalties for stopping payment) and Count III (breach of contract) were explicitly alleged as “Alternative Cause[s] of Action” to Count I (defrauding a financial institution). Appellant’s App. at 67-68. Further, at the small claims hearing, CIF’s counsel expressly informed the trial court that it had to “elect[] between the contract and fraud theor[ies]” and that the court could only award to CIF “damages [on] the lesser of the two” allegations. Id. at 34. That is what the court did. Hence, if that was error, CIF invited that error and “it cannot not take advantage of that error on appeal.” Wright, 828 N.E.2d at 907. Affirmed.

NFP criminal opinions today (2):

Wayman H. Lyons v. State of Indiana (NFP)

Preston James Frye v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Decision in the Lake County early voting case

Here is the 23-page opinion of Special Judge Diane Kavadias Schneider, in the Lake County early voting case, Curley v. Lake County Election Board, issued late this morning. The ruling concludes:

Intervenors' and Steelworkers Plaintiffs' Motion for Preliminary Injunction is GRANTED. The Lake County Board of Elections and Registration is hereby enjoined from terminating the operation of in person absentee voting currently being conducted in the offices of the Clerk of the Lake Circuit Court in the courthouse buildings in Gary, Hammond, and East Chicago and the offices of the Lake County Board of Elections and Registration in Crown Point..

IT IS FURTHER ORDERED that all ballots that have been already been cast at the early voting locations in Gary, Hammond, East Chicago, and Crown Point shall not be invalidated except for instances of voter fraud.

In other words, voting can continue. More from the opinion:
22. Indiana courts routinely interpret the election laws to ensure that the maximum number of legitimate votes will be cast and counted, despite technical violations. As the Indiana Supreme Court has recognized:
To disenfranchise [voters] because of a mere irregularity or a mistaken construction of the law by a party committee or election commissioner would defeat the very purpose of all election laws.
Lumm v. Simpson, 194N.E. 341, 342 (Ind. 1935).
23. Early voting is proceeding and votes are being cast in Lake County. To stop voting now on the basis of an alleged technical irregularity (that only a majority of the Board of Elections voted to establish the voting locations) would contravene the very purpose of the election laws and the longstanding judicial principle of construing election laws to broaden, not restrict. the franchise.

24. The Steelworkers Plaintiffs are likely to prevail on their claim that denying access to early voting in the cities of Gary, Hammond, and East Chicago would violate the Indiana Constitution.

25. Article 2, Section 1 of the Indiana Constitution proclaims that "[all] elections shall be free and equal."

26. In Morris v. Powell, 25 N.E. 221.225 (Ind. 1890), the Indiana Supreme Court announced a constitutional standard for the regulation of elections under Article 2, Section 1 that has stood for the past 11 8 years: all voting regulations must be reasonable, uniform and impartial.

27. The failure to provide the opportunity for in person absentee voting in the cities of Gary, Harnmond, and East Chicago violates these constitutional principles in several respects:

(A) It would be neither reasonable nor fair to deny accessible early voting to residents of Gary, Hammond, and East Chicago. If Gary and Hammond have no early voting locations, the); would be the largest cities in Indiana without early voting facilities.

(B) Travel to Crown Point is impractical or impossible for many residents of Gary, Hammond, and East Chicago. It is not reasonable or fair to allow voters residing in Crown Point or in close proximity thereto to cast an early ballot there, while at the same time requiring the many more voters in Gary, Hammond, and East Chicago to make an onerous and lengthy round-trip there to vote.

(C) There is no reasonable justification for a change in election procedures from the 2008 Primary Election and the 2008 General Election. To provide for fewer early voting locations during the 2008 General Election, in which many more Lake County residents will vote, than existed during the 2008 Primary Election is unreasonable and makes voting comparatively more burdensome and difficult for the large population of voters in Gary, Hammond, and East Chicago.

(D) Making early voting comparatively more burdensome and difficult for the large population of voters in Gary, Hammond, and East Chicago also cannot be deemed fair and equal. The Court in Brewer v. McClelland, 32 N.E. 299,300 (Ind. 1892) held "it cannot be demonstrated by any course of sound reasoning that an election held under a law which imposes upon one class of citizens burdens not borne by others is equal."

28. Providing early voting in the community of Crown Point, with an overwhelming white population, and denying accessible early voting to the majority of Lake County's Afiican- American and Latino residentsi would violate Section 2 of the federal Voting Rights Act.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Law - Recodifications, legislative histories, and tables

Following on the two-part article titled "Can you rely on the Indiana Code," I have a brief article slated for publication in the November issue of Res Gestae, titled "Recodifications, legislative histories, and tables, Part I." This subject was mentioned among the recommendations at the end of the article in last month's Res Gestae. Here is a link to an advance (draft) copy .

Here also are the links to Part I and Part II of the earlier article.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Indiana Law

Environment - More on: Who cleans up if a hog farm goes bankrupt?

Updating this ILB entry from April 11th, and this one from Dec. 1, 2007, Seth Slabaugh of the Muncie Star-Press reports today under the headline "Producer of pork pleads guilty to violating environmental laws." The story begins:

A former Delaware County pork producer pleaded guilty this week to a Class D felony charge of violating environmental laws.

Defense attorney Scott Shockley entered a guilty plea on behalf of Muncie Sow Unit LLC, after which the prosecution dismissed three felony environmental charges against the defunct limited liability corporation's owner, Jacobus John Tielen, 40, formerly of rural Eaton.

Shockley told Delaware Circuit Court 4 Judge John Feick that the three-year-old criminal case against Tielen concerned manure spills, problems retaining manure in a lagoon and other alleged violations.

The crime to which Muncie Sow Unit pleaded guilty was recklessly, knowingly or intentionally failing to maintain at least two feet of freeboard in its 12-million-gallon manure lagoon. Freeboard is the distance before the lagoon overflows.

"This operation is closed down," Shockley said.

Restitution to the state for investigative and cleanup costs was addressed in a separate, civil lawsuit brought by the attorney general's office on behalf of the Indiana Department of Environmental Management, Shockley said.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Environment

Ind. Decisions - "Court upholds decision on records in girl's death"

Yesterday's Court of Appeals decision in the case of In the Matter of T.B., and Charity B. v. Indiana Newspapers, Inc. (see ILB summary here) is the subject of a story by Jon Murray today in the Indianapolis Star. Some quotes:

The Indiana Court of Appeals on Tuesday upheld a Marion County judge's decision to open most juvenile records related to the abuse death of 3-year-old TaJanay Bailey.

But the court's disagreement with the release of other records in the Bailey case and another recent ruling mean future requests from the media and the public will face tighter scrutiny.

The Bailey ruling involved TaJanay's death in Indianapolis on Nov. 27, less than a month after the state Department of Child Services had sent her home for a trial reunification, along with her younger brother.

Her mother, Charity Bailey, and Bailey's live-in boyfriend, Lawrence Green, both then 20, faced murder and neglect charges in TaJanay's death.

In the following weeks, Marion County juvenile court Judge Marilyn Moores granted requests by The Indianapolis Star and WXIN (Channel 59) for about 2,000 pages of confidential court and DCS records involving TaJanay and her mother. Bailey's public defenders appealed the rulings but failed to halt the records' release.

Citing the public's interest, the Court of Appeals affirmed Moores' decision to release the court and DCS files from two abuse or neglect cases involving TaJanay. Those made up the bulk of the records.

"We further agree with the juvenile court that The Star has a 'legitimate interest' in informing the public of the facts surrounding the death of (TaJanay)," says the ruling, written by Judge Terry A. Crone for the three-judge panel.

The appeals court reversed Moores' decision to release a transcript of the last juvenile court hearing before TaJanay's death and court records from Charity Bailey's two juvenile delinquency cases.

The ruling, which acknowledged that the records release couldn't be undone, was the second ruling this month to hold some juvenile records off-limits if they aren't directly connected with a child's death.

Another panel reversed a Vanderburgh County judge's decision to release records related to the DCS cases of two siblings of 3-year-old Kalab Lay, whose parents are accused of beating him to death in April.

The earlier decision was In the Matter of K.B. and B.L.; A.B.L. (mother) v. Department of Child Services - ILB summary here. Here is a list of ILB entries on the Kalab Lay case.

Here is a list of ILB entries on the TaJanay Bailey case.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Ex-Monroe County prosecutor assigned to DTF case"

Rick Yencer of the Muncie Star-Press reports today in a story that begins:

MUNCIE -- A special prosecutor will now decide whether Delaware County Prosecutor Mark McKinney and the Muncie-Delaware County Drug Task Force committed crimes in their handling of drug forfeiture cases.

Special Judge Michael Peyton of Henry County has named former Monroe County Prosecutor Barry Brown to investigate allegations concerning DTF seizures and spending.

The same issues were the subject of a review by Delaware Circuit Court 2 Judge Richard Dailey, who found that McKinney misled the court and committed fraud in his handling of forfeiture cases as DTF attorney. McKinney has denied those allegations.

Mayor Sharon McShurley had requested appointment of a special prosecutor, although local law enforcement officials insist there is no evidence of crime in the DTF spending practices.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Indiana Courts

Ind. Courts - "Voters clamor to cast ballots after 4 p.m. deadline"

A ruling in the "early voting" case is expected later today, but meanwhile Bill Dolan of the NWI Times reported last evening from one of the satellite sites in dispute:

GARY | Large numbers of voters lining the hallways of the Gary courthouse wishing to vote early in the general election raised protests Tuesday when election workers attempted to close their doors at 4 p.m.

Lauren Smith, a spokeswomen for the Indiana Democratic Party, blamed Republican officials were unfairly turning back voters.

Nicholas Gasparovic, assistant county elections board director and the board's ranking Republican, said, he was preparing to call police to quell the angry crowd, who he said were violating the normal rules of closing the polls.

The dispute was the latest controversy over early in-person voting, which Gasparovic said has been heavy in the Gary office Tuesday.

The GOP has been trying to curtail satellite voting centers outside of Crown Point, claiming they violate state election laws which requires bipartisan support. They claim multiple centers risk voter

Democrats claim state law allows early voting in county clerk's branch offices in Gary, Hammond and East Chicago and they provide equal access to early voting to minorities, many of whom have neither the time nor transportation to reach the Crown Point voting center.

A spokeswoman for the Indiana Supreme Court said Lake Superior Court Judge Diane Kavadias-Schneider hadn't issued a ruling late this afternoon, but may still do so today or early Wednesday.

Gasparovic said election officials have regularly been closing early voting centers at 4 p.m. and are following Election Day rules that persons must be standing within a 50-foot chute extending outside the polling place to be eligible to vote once the deadline passes.

Smith said Election Day rules shouldn't apply to early voting.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Indiana Courts

Ind. Courts - "Attorney Crabtree charged with embezzling $1 million"

Andy Grimm reports today in the Gary Post-Tribune:

HAMMOND -- A federal grand jury has charged Schererville attorney William Crabtree with embezzling nearly $1 million from his clients' accounts.

William Crabtree II faces two counts of mail fraud and one count of wire fraud for allegedly taking money from a client and, when caught, paying her back with money from other clients.

Crabtree entered a plea of not guilty in federal court Monday.

"This is all a misunderstanding," said Kevin Milner, Crabtree's attorney. "This was a financial transaction that is easily explained, and I'm confident when we lay out what happened, it will work itself out."

The indictment states that in 2005, Crabtree deposited into his own account a check for $275,000 he was supposed to apply to estate taxes on Janet Etchison's inheritance from her father. When she complained three years later, Crabtree paid her back -- with another client's money, the indictment says.

The state Supreme Court Disciplinary Committee last week filed a motion to have Crabtree's law license suspended while the case is pending -- a rare case of authorities acting against an attorney before the lawyer has been convicted, said Executive Secretary Donald Lundberg.

"(This case) is about as bad as it can get," Lundberg said Tuesday. "I've had maybe one other case that dealt with a little more than a million dollars mishandled in a similar way."

Lundberg filed more than 300 pages of evidence along with the motion, including piles of bank records that allegedly show the fraudulent transactions.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Indiana Courts

Ind. Courts - Evansville editorial endorses all 3 candidates for one Superior court judgeship

From today's editorial in the Evansville Courier & Press:

Three Evansville lawyers, each with experience in a specific area of law, are candidates in a nonpartisan election race for Superior Court judge. The winner will fill the seat being vacated on the seven-judge court by Judge Scott Bowers, who is retiring.

The candidates are Vanderburgh Circuit Court Magistrate David D. Kiely, 45; Vanderburgh Superior Court Magistrate Jill R. Marcrum, 47; and Vanderburgh Deputy Prosecuting Attorney Michael Perry, 46.

After interviewing all of the candidates and studying their records and their answers to questions, we have come to the conclusion that each of the three has strengths that commend each to this office. Kiely and Marcrum, as magistrates, have extensive experience on the bench, while Perry has experience in prosecuting criminal cases before the bench.

There is no weak choice in this race. * * *

We believe that each of these candidates has something positive to offer to Superior Court. Therefore, we have no endorsement, other than for all three.

Posted by Marcia Oddi on Wednesday, October 22, 2008
Posted to Indiana Courts

Tuesday, October 21, 2008

Law - Jenner & Block "shows 10 partners the door"

Lynne Marek of The National Law Journal has a story that begins:

CHICAGO — Jenner & Block, following in the footsteps of other firms in town, recently notified some partners that they should prepare to leave the firm, according to sources familiar with the layoffs.

The Chicago-based firm is asking about 10 partners, both equity and non-equity, to exit with the bulk of those affected currently working out of the firm's biggest office in Chicago, the sources said. No particular practice area is more affected than others. The departures equate to about 6 percent of Jenner's 155 equity partner headcount and 2 percent of the overall 490 lawyer headcount. The firm declined comment.

"In this economy, all well-managed law firms, including Jenner & Block, must assess operations, staffing and expenses on a continuing basis and Jenner & Block is making selected staffing changes to better align our expertise and services with the current and anticipated client needs, just as we have in the past few years," managing partner Susan Levy said in a statement issued by the firm. "In this economy, we have to be particularly vigilant and are taking a hard look at every area of expense."

Posted by Marcia Oddi on Tuesday, October 21, 2008
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In In the Matter of T.B., and Charity B. v. Indiana Newspapers, Inc., a 41-page opinion, Judge Crone writes:

In this appeal, Charity Bailey challenges several orders of the Marion Superior Court, Juvenile Division (“the juvenile court”), granting the release of various court and agency records to Indiana Newspapers, Inc., d/b/a The Indianapolis Star (“the Star”). The Star requested the release of these records following the death of Bailey’s three-year-old daughter, T.B., who was alleged to have been neglected and murdered by Bailey and her boyfriend, Lawrence Green.

In considering Bailey’s appeal, we address the following issues: (1) whether this Court has subject matter jurisdiction over Bailey’s appeal; (2) whether Bailey’s appeal should be dismissed as moot; (3) whether the juvenile court erred in releasing its records from a child-in-need-of-services (“CHINS”) proceeding involving Bailey and T.B. that was pending at the time of T.B.’s death in November 2007, pursuant to Indiana Code Section 31- 39-2-10; (4) whether the juvenile court erred in releasing a transcript of an August 2007 review hearing in that CHINS proceeding, pursuant to Indiana Code Section 31-32-6-2; (5) whether the juvenile court erred in releasing its records from a CHINS proceeding involving Bailey and T.B. that was closed in January 2006, pursuant to Indiana Code Section 31-39-2- 10; (6) whether the juvenile court erred in releasing its records from two juvenile delinquency proceedings involving Bailey, pursuant to Indiana Code Section 31-39-2-8; and (7) whether the juvenile court erred in releasing records from the Indiana Department of Child Services (“IDCS”) and the Marion County Department of Child Services (“MCDCS”) regarding T.B., pursuant to Indiana Code Section 31-33-18-1.5.

We resolve these issues as follows: (1) this Court does have subject matter jurisdiction over Bailey’s appeal; (2) although Bailey’s appeal is moot because the records at issue have already been released, we address its merits because it involves questions of great public interest that are likely to recur in a context that will continue to evade review; (3) the juvenile court did not err in releasing its records from the CHINS proceeding that was pending at the time of T.B.’s death pursuant to Indiana Code Section 31-39-2-10; (4) the juvenile court erred in releasing a transcript of the August 2007 review hearing pursuant to Indiana Code Section 31-32-6-2; (5) the juvenile court did not err in releasing its records from the CHINS proceeding that was closed in January 2006 pursuant to Indiana Code Section 31-39-2-10; (6) the juvenile court erred in releasing its records from Bailey’s juvenile delinquency proceedings pursuant to Indiana Code Section 31-39-2-8; and (7) the juvenile court did not err in releasing IDCS and MCDCS records regarding T.B. pursuant to Indiana Code Section 31-33-18-1.5. Therefore, we affirm in part and reverse in part.

In Michael Ricci v. State of Indiana - "Michael Ricci appeals his sentence following his guilty plea to two counts of causing death when operating a motor vehicle with an alcohol concentration equivalent (“ACE”) of 0.08 gram or more, as class C felonies. We affirm.

"Issues Ricci raises one issues, which we restate as whether his sentence is inappropriate in light of the nature of the offenses and his character. The State also raises one issue, which we restate as whether Ricci waived the right to appeal his sentence."

NFP civil opinions today (7):

Thomas L. Fine v. Robert G. Harp, et al (NFP) - Issues. "1. Whether the trial court abused its discretion in denying Fine’s motion or relief from judgment. 2. Whether the trial court erred in determining that certain real property was not a marital asset." Affirmed.

The Estate of Kar Binninger and Marleta Binninger v. Johnson County (NFP) - Issues. "I. Whether the trial court erred in denying the Plaintiffs’ motion for summary judgment; and II. Whether the trial court abused its discretion in denying the Plaintiffs’ motion for judgment on the evidence." Affirmed.

Joseph L. Betsch v. Jennifer J. Betsch (NFP) - " Joseph L. Betsch (“Father”) appeals a support modification order entered in favor of Jennifer J. Betsch (“Mother”). We affirm in part, reverse in part, and remand. "

Kenneth R. Pickett and Pick and Save, Inc. v. Craig S. Copper and Carson L. Cooper (NFP) - "Kenneth R. Pickett (“Kenneth”) and Pick & Save, Inc., an Indiana Corporation (collectively, “Pickett”) appeal the trial court’s judgment in favor of Craig S. Cooper (“Craig”) and Carson L. Cooper (“Carson”) (collectively, “Cooper”), which reformed a deed to certain land and compelled Pickett to convey a .08-acre tract of land to Cooper. Pickett raises the following restated issues: I. Whether the trial court erred in concluding that the transfer of land by Kenneth and Margaret L. Cooper (“Margaret”) in a quitclaim deed recorded on June 21, 2004 was a mutual mistake of fact and subject to the remedy of reformation; II. Whether the trial court erred in concluding that the conveyance was not a gift and therefore applied the incorrect standard of review; and III. Whether the trial court erred in concluding that it could apply the remedy of reformation to modify a deed to include land owned by a corporation that was not involved in the original conveyance. We affirm."

In the Matter of K.G., and Kevin G. v. Monroe County Dept. of Child Services (NFP) - "Kevin G. (“Kevin”) appeals the juvenile court’s dispositional order in the adjudication of his daughter, K.G., as a child in need of services. The following restated issues are presented for our review: I. Whether the juvenile court’s dispositional order is deficient in that it exceeds statutory authority and fails to include reasons to support the disposition; and II. Whether there was sufficient evidence to support the juvenile court’s judgment. We reverse."

Akhenaton El-Shabazz v. Alan Finnan (NFP) - "The substance of El-Shabazz’s argument is that the Howard Superior Court was biased and that its bias deprived him of his Due Process right to a fair trial. As this argument attacks the validity of his conviction, the cause should have been transferred to the Howard Superior Court. Id.; see also Mills v. State, 840 N.E.2d 354, 357 n.1 (Ind. Ct. App. 2006). Accordingly, we remand to the Sullivan Superior Court with instructions to transfer this matter to the Howard Superior Court. Reversed and remanded. "

Murray Franklin Jacks v. Marla D. Jacks n/k/a/ Marla D. Valenta (NFP) - "We again meet Marla D. Valenta (formerly Marla D. Jacks) (“Marla”) and Murray Franklin Jacks (“Frank”) in this, their second appeal of their ongoing post-dissolution issues. We express the hope that, 'This appeal is the latest stop on the torturous path to dispute resolution between these two parties.'”

NFP criminal opinions today (8):

Donald Lee Selleck v. State of Indiana (NFP)

Sanchez Williams v. State of Indiana (NFP)

Terry L. Brabson v. State of Indiana (NFP)

Antoine Williams v. State of Indiana (NFP)

Jeffrey G. Garrison v. State of Indiana (NFP)

Kirk Alan Brantley v. State of Indiana (NFP)

Stefan Scott v. State of Indiana (NFP)

Melvin Wallace v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 21, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two

Two Supreme Court decisions posted today, one of them was decided yesterday.

In Larry Walden V. State, a 3-2, 14-page opinion, Justice Sullivan writes:

Larry Walden and his fiancée, Molly Arthur, were in an auto accident in which Walden’s truck swerved off the road and ended upside-down in a ditch. Walden managed to crawl out of the truck, but Arthur later died from her injuries. A jury found Walden guilty of the crime of Causing Death When Operating a Motor Vehicle with a Schedule I or II Controlled Substance in Blood. After returning its verdict at the conclusion of the “guilt phase” of the trial, a “habitual offender phase” of the trial followed pursuant to procedures authorized by the Legislature for punishing repeat offenders. At its conclusion, the jury also found Walden to be a “habitual offender.” He was sentenced to 20 years in prison, plus a habitual offender sentence enhancement of 30 years.

Walden raised four issues on appeal: whether the State had proved a sufficient foundation for the reliability of the scientific principles used by two expert witnesses as a basis for their testimony; whether the State proved Walden’s previous convictions to the extent necessary to establish that he was a “habitual offender”; whether the trial court improperly rejected Walden’s proposed jury instruction concerning the jury’s authority not to find him to be a habitual offender; and whether Walden’s sentence was inappropriate in light of the nature of the offense and the character of the offender. The Court of Appeals affirmed the trial court in all respects. Walden v. State, No. 18A02-0605-CR-420, slip op. (Ind. Ct. App. May 10, 2007). Walden petitioned for, and we granted, transfer. Walden v. State, 878 N.E.2d 216 (Ind. 2007) (table). We now address Walden’s claim that the trial court improperly rejected his proposed jury instruction. In all other respects, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A). * * *

The judgment of the trial court is affirmed with respect to Walden’s proposed jury instruction No. 1. We summarily affirm the Court of Appeals as to other issues raised on appeal but not addressed in this opinion. App. R. 58(A).

Shepard, C.J., and Boehm, J., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs.

[Justice Rucker's 3-page dissent begins] The majority makes a distinction between “law and facts” jury instructions in the guilt and habitual offender phases of trial. Because I see little daylight in the wording of Indiana Code section 35-37-2-2(5) and the provisions of Article 1, Section 19, I respectfully dissent.

[Justice Dickson's 2-page dissent concludes] Because I believe that the defendant was entitled to have the jury meaningfully instructed regarding its right to find in favor of a criminal defendant despite substantial contrary evidence, a historic right of American juries and one additionally preserved in Section 19 of the Indiana Bill of Rights, I dissent from the majority's opinion.

In Norman R. Carlson, Jr., et al v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos; and John H. Sweeney, a 14-page, 5-0 opinion, Justice Rucker writes:
Arising in the context of a legal malpractice action, this case involves the reformation of trust provisions in two wills to comport with the testators’ intent to avoid adverse federal estate tax consequences. We hold the trusts were properly reformed to include ascertainable standards in accordance with the Internal Revenue Code. * * *

We affirm in part the judgment of the trial court. This cause is remanded for further proceedings.

Posted by Marcia Oddi on Tuesday, October 21, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Tax Court issues one yesterday

The tax Court issued one decision late yesterday.

In MBNA American Bank v. Ind. Dept. Revenue, a 9-page opinion, Judge Fisher writes:

The Court restates the issue as whether the Commerce Clause requires MBNA to have a physical presence in Indiana in order to be subject to the FIT. * * *

[T]his Court finds that the Supreme Court has not extended the physical presence requirement
beyond the realm of sales and use taxes. Thus, Bellas Hess and Quill do not control the outcome of this case. Accordingly, the Supreme Court has left the door open for this Court to determine, as a matter of first impression, whether an economic presence can also satisfy the substantial nexus requirement for purposes of the FIT. * * *

The stipulated facts in this case indicate that, during the years at issue, MBNA had an economic presence in Indiana. MBNA regularly solicited business from Indiana customers. (Stip. Facts ¶¶ 7-10.) MBNA’s Indiana customers exceeded a “de minimis” number. (Stip. Facts ¶ 17.) Furthermore, MBNA regularly received interest and fees from those customers. (Stip. Facts ¶ 19 (footnote added).) Finally, the Court notes that MBNA’s confidential FIT returns reported significant gross receipts attributable to its Indiana customers. Thus, during the years at issue, MBNA had a substantial nexus with Indiana for purposes of the FIT.

CONCLUSION. The Commerce Clause does not require MBNA to have a physical presence in Indiana to be subject to the FIT – its economic presence is enough. The Department’s motion for summary judgment is therefore GRANTED.

Posted by Marcia Oddi on Tuesday, October 21, 2008
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Still more on: Hearing set in early voting case

Updating this ILB entry from late yesterday, both NW Indiana newspapers today report that they expect a ruling shortly, perhaps today.

John Byrne of the Gary Post-Tribune writes:

HAMMOND -- Lake County's early voting controversy went on the road Monday.

Lake Superior Court Judge Diane Kavadias Schneider visited in-person absentee voting locations in Hammond, Gary and East Chicago as part of the latest hearing on whether to let balloting at the sites continue.

Schneider said she might rule today, though she told attorneys in the case she fully expects the losing side to appeal to the state Court of Appeals. * * *

Joined by a phalanx of attorneys representing the Republican Party, the Democratic-controlled Lake County Election Board and a series of intervenors -- including various labor unions and the NAACP -- Schneider quietly visited the county offices where the voting has been taking place since Oct. 14.

The judge declined to discuss what she hoped to learn at the three northern sites or in Crown Point, where she also visited the early voting office at the Lake County government center.

Bill Dolan reports in the NWI Times in a story that begins:
CROWN POINT | Early in-person voting continued another day Monday while a judge toured Gary, Hammond and East Chicago satellite voting locations and heard hours of testimony and arguments on whether they are legal and fair.

Lake County Superior Court Judge Diane Kavadias-Schneider promised to rule either today or early Wednesday, but acknowledged the court battle over satellite voting centers likely will be taken up by a higher court regardless of her decision.

Kavadias-Schneider visited the Gary, Hammond and East Chicago courthouses where lines of voters were casting ballots for the Nov. 4 presidential, state and local elections and questioned county elections board Director Sally LaSota about the process of early voting and safeguards against vote fraud.

She explored with LaSota whether to open even more early in-person voting centers in suburban communities in response to Republican complaints Democrats have opened voting in the county's three largest Democratic strongholds.

However, R. Lawrence Steele, a GOP lawyer, told the judge they don't want more early voting centers open, they want Gary, Hammond and East Chicago's centers closed.

Kavadias-Schneider asked, "What of those who have already voted?" Steele said, "Maybe those votes should be discarded."

Here is a list of most ILB entries on the early / remote voting case in Lake County.

Posted by Marcia Oddi on Tuesday, October 21, 2008
Posted to Indiana Courts

Ind. Gov't. - Still more on the Attorney General race

Updating this ILB entry from yesterday, today the Indianapolis Star endorsed Greg Zoeller for AG in this editorial that concludes:

Zoeller's style and approach to the job are less dramatic than Pence's. But, as mentioned, he has a record of quiet and effective service on his side.

Zoeller promises to target sexual predators and root out public corruption. He also wants to expand an existing identify-theft program and protect teachers from nuisance lawsuits.

Both candidates are clearly qualified. The choice comes down to whether Pence's vision of a much larger influence of the attorney general on the local level is a better approach than Zoeller's strategy of continuing but enhancing the office's traditional functions.

The Star favors Zoeller in part because of his record of success. But also because his understanding of the attorney general's role appears more realistic than Pence's.

Posted by Marcia Oddi on Tuesday, October 21, 2008
Posted to Indiana Government

Monday, October 20, 2008

Ind. Courts - More on: Hearing set in early voting case [Updated]

Updating this entry from Oct. 17 re the hearing in the early voting case being set for 10 AM today, the NWI Times reported at 12:37 PM, in a story that begins:

HAMMOND | A Lake County judge began hearing arguments at 10 a.m. Monday in the county's early voting satellite centers controversy.

Lake Superior Court Judge Diane Kavadias-Schneider, whose courtroom is based at the Hammond courthouse, is hearing the arguments between feuding Democrats and Republicans regarding early voting centers in Hammond, East Chicago and Gary.

The judge took a recess from the courtroom early Monday afternoon to tour the voting sites in question before making her ruling. She has scheduled closing arguments in the case for 4 p.m.

[Updated at 7:22 PM] CBS 2 Chicago has a report stating: "CBS 2's Mike Parker reports that a specially appointed judge has just wrapped up a day long hearing on Indiana's early voting law, and whether it's being violated in Lake County. A decision is days away."

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to Indiana Courts

Law - "Walgreens Begins Retail Sale of Identigene DNA Paternity Test Kit"

From Market Watch, this news release from Identigene. Some quotes:

SALT LAKE CITY, Oct 20, 2008 (BUSINESS WIRE) -- Identigene today announced Walgreens has begun over-the-counter retail sales of the Identigene DNA Paternity Test Kit. It is the first DNA test kit to ever be sold over-the-counter and, with the addition of Walgreens, is now available in more than 15,000 retail locations in 48 states. Walgreens is also offering the DNA paternity test kits through its Web site, Walgreens.com.

Prior to the advent of the Identigene DNA Paternity Test Kit, the generally known method of obtaining a DNA paternity test often required court involvement, weeks of waiting for results, and a cost of several hundreds of dollars. Identigene's retail kit makes the process a more convenient and affordable service available in the family planning or home diagnostic aisle of the local pharmacy. * * *

Although the Identigene kit is not intended for legal purposes, consumers who wish to use the results for legal proceedings may contact Identigene customer service to coordinate specific specimen collection and chain-of-custody procedures with a disinterested third-party. While the specimen collection process is different for legal testing, the laboratory analysis and reporting for Identigene's DNA testing is the same for both legal and personal purposes.

Thanks to the Kentucky Divorce and Family Law Blog for the link.

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to General Law Related

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

For publication opinions today (1):

In James G. Clark and Larry A. Biddle III v. Donald and Janet Simbeck, a 12-page, 2-1 opinion, Sr. Judge Hoffman writes:

Defendants-Appellants James G. Clark (“Clark”) and Larry A. Biddle, III (“Biddle”) appeal the trial court’s judgment in favor of Plaintiffs-Appellees Donald Simbeck (Donald) and Janet Simbeck (“Janet”). We affirm in part and reverse and remand in part. * * *

[Issues] I. Whether the trial court erred in denying Clark and Biddle’s motion for continuance. II. Whether the trial court erred in suggesting that Clark and Biddle admit liability, waive a jury trial, and proceed with a bench trial on damages. III. Whether the trial court’s compensatory damage award was excessive. IV. Whether the trial court’s punitive damage award was excessive. V. Whether appellate attorney fees and charges should be awarded. * * *

V. Donald and Janet contend that Clark and Biddle’s appeal is frivolous and meritless. Thus, they claim that damages and attorney fees should be awarded pursuant to Indiana Appellate Rule 66(E). * * *

We find Clark and Biddle’s appeal to be neither frivolous nor in bad faith. Indeed, they prevailed in Issue IV. Accordingly, we deny Donald and Janet’s request for damages and fees.

We affirm on Issues I-III. We vacate the trial court’s punitive damage award and reverse and remand “so that the trial court may enter an award of punitive damages [if any] in an amount reflecting proper consideration of the defendant[s’] financial status.” See Stroud, id. at 447. We deny Donald and Janet’s request for damages and fees.

FRIEDLANDER, J., concurs. BAKER, C.J., dissenting in part with separate opinion: I respectfully dissent from the majority’s conclusion regarding the punitive damages award. I acknowledge our Supreme Court’s discussion of punitive damages in Stroud v. Lints. 790 N.E.2d 440 (Ind. 2003). In this case, however, I believe that the appellants’ conduct on the night in question was so egregious, so malicious, and so brutal that the relatively nominal punitive damages award of $60,000 is warranted. Therefore, I would affirm the trial court’s punitive damages award. In all other respects, I concur with the majority.

NFP civil opinions today (0):

NFP criminal opinions today (2):

James Doane v. State of Indiana (NFP)

Elmer Saxton v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Oct. 17, 2008

Here is the just issued transfer list for the week ending Oct. 17, 2008. It is 3 pages long.

Three transfers were granted last week: Bush v. State Farm Mutual (see 10/15/08 ILB entry here): and Breaston v. State and In re adoption of B.W (see 10/16/08 ILB entry here).

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, October 20, 2008
Posted to Indiana Transfer Lists

Ind. Gov't. - More on the Attorney General race

Jon Murray has a long story today in the Indianapolis Star highlighting the race for Indiana attorney general. It begins:

The man who served as chief deputy in the Indiana attorney general's office during Steve Carter's two terms wants to expand on efforts such as the do-not-call list that made his boss popular with voters.

The Democratic challenger hopes to overhaul the office, assigning its lawyers new tasks and elevating the top post's role into a strong advocate for children and against crime.
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Both hope you'll notice their plans -- even if you only remember a 30-second TV ad -- amid an election season consumed by a contentious governor's race and the most active presidential contest in Indiana in recent memory.

The Star is scheduled to endorse an AG candidate tomorrow.

Today the Fort Wayne Journal Gazette endorsed Linda Pence for AG in this editorial that begins:

Hoosiers are fortunate in having two qualified and competent candidates vying to serve as attorney general. Incumbent Steve Carter decided not to seek re-election, but the race between the Democratic candidate, Linda Pence, and the Republican candidate, Greg Zoeller, still comes down to a choice between the status quo or reinvigorating the office.

Voters should choose Pence. She is the more experienced attorney and has a management plan that should improve the functioning of the attorney general’s office.

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to Indiana Government

Ind. Law - "It's the law: How much alcohol is too much for drivers?"

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on drunken driving laws. The article begins:

Every day, three or four people get arrested on drunken driving charges in Porter County -- making it one of the offenses most likely to fill the county jail.

"When you make 1,300 arrests for drunken driving (in a year) -- and those are the ones we catch. It's unknown the amount who aren't getting caught -- I'd say that is a problem," said Valparaiso police Sgt. Michael Grennes, who also serves as Porter County Drunk Driving Task Force chairman.

In Indiana, it is illegal to drive with a blood-alcohol concentration of .08 or above. A 160-pound person can reach that level by drinking about four drinks in one hour.

Drunken driving is a misdemeanor offense, with first time offenders generally not receiving jail time. However, the offense becomes a felony if the person has a prior conviction during the previous five years or if the drunken driving results in injury or death.

A person faces up to three years in prison if they injure somebody, or eight years if they have a prior conviction. A person faces up to eight years if they kill someone, or 20 years if they have a prior conviction.

People stopped on suspicion of drunken driving and who refuse to take a breath test, face the loss of their license for a year. And, Grennes said, police have the option of getting a search warrant for the person's blood in order to test for alcohol levels.

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to Indiana Law

Ind. Courts - Delaware County judicial races are the big money contests locally"

Rick Yencer reports today in the Muncie Star-Press, in a story that begins:

Delaware County judicial races are the big money contests locally, with two nominees for judge giving donations to the campaigns of some of their fellow Democratic candidates, rather than to the county's Democratic Party Central Committee.

Muncie City Court Judge Linda Wolf, Democratic nominee for judge of Circuit Court 3, and veteran attorney Tom Cannon Jr., Democratic nominee for the Circuit Court 5 bench, lead local judicial candidates -- including Republican judges John Feick of Circuit Court 4 and Chris Teagle of Circuit Court 5 -- in fundraising and spending.

Cannon raised the most of any local judicial candidate -- $57,425 -- in campaign finance reports through Oct. 10, which were due on Friday. His campaign had spent $49,646, including more than $10,000 on large billboards that feature Cannon's name and face.

Wolf also is a big billboard candidate, raising $51,792 and spending $44,192. Most of that money came from her own pocket.

Joyce Clevenger, Wolf's campaign treasurer, said the six-term city court judge always appreciated support from contributors, but given tough economic times, Wolf felt she should primarily fund her own campaign.

And Wolf also decided to contribute to all other Democratic candidates on the Nov. 4 ballot, instead of paying an assessment to the Democratic central committee.

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Oct. 23th:

9:00 AM - City of East Chicago v. East Chicago Second Century - In an action involving the direction of certain percentages of riverboat gaming revenue to the City of East Chicago, two non-profit foundations, and a for-profit corporation, the trial court denied the City's motion for summary judgment and dismissed eight of the City's nine counterclaims. On the City's interlocutory appeal and Second Century's cross-appeal, the Court of Appeals affirmed the denial of summary judgment to the City and held that all nine of the City's counterclaims should be dismissed on statute of limitations grounds. City of East Chicago v. East Chicago Second Century, Inc., 878 N.E.2d 358 (Ind. Ct. App. 12/21/2007), vacated. (See ILB entry here) The Supreme Court has granted a petition to transferthe case and has assumed jurisdiction over the appeal. For Appellant, City of East Chicago: James A. Knauer, William Bock, III, and Steven E. Runyan, Indianapolis, IN. For Amicus Curiae, Office of the Attorney General: Steve Carter, Thomas M. Fisher and Heather L. Hagan, Indianapolis, IN. For Appellee, East Chicago Second Century: J. Lee McNeely and Brady J. Rife, Shelbyville, IN. For Appellee, Foundations of East Chicago: Peter J. Rusthoven, Mark J. Crandley, Deborah Pollack-Milgate and Paul L. Jefferson, Indianapolis, IN.

9:45 AM - Steve Carter v. East Chicago Second Century - After the Attorney General intervened in an action involving the direction of certain percentages of riverboat gaming revenue to the City of East Chicago, two non-profit foundations, and a for-profit corporation, the trial court dismissed the Attorney General's counterclaim and crossclaim seeking imposition of a public charitable trust or a constructive trust over the percentage of revenue distributed to Second Century. On appeal, the Court of Appeals affirmed. Steve Carter v. East Chicago Second Century, Inc., 881 N.E.2d 1114 (Ind. Ct. App. 3/12/2008), vacated. (See ILB entry here) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. For Appellant, Office of the Attorney General: Steve Carter, Thomas M. Fisher, Heather L. Hagan and Patrick L. Baude, Indianapolis, IN. For Appellee, East Chicago Second Century: J. Lee McNeely and Brady J. Rife, Shelbyville, IN

Webcasts will be available here.


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

None scheduled.

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

This Tuesday, Oct. 21st:

12:30 PM - James Gibson, et al vs. Indiana Department of Correction, et al - Effective July 1, 2007, the Indiana statutes providing for a sex offender registry were amended to create a sex and violent offender registry. Ind. Code § 36-2-13-5.5. Thus, one who is convicted of murder, manslaughter, attempted murder, or attempted manslaughter who fails to register with local law enforcement authority in the county where he/she resides, works, and/or is enrolled in school, commits a felony. Ind. Code §§ 11-8-8-7, -17. In August 2007, the plaintiffs, former offenders, filed a complaint asserting that their inclusion on the registry and the imposition of the various registration requirements violates the Indiana Constitution, specifically Sections 23 and 12 of Article 1. The defendants include the Indiana Department of Correction and various county sheriff's departments and prosecutors. Following a hearing, the Marion Superior Court issued findings of fact, conclusions of law, and entry of preliminary injunction on March 13, 2008. The plaintiffs, now certified as a class, appeal the denial of the preliminary injunction with respect to the 10-year registration requirement for violent offenders. The defendants, also now certified as a class, cross-appeal the portion of the preliminary injunction that bars lifetime registration by certain violent offenders. The Scheduled Panel Members are: Judges Darden, Mathias and Crone. [Where: Rediger Auditorium, Taylor University, 236 West Reade Avenue, Upland, Indiana 46989]

Posted by Marcia Oddi on Monday, October 20, 2008
Posted to Upcoming Oral Arguments

Sunday, October 19, 2008

Environment - "Federal Officials Seek to Relax Rules for Dumping Mine Waste"

Be sure to view the photo accompanying this AP story today on mountaintop mining in the New York Times. The story begins:

The Interior Department has advanced a proposal that would ease restrictions on dumping mountaintop mining waste near rivers and streams, modifying protections that have been in place, though often circumvented, for a quarter-century.

The department’s Office of Surface Mining issued a final environmental analysis Friday on the proposed rule change, which has been under consideration for four years. It has been a priority of the surface mining industry.

It sets the stage for a final regulation, one of the last major environmental initiatives of the Bush administration, after 30 days of additional public comment and interagency review.

The proposed rule would rewrite a regulation enacted in 1983 that bars mining companies from dumping huge waste piles, known as “valley fills,” within 100 feet of any intermittent or perennial stream if the disposal affects water quality or quantity.

The revisions would require mining companies to minimize the debris they dump as much as possible, but would also let them skirt the 100-foot protective buffer requirement if compliance is determined to be impossible.

“The new rule will allow coal companies to dump massive waste piles directly into streams, permanently burying them,” warned Joan Mulhern of Earthjustice, an environmental group that has fought the practice.

The ILB has had a long list of earlier entries on this topic.

Posted by Marcia Oddi on Sunday, October 19, 2008
Posted to Environment

Saturday, October 18, 2008

Ind. Law - "ACORN followed law on suspect voter registrations" [Updated]

A good story today by Tim Evans of the Indianapolis Star cuts through some of the election law confusion currently rampant. Some quotes from the lengthy story:

ACORN, the liberal-leaning community activist group, followed the law when it notified authorities that some of the voter registration applications it submitted in Lake County apparently were fraudulent.

What's not clear is whether canvassers acted alone when they created those fraudulent registrations -- a felony officials say they will prosecute -- or whether ACORN might have played some role in their creation.

The group, which has come under fire by Republican Sen. John McCain's presidential campaign for purportedly padding election rolls, acknowledged that some of the canvassers it hired submitted the fraudulent applications.

But ACORN said it had nothing to do with producing the registrations and pointed out it is barred by law from destroying any applications. It also said it is required to turn them in even if it thinks the registrations are fraudulent.

Election officials confirmed ACORN's responsibility under the law. * * *

Nathaniel Persily, a Columbia Law School professor, said registration fraud is very different from actual voter fraud, which occurs at the polls.

"The effect is not going to change the outcome of the election or allow imaginary people to vote," he said.

ACORN said it took steps to ensure officials knew some of the registrations it turned in were potentially bad.

"We ID'd those applications as questionable," Charles D. Jackson, spokesman for the Association of Community Organizations for Reform Now, said of the Lake County applications.

"We turned them in three separate stacks: ones we had been able to verify, ones that were incomplete and ones that were questionable or suspicious."

Jim Gavin, spokesman for Secretary of State Todd Rokita, Indiana's top election official, confirmed that groups that conduct registration drives in the state must turn in all applications they collect.

Failure to do so, Gavin said, is a Class A misdemeanor punishable by a fine of up to $5,000 and up to one year in prison.

Ruthann Hoagland, assistant registration administrator with the Lake County Board of Elections and Voter Registration, confirmed that about 2,500 applications ACORN submitted were divided into three groups, as Jackson described. * * *

In Indiana, local election officials must verify every application through a variety of sources -- including the BMV, state Department of Health, a federal Social Security database, and the Department of Correction -- before they are added to the voter rolls.

The state's voter ID law, one of the strictest in the U.S., also helps prevent voter fraud, experts said.

The controversy, Persily said, "is distracting from what may be the real problem -- under-qualified, overwhelmed precinct workers and the use of new voting technology and voter registration databases."

"These issues with ACORN may prove to be tiny in comparison with the problems we see on Election Day," Persily said.

[Updated 10/19/08] John Byrne of the Gary Post-Tribune has a long story today that begins:
CROWN POINT -- Ethel Graves just wants to vote.

But like thousands of other would-be voters in Lake County, Graves has gotten swept up in a nationwide controversy over alleged voter fraud by the community organization ACORN.

After moving to Gary from Chicago in July, Graves was approached outside the city's Bureau of Motor Vehicles office by an ACORN canvasser who asked if she wanted to register to vote in the November general election.

"I said, 'Oh, good, you're saving me a trip (to the voter office in Crown Point),' " Graves recalled.

But nearly three months -- and a trip to Crown Point -- later, Graves still was waiting to receive her voter registration card last week.

That's because election officials stopped processing the applications submitted by ACORN amid accusations that information was falsified on hundreds of the forms.

Election workers now are culling through about 5,000 ACORN applications, trying to figure out which are fraudulent, assistant registration administrator Ruthann Hoagland said.

Based on early estimates, Hoagland said about half have some kind of omission or obvious error. The forms with no obvious problems will get processed.

Another 20,000 registration applications not submitted by ACORN also must be checked and entered in Lake County, with the hotly contested election two weeks away and early voting already taking place at four locations.

Posted by Marcia Oddi on Saturday, October 18, 2008
Posted to Indiana Law

Ind. Law - Indiana's Constitutional provisions guiding state investments

Curious because of current market conditions, I've reviewed the Indiana Constitution and statutes, but cannot say for sure that I've found everything.

This is what I found in Article 11. An amendment to the language of the 1851 version of Section 12 was approved by the voters in 1996

1851 version of Article 11, Section 12

Section 12. The State shall not be a stockholder in any bank, after the expiration of the present bank charter;

nor shall the credit of the State ever be given, or loaned, in aid of any person, association, or corporation;

nor shall the State hereafter become a stockholder in any corporation or association.


Current version of Article 11, Section 12

Section 12. The State shall not be a stockholder in any bank;

nor shall the credit of the State ever be given, or loaned, in aid of any person, association or corporation;

nor shall the State become a stockholder in any corporation or association.

However, the General Assembly may by law, with limitations and regulations, provide that prohibitions in this section do not apply to a public employee retirement fund.

(History: As Amended November 5, 1996).

As for state laws relating to state investments, see:

IC 5-13-10.5, state investments. Note that IC 5-13-10.5-2 states that "the treasurer of state, under the guidelines established by the state board of finance, * * * may invest or reinvest funds held by the treasurer of state * * * ." The governor, auditor and treasurer constitute the state Board of Finance. I have not located the guidelines referenced. The Board of Finance does not appear to have promulgated rules.

IC 5-10.3-5, PERF accounts and investments, particularly Sec. 3. Who is on the PERF board of trustees? See IC 5-10.3-3.

Posted by Marcia Oddi on Saturday, October 18, 2008
Posted to Indiana Government | Indiana Law

Ind. Gov't. - "Floyd County deeds now online"

Chris Morris reported Oct. 16th in the Jeffersonville/New Albany News & Tribune:

Linda Berger knows how to keep a campaign promise. Although she admits time was slowly running out.

Berger, the Floyd County Recorder, vowed eight years ago to get all of the property deeds and other items in the recorder’s office online before her term ran out. The work was completed last week. She leaves office Dec. 31.

“It’s been an uphill climb,” she said Tuesday as she held an open house to show off her Web site’s capabilities.

Berger estimates more than 3 million items from the recorder’s office are available online. She said transferring all the data, from 1986 to the present, was time consuming and tedious, but was all paid for through her perpetuation fund. She said no taxpayer money was used to transfer the copy.

“It had to be done, and it needed to be done,” she said. “Now there is talk all over the building about getting more online. It’s very user friendly.

“Now if you need a deed you can sit at home in your pajamas and print it. You don’t have to come down to our office.”

Berger said her link on the Floyd County Web site has been up for more than a week and she said she has seen less traffic in her office.

“It’s a big step forward for this county,” she said.

Floyd County Commissioner Steve Bush said having a Web site, which is user friendly, is what the county is working toward.

“That is the direction we are going,” he said. “This is the first step. People want to be informed, and the only way to do that is to put everything online because everyone uses a computer.”

Here is the link to the Floyd County Recorder's Office Online Document Search

Posted by Marcia Oddi on Saturday, October 18, 2008
Posted to Indiana Government

Environment - Union-Go CAFO gets draft permit to expand

Seth Slabaugh of the Muncie Star- Press has a story today that begins:

The Indiana Department of Environmental Management is being criticized for permitting Union-Go dairy, a concentrated animal feeding operation (CAFO), to expand despite ongoing environmental problems.

"How can we be expected to trust IDEM when they are approving an expansion for a facility with a failing lagoon?" asked Rachel Carpenter, a member of Environmentally Concerned Citizens of Randolph County (ECCRC).

Problems at the dairy have included failure to maintain at least two feet of freeboard in the 20-million-gallon manure lagoon; a manure spill into Sparrow Creek; an unreported manure spill into Eight Mile Creek, and bubbles in the lagoon's synthetic liner.

"These bubbles are now enormous and are likely caused by manure leaking under the liner," according to Carpenter. "The liner is failing, which could lead to ground water contamination."

In addition, ECCRC is asking how IDEM can approve a permit for expansion when ECCRC's administrative appeal of Union-Go's original permit several years ago is still pending.

For background, begin with this ILB entry from June 26, 2007.

Posted by Marcia Oddi on Saturday, October 18, 2008
Posted to Environment

Friday, October 17, 2008

Ind. Decisions - "Appeal denied in West Lafayette housing code case"

As related in this ILB entry earlier this afternoon, the COA today decided in a very brief ruling in the case of James H. Bowden and Edward E. Bowden v. City of West Lafayette, Indiana (NFP) - "Here, Appellants’ counsel has failed to support his argument with cogent reasoning and citation to authorities in support of his position. The failure to make a cogent argument is equivalent to a failure to file a brief. Bright v. Kuehl, 650 N.E.2d 311, 317 (Ind. Ct. App. 1995). Consequently, the issues presented here on appeal are waived, and the decision of the trial court is affirmed."

Sophia Voravang reports this afternoon on the Lafayette Journal Courier website:

A West Lafayette man and his father must pay the city of West Lafayette nearly $120,000 for having too many tenants in one of their properties, the Indiana Court of Appeals ruled today.

Edward Bowden and his father, James, were accused of letting more than three people live in a house at 810 N. Grant St. between Aug. 1, 2006, and July 15, 2007.

A West Lafayette city ordinance prohibits more than three unrelated people from living together in areas zoned residential. The purpose of the ordinance is to "protect neighborhoods and provide safe and decent housing," according to the city's Web site.

The Bowdens' case was one of three civil complaints, filed by the city over code violations by landlords, that were heard in the past year by Tippecanoe Superior Court 2 Judge Thomas Busch.

Busch granted summary judgment in January to the city, ordering that the Bowdens pay $119,400 for violations that also included renting the house without a proper certificate.

The father and son appealed, and their Lafayette-based attorney, Frederick Meessen, argued the case before the Court of Appeals last month.

See this ILB entry from Oct. 4th for more information. More from this afternoon's story:
In its one-page, unanimous ruling issued today, the higher court affirmed Busch's ruling on grounds that Meessen's argument was not convincing enough.

"The failure to make a cogent argument is equivalent to a failure to file a brief," Judge James Kirsch wrote, adding a footnote that implies the appeal can be resubmitted.

"[1] Our decision today is not meant to ignore the serious nature of the procedure involved in this matter. However, we save our discussion for another day when the issues are more properly presented to this court."

Contacted this afternoon, Meessen said he had not yet read the ruling. But he said that the Bowdens do have some recourse, including asking for a rehearing or a transfer to the Indiana Supreme Court.

BTW, the ILB does not read the footnote to imply that the appeal can be resubmitted.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Hearing set in early voting case

From a release just issued by Kathryn Dolan, Indiana Supreme Court Public Information Officer:

Special Judge Diane Kavadias Schneider has set a hearing for the case relating to a dispute involving “early voting sites” in Lake County.

On October 16, 2008, the Indiana Supreme Court appointed Judge Schneider as a special judge to hear the consolidated cases of Lake Circuit and Lake Superior Courts. The consolidated case number is 45D01-0810-PL-82. After a conference call with the attorneys of record in the matter--Judge Schneider set the case for hearing.

Monday, October 20th, 10:00 a.m. Central Time, Courtroom 1, 232 Russell Street, Hammond.

Further inquires about the case or media coverage should be directed to Kathryn Dolan, Indiana Supreme Court Public Information Officer.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Indiana Courts

Ind. Courts - "Judicial candidates for Porter County Superior Court"

The NWI Times has extensive coverage on the Porter County Superior Court races today. It begins:

In addition to offering stories about judicial candidates in the race for Porter Superior Court 1 and Porter Superior Court 4, for the first time The Times will offer readers a chance to watch judicial candidates discuss their qualifications.

Below you will find a candidate survey released Thursday by the Porter County Bar Association and stories on both races, in addition to short videos featuring the county's four judicial candidates: Republican incumbent Porter Superior Court 1 Judge Roger Bradford and his Democratic challenger William Suarez; and Democratic incumbent Porter Superior Court 4 Judge David Chidester and his Republican opponent Tim Vojslavek.

Be sure to check out the four videos.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Indiana Courts

Ind. Courts - "Peers laud Lake judge"

From the Gary Post-Tribune, a story that begins:

Lake Superior Court Judge Thomas Stefaniak Jr. was named Judge of the Year for 2008 by the Indiana Correctional Association.

Stefaniak, who has been a criminal division judge since 2001, was singled out for his role in expanding the Lake County Community Corrections program to include a women's work release component.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Eddie Cantrell and Cantrell Bldg. Svcs., Inc. v. Putnam Co. Sheriff's Dept. and the State of Indiana , a 13-page opinion, Judge Brown writes:

Eddie Cantrell (“Cantrell”) and Cantrell Building Services, Inc. (“Corporation”), appeal the trial court’s judgment for the Putnam County Sheriff’s Department (“Sheriff’s Department”) and the State of Indiana (“State”). Cantrell and the Corporation raise two issues, which we consolidate and restate as whether the trial court erred by ordering the forfeiture of a vehicle owned by the Corporation after Cantrell was arrested with drugs in the vehicle. We affirm.

The relevant facts follow. Cantrell was the president and sole shareholder of the Corporation, which owned a 2005 Cadillac Escalade. The Corporation provided the Escalade to Cantrell as part of his compensation package. In November 2005, Cantrell went on a hunting trip for personal pleasure to Kansas City and drove the Escalade. On November 4, 2005, as Cantrell was returning from the trip, Deputy Dwight Simmons stopped Cantrell for having a false and fictitious registration. During a search of the vehicle,1 Deputy Simmons found six grams of cocaine in the vehicle. The cocaine was for Cantrell’s personal use. Cantrell was ultimately convicted of possession of cocaine as a class C felony.

The Sheriff’s Department and the State filed a complaint for forfeiture of the Cadillac Escalade pursuant to Ind. Code §§ 34-24-1. After a bench trial, the trial court entered findings of fact and conclusions of law granting the forfeiture request.

The issue is whether the trial court erred by ordering the forfeiture of the vehicle owned by the Corporation after Cantrell was arrested with drugs in the vehicle. * * *

Because Cantrell’s knowledge is imputed to the Corporation, we conclude that the State and Putnam County proved by a preponderance of the evidence that the Corporation knew or had reason to know of Cantrell’s possession of drugs in the Escalade. The trial court’s order granting the forfeiture of the vehicle is not clearly erroneous. For the foregoing reasons, we affirm the trial court’s forfeiture order.

In Christopher Mann v. State of Indiana , a 9-page opinion, Judge Robb writes:
Following a jury trial, Christopher Mann appeals his conviction and sentence for aggravated battery, a Class B felony. On appeal, Mann raises two issues, which we restate as 1) whether sufficient evidence supports Mann’s conviction and 2) whether Mann’s sentence violates the Proportionality Clause of Article I, Section 16, of the Indiana Constitution. Concluding that sufficient evidence supports Mann’s conviction and that his sentence does not violate the Proportionality Clause, we affirm.NFP civil opinions today (2):

James H. Bowden and Edward E. Bowden v. City of West Lafayette, Indiana (NFP) - "Here, Appellants’ counsel has failed to support his argument with cogent reasoning and citation to authorities in support of his position. The failure to make a cogent argument is equivalent to a failure to file a brief. Bright v. Kuehl, 650 N.E.2d 311, 317 (Ind. Ct. App. 1995). Consequently, the issues presented here on appeal are waived, and the decision of the trial court is affirmed."

The Matter of the Term. of Parent-Child Rel. of A.T., IV, and A.T. (minors); A.T., III (father) v. Vanderburgh Co. Dept. of Child Svcs. (NFP) "Alfred T., III (“Father”) appeals the involuntary termination of his parental rights, in Vanderburgh Superior Court, to his children, A.T. IV, and A.T. Father challenges the sufficiency of the evidence supporting the trial court’s judgment. We affirm."

NFP criminal opinions today (4):

Yulonda Glover a/k/a Bashon Glover v. State of Indiana (NFP)

Vernando Ross v. State of Indiana (NFP)

Vanessa Y. Leslie v. State of Indiana (NFP)

Antiowan D. Loftin v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Ind. App.Ct. Decisions

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

In Classic Cheesecake Company v. JPMorgan Chase Bank (SD Ind., Judge Lawrence), a 17-page opinion, Judge Posner writes:

This appeal requires us to interpret a gloss that the Indiana courts have placed on their state’s statute of frauds: an oral agreement that the statute of frauds would otherwise render unenforceable creates a binding contract if failing to enforce the agreement would produce an “unjust and unconscionable injury and loss.” E.g., Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001). The issue arises from the plaintiffs’ supplemental claims, 28 U.S.C. § 1367, which are based on Indiana law. The federal claim on which the district court’s jurisdiction was originally based, a claim based on the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., was resolved in the plaintiffs’ favor but gave them only modest relief. The appeal challenges the court’s dismissal under Rule 12(b)(6) of the supplemental claims. * * *

The duration of reliance in the present case was much shorter than in the other cases that we have discussed, and the reliance is more easily imagined as based on hope than on a promise. And not all of it could be considered reasonable reliance, which is the only kind that can support a claim of promissory estoppel and a fortiori an invocation of the enhanced promissory-estoppel doctrine of the Indiana cases. * * * The level of reliance that could be thought to have been reasonable in this case was not comparable to that involved in the other cases. In the end, this case turns out to be a routine promissory estoppel case, and that is not enough in Indiana to defeat a defense of statute of frauds. AFFIRMED.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Roommates defend settlement before Indiana Supreme Court"

Oral arguments were heard yesterday at the Indiana University School of Law-Bloomington, before the Indiana Supreme Court in the case of Stanley Klotz v. Sarah Hoyt & Chrissy Kornmann - see this ILB entry from Oct. 13th for background. Marcela Creps reports today in the Bloomington Herald-Times in this story ($$) -- here are some quotes:

Tenants Sarah Hoyt and Chrissy Kornmann admitted they had done a few things wrong when the roommates decided they could no longer share a Muncie apartment. But despite not paying most of the rent and leaving the apartment damaged, the two won a court case in which the landlord was ordered to return their security deposit.

The appeals case, Klotz v. Holt, was heard at the Indiana University School of Law by the Indiana Supreme Court, allowing members of the public a glimpse into the legal system.

The two women, who rented an apartment in Muncie in 2006, signed a year’s lease and paid rent for the first month and a half. But the two didn’t get along, repeatedly fought and eventually parted ways. In the split, only Hoyt testified that she notified the landlord, Stan Klotz, of her intent to leave. Klotz started eviction proceedings and attempted to collect rent payments as well as costs incurred when the two damaged the apartment.

The tenants agreed that they didn’t pay the rent. They also didn’t dispute that the apartment was damaged. But Hoyt still wanted her security deposit back based on a statute that required Klotz to provide an itemized list of damages.

Despite being owed $6,300 in back rent and late fees of $2,270, as well as $2,848.94 in damages to the apartment, Klotz lost his bid to recoup any money and instead was ordered to return the deposit. He is appealing that decision.

During Thursday’s proceedings, attorney David Karnes argued that his client, Klotz, had provided an itemized list to the tenants on March 16, 2007, the same date of a damages hearing.

The justices questioned why the tenants didn’t request a continuance upon being presented with the damages list in court. Chief Justice Randall T. Shepard asked Karnes if he believed the tenants had a right to ask for a continuance, and Karnes agreed. * * *

Hoyt’s lawyer, Alan Wilson, argued that the damages list lacked specifics. Justice Frank Sullivan Jr. questioned Wilson about his concern about specificity. Wilson maintained the list needed to be more clearly defined.

Shepard pointedly asked Wilson what should happen in this case. “Spin it. What do you think should have happened?” Shepard asked.

Wilson argued that the tenants were misled about what they needed to defend in court because they received the damages list in court. Wilson also agreed that the tenants should have asked for a continuance, but he asserted that his clients were not legally savvy and may not have realized that was an option.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - COA upholds state OK of coal gasification plant

The Court of Appeals decision yesterday in the case of Citizens Action Coalition of Indiana, Inc., et al. v. PSI Energy, Inc., et al. (see ILB summary here - 4th case) is the subject of an AP story today in the Indianapolis Star that begins:

The Indiana Court of Appeals upheld regulators' approval of Duke Energy's proposed $2.35 billion coal gasification power plant Thursday, handing a defeat to environmental groups that had opposed the project.

The southwestern Indiana plant - one of the first projects of its kind - is scheduled to go online in 2012 near the town of Edwardsport and use advanced coal-gasification technology to produce power with far fewer emissions than conventional coal-fired plants. Construction unofficially began in July.

The Sierra Club, Citizen Action Coalition of Indiana, Valley Watch and Save the Valley appealed the Indiana Utility Regulatory Commission's November 2007 approval of the project. The groups argued that the commission erred by failing to reopen proceedings to admit new evidence and questioned whether law allowed Duke to recover costs during construction, whether officials adequately considered the plant's future costs and whether state laws favoring use of Indiana coal violated the interstate commerce clause of the U.S. Constitution.

But the Court of Appeals ruled against the groups on all four issues. The court held that evidence of increased construction costs and other factors did not necessitate reopening proceedings because, in part, those factors were anticipated in the commission's order.

The court also said the commission did not err in allowing Duke to recover costs during construction. It also held that Duke and the commission had considered the potential costs that might eventually be imposed by federal greenhouse gas limits. Duke has a proposal before state utility regulators to test technology to capture and store the plant's carbon dioxide below ground.

The groups also asked the court to overturn state laws expressing a preference for Indiana coal in approving utility projects. But the court said that even if the laws were overturned, the groups would not be entitled to relief and the commission did not consider the use of Indiana coal as a factor in granting Duke's petition.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Ind. App.Ct. Decisions

Law - Chicago firms laying off attorneys and staff

Ameet Sachdev of the Chicago Tribune reports:

Two Chicago law firms fired attorneys this week, and more layoffs loom as firms retrench in the face of financial tumult hitting their corporate clients.

Sonnenschein Nath & Rosenthal let go of about 24 lawyers out of 680, the second round of dismissals this year, and Katten Muchin Rosenman laid off 21out of 650, the firms confirmed Thursday.

Mass layoffs are rare in the legal industry. But in the past year they have happened more frequently at firms nationwide. Outside Chicago, firms announcing cuts in recent months have included Clifford Chance, Cadwalader, Wickersham & Taft and Thacher Proffitt & Wood.

The economic downturn caused by the credit crunch have stunted financial deals that earn big fees for corporate law firms. Even the number of new business-related lawsuits has fallen for the past two years * * *

Lawyers who have not made partner are the most vulnerable to losing their jobs. Salaries for so-called associates rose rapidly in recent years but now firms don't have enough work to keep them busy.

At Katten, the layoffs affected only those below partner across multiple offices and practice areas, according to a firm statement. The firm declined to say how many lawyers in Chicago were dismissed.

At Sonnenschein, the cuts affected a mix of partners and associates and included two lawyers in Chicago. The firm also laid off about 80 support staff. In May, the firm dismissed 37 lawyers and 87 staff members.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to General Law Related

Ind. Courts - Still more on: Special judge appointed in early voting case

Updating this entry from yesterday linking to the Supreme Court order appointing Diana K. Schneider as special judge in the consolidated cases in Lake County, a story today by John Byrnes of the Gary Post-Tribune begins:

HAMMOND -- The Indiana Supreme Court on Thursday appointed Superior Court Judge Diane Kavadias Schneider to take the reigns of Lake County's early voting controversy.

Attorneys in the case will meet via conference call this morning and request a hearing on a motion by Republican Party attorneys to close satellite voting sites in Gary, Hammond and East Chicago, according to Schneider's clerk.

Schneider will assume control of a case that has polarized the area as Democrats and Republicans vie for control of votes in the northern Lake County -- an area increasing seen as crucial in the battle for Indiana between presidential candidates Barack Obama and John McCain.

"I think she's eminently qualified to handle this case," said attorney James Wieser, who filed Wednesday to have the case removed from Lake Superior Court Judge Calvin Hawkins' courtroom.

Former Gov. Frank O'Bannon appointed Schneider to the Civil Division of the Lake Superior Court in 2000.

Marisa Kwiatkowski of the NWI Times has this story.

An AP story in the Indianapolis Star today includes this quote:

[Judge Diane Kavadias Schneider] was among three judges nominated to take over the case Wednesday by Lake Superior Court Judge Calvin Hawkins, who last week had granted Republicans an order barring the opening of the early voting centers while their legality was debated in the courts.

Posted by Marcia Oddi on Friday, October 17, 2008
Posted to Indiana Courts

Thursday, October 16, 2008

Ind. Law - Yet more on: "Indy Law Firm moves beyond its nightmare"

John Ketzenberger of the Indianapolis Star, who first wrote about this case two years ago, writes again today under the heading "Near-Death Experience:"

To think that a simple "yes" to a million-dollar settlement three years ago could have saved a lot of grief for a local law firm and more than $15 million for its malpractice insurer.

Insurance Commissioner Jim Atterholt closed the books on the failed Indiana Construction Industry Trust this week, returning nearly $18 million to 8,200 members of the trust. And that led to a tidy profit for attorneys Irwin Levin and Richard Shevitz, who pursued the settlements for Atterholt.

For the first time, a partner of Fillenwarth Dennerline Groth & Towe discussed the hellish three years since a jury found it liable for the trust's claims. There were a lot of bitter tears, uncertainty and raw emotions, since that 2006 verdict, partner William Groth said.

"Remarkably, everybody stuck together through what were some tough times," Groth said.

Frederick Dennerline III, who represented the trust, had wanted to settle the case for the $1 million policy limit on its malpractice insurance, but ProNational Insurance Co. refused. A convoluted legal battle ensued.

In June, Fillenwarth Dennerline settled with Atterholt for $50,000 and the right to collect whatever it could from ProNational. Settlement talks reached fruition early this week, after the insurer agreed to pay $16.5 million.

Fillenwarth Dennerline's clients were loyal throughout the ordeal, Groth said. Now that it's over, he added, "Business is as good now as it has ever been."

Guess it's true that what doesn't kill you makes you stronger.

See also this entry from June 20, 2008, and this one from July 8th.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Law

Ind. Courts - More on: Special judge appointed in early voting case

Updating this entry from earlier today, here is the partially hand-printed, file-stamped order appointing Diana K. Schneider as special judge in the consolidated cases in Lake County.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Ind. Decisions - Court grants two transfers this week

The formal transfer list will not be out until next Monday, but the ILB has just received notice that two cases were granted transfer today. They are:

The Adoption of unborn child B.W.; Wilfrido Garcia v. Davie Heine Bos and Janea Herbst Bos - here is the ILB summary of the July 18 COA decision - 2nd case.

Byron Breaston v. State - here is the ILB summary of the Aug. 27th COA opinion - 4th case.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Transfer Lists

Ind. Courts - More on appellate judges up for retention

I have created a new ILB category, Judicial Retention. Clicking on it will lead to all the ILB entries about the 2008 judicial retention ballot. I have also placed a temporary link in the upper right hand corner of this blog -- "Check here for entries on the Appellate Judges on the Nov. Ballot" -- it will remain there until after the November election.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts | Judicial Retention

Ind. Courts - More re judicial evaluations

A reader has pointed me to a May 5, 2005 article by Leonard Post of The National Law Journal, headed "ABA Offers New Way to Judge the Judges: Latest guidelines are aimed at education, defusing ideological litmus tests" Some quotes:

The American Bar Association has revised its guidelines for evaluating state court judges in a move to defuse ideological litmus tests that fuel attacks on judges and could potentially threaten judicial independence.

The ABA's old guidelines were meant mainly for self-improvement. They are now also aimed at educating those who re-elect or reappoint judges. The guidelines ask that judges be judged by objective criteria, including a judge's willingness to make impartial, difficult and unpopular decisions based on law and fact.

All that's left is for states to adopt the new guidelines. * * *

"We're hoping that states will look at the suggested guidelines and use them in developing their own evaluation systems," said Cesario, assistant director of the Center for Advocacy and Dispute Resolution and an adjunct professor at Chicago's John Marshall Law School.

The authority to develop and implement judicial evaluation systems should reside in each state's highest court, say the guidelines. The ABA guidelines have been referred to the Conference of Chief Justices' Professionalism and Competence of the Bar Committee, which will meet in July at the chiefs' annual meeting in Charleston, S.C., said Mary McQueen, president of the National Center for State Courts.

Six states that have judicial retention elections publicize their judicial evaluations: Alaska, Arizona, Colorado, New Mexico, Tennessee and Utah. About a dozen other states use evaluations solely for self-improvement purposes, according to the Drake University-based American Judicature Society.

But many question whether evaluations can be used in contested elections.

"No one's figured out a way to use them in competitive elections," said Malia Reddick, a political science professor at the University of Missouri-Columbia and the ABA committee reporter. "Because it puts candidates who aren't judges at a competitive advantage or disadvantage."

Here is a link to the guidelines. Here is the web page of the ABA Standing Committee on judicial Independence, which has a number of interesting links.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 12 today (and 4 NFP)

For publication opinions today (4):

In John D. and Stacy R. Hayes v. Robert Lee Chapman, Jr. , a 16-page, 2-1 opinion, Chief Judge Baker writes:

Appellants-defendants John D. Hayes and Stacy R. Hayes appeal the trial court’s order denying their counterclaim against appellee-plaintiff Robert Lee Chapman, Jr., and foreclosing Chapman’s mechanic’s lien on construction he performed on the Hayeses’ residence. The Hayeses argue that the trial court erroneously concluded that Chapman did not violate the Indiana Home Improvement Contract Act1 (HICA), that the mechanic’s lien was invalid because it contained mathematical errors when filed, and that the trial court erroneously awarded prejudgment interest to the Hayeses on the lien. Finding no error, we affirm. * * *

CRONE, J., concurs.
KIRSCH, J., concur and dissent with opinion. [which begins] I concur with the decision of my colleagues to affirm the decision of the trial court on the plaintiff’s complaint, but I respectfully dissent from their decision affirming the trial court’s order denying relief on the defendants’ counterclaim.

In Jesus Brown v. State of Indiana , a 9-page opinion, Judge Brown writes:
Jesus Brown appeals his conviction for escape as a class D felony. Brown raises one issue, which we restate as whether the trial court committed fundamental error in failing to instruct the jury about the offense of unauthorized absence from home detention. We affirm.
In Kory S. Foddrill v. Constance Crane , a 15-page opinion, Judge Bradford writes:
Appellant/Defendant Kory Foddrill appeals from a jury award of $194,100.00 in favor of Appellee/Plaintiff Constance Crane following trial on her negligence claim. Foddrill‟s arguments, partially restated, are that Crane produced insufficient evidence to sustain a negligence finding, the trial court abused its discretion in instructing the jury, and the jury award was excessive and not supported by the evidence. We affirm.
In Citizens Action Coalition of Indiana, Inc., et al. v. PSI Energy, Inc., et al. , a 25-page opinion, Judge Brown writes:
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Valley Watch, Inc., and Sierra Club, Inc., (collectively, “Appellants”) appeal the Indiana Utility Regulatory Commission’s grant of a petition filed by PSI Energy, Inc., d/b/a Duke Energy Indiana, Inc. (“Duke”) for the construction of a powerplant. Appellants raise four issues, which we revise and restate as:

I. Whether the Commission erred by denying Appellants’ request to reopen the record;
II. Whether the applicable statutes allow Duke to recover costs while the facility is under construction;
III. Whether the Commission adequately considered all known costs and estimates of future costs of the plant; and
IV. Whether Ind. Code §§ 8-1-8.5, Ind. Code §§ 8-1-8.7, and Ind. Code §§ 8-1-8.8 violate the Commerce Clause because the statutes express a preference for Indiana coal.

We affirm.

NFP civil opinions today (2):

In Peter A. Wilson and Natalie M. Wilson v. Paul and Sara Danger (NFP), an 8-page opinion, Judge Brown writes:

Peter and Natalie Wilson appeal the small claims court’s judgment in favor of Paul and Sara Danger. The Wilsons raise one issue, which we revise and restate as whether the conclusion of the small claims court that the parties’ Proration Agreement was unenforceable is clearly erroneous. We affirm. * * *

Here, the parties agreed to a pro-rata division of the real property tax liability for 2006. At closing, the parties then signed a Proration Agreement, the significance of which was not explained to the Dangers, stating that the Dangers would be solely responsible for any real estate taxes billed after the date of the closing. The Wilsons argue that the consideration for this agreement “is the exchange of promises to allocate liability for taxes based on the date the taxes were billed.” However, in contrast to DiMizio, under the modified agreement, the Wilsons would benefit by reducing their tax liability but would incur no detriment. The Dangers, on the other hand, while facing a greater tax liability, would receive no benefit. Accordingly, we conclude that there was no bargained-for-exchange in support of the modification, and, thus, we cannot say that the small claims court’s finding that the tax proration agreement was unenforceable for lack of consideration was clearly erroneous.

[ILB Note] Although the opinion indicates "BAKER, C. J. concurs in result with separate opinion," the attached concurring opinion of CJ Baker is to another case.]

John M. Nwannunu v. Joshua Wayne Gidley and Mary Gidley (NFP) - "Based upon this testimony, we conclude that J.G. presented evidence from which a jury could have reasonably inferred that Dr. Nwannunu’s actions proximately caused J.G.’s injuries." Affirmed.

NFP criminal opinions today (10):

Jayme Owens v. State of Indiana (NFP)

Brian Gary v. State of Indiana (NFP)

Michael Eward v. State of Indiana (NFP)

Pedro Deleon v. State of Indiana (NFP)

Diana Lynn Groves v. State of Indiana (NFP)

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

Kevin Lebar Stone v. State of Indiana (NFP)

Thomas Sneed v. State of Indiana (NFP)

Bruce L. White, Jr. v. State of Indiana (NFP)

Brian Handlon v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Special judge appointed in early voting case

Updating this ILB entry from this morning, the Supreme Court, which is on the road today, hearing an oral argument in Bloomington (details here), has just issued an order appointing a special judge in the Lake County early voting case.

Named is Superior Court Judge Diane Kavadias-Schneider, of Civil Division 1, located in Hammond.

A link to the Order will follow.

[More] Here is the brief Gary Post-Tribune story.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Ind. Courts - "St. Joseph County Bar Association has released results from its 2008 Judicial Survey"

Jeff Parrott of the South Bend Tribune reports today in a story that begins:

The St. Joseph County Bar Association has released results from its 2008 Judicial Survey, its first attempt in 18 years to rate the performance of the county's Superior Court judges.

The bar's roughly 500 members filled out e-mailed surveys containing 20 criteria, broken down by "legal ability," "integrity and impartiality," "professionalism and temperament" and "administrative capability."

The judges received only their own scores Tuesday night. The bar Wednesday posted all of the results on its Web site.

The lawyer group plans to conduct the survey annually from now on and wanted to publicize these results in time for voters to consider them before the Nov. 4 election, when Judges John M. Marnocha, Michael P. Scopelitis, David C. Chapleau and Jane Woodward Miller are up for a "yes" or "no" retention vote.

The judges were rated on a scale from 1 to 5, with 1 being " unacceptable," 2 being "below average," 3 being "average/acceptable," 4 being "above average" and 5 being "exceptional."

No judge averaged a "1" or "5" score.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Courts - Questions posted in another jurisidction to judges up for retention

I happened this morning across some quotes from a not-longer-available story in the The Legal Intelligencer, "the oldest law journal in the United States." In May of 2007 The Legal Intelligencer sent a 32-question questionnaire to all seven state Supreme Court candidates in Pennsylvania, where all judges initially are elected on a partisan ballot, and thereafter are up for retention every 10 years on a non-partisan retention ballot.

This ILB entry from May 9th, 2007, documented the questions sent to the candidates. I'm setting them out again below because many of them have relevance in the here and now:

Questions about you and the role of a judge:

1. What makes a good judge?

2. What is the biggest trap or mistake a judge can make?

3. How would you describe your judicial philosophy?

4. Which opinion do you think represents your best work?

5. If you could, which opinion would you take back or revise? Why?

6. What in your background has prepared you best for being a judge?

7. How would your personal views and experiences influence you as a justice?

8. What separates you from the other candidates and why would you be a better addition to the Supreme Court?

9. If elected, what would be your biggest priority on the court?

Questions about the law and legal practice:

10. Is there any area of the law that you think needs a closer look or guidance from the Supreme Court?

11. When deciding a case, how do you frame the issue and conduct your analysis to reach a conclusion?

12. Do you think there is a dilemma in how Rule 1925(b) is applied? And if so, what needs to be done to fix it?

13. Is the court threatening to make the practice of law too burdensome for solo and small-firm practitioners by increasing requirements for CLE, maintaining certain types of bank accounts, moving toward effective requirements for malpractice insurance, etc.?

14. Conversely, are clients adequately protected by the aforementioned requirements?

15. What is the greatest threat to the practice of law or problem the profession faces?

16. How important is consensus - particularly unanimous consensus - in high court opinions and are there limits when a justice should only concur, or should they do it any time they feel like it?

17. How important is stare decisis and when should a court depart from it?

Openness of the courts:

18. Does the court need to improve efforts to make the courts and what they do more open and accessible to the press and public?

19. Do you favor cameras in the courtroom, particularly for oral arguments before the Supreme Court?

20. Once litigants have chosen to enter the arena of the public courts, should confidential settlements be discouraged? Or should they be encouraged as a way for the system to reach swifter resolutions?

21. Under what circumstances should judges seal the records in a case? In general, should the practice of sealing records be encouraged for discouraged?

22. Should the court make more of its dealings - including meetings with other elected officials and reasons for recusal - open to the public?

Politics and public perceptions:

23. What should be the nature of the relationship between the court and the members of the other branches of government and how should the justices, particularly the chief justice, interact with them?

24. The pay raise decision: who do you think got it right, Justice Castille or Justice Saylor? Explain your answer.

25. Since judges are elected and you are running as a member of a political party, what does your party membership say about you and how big a role does it play in your outlook on legal matters?

26. Should party membership/loyalty play any role in getting a party's nomination?

27. Would you recuse yourself if a campaign contributor were involved in litigation as a party or attorney before you?

28. In general, under what circumstances would you recuse yourself from a case?

29. To whom or what are judges accountable?

30. What does "independence of the judiciary" mean to you?

31. How would you define a "threat to judicial independence?" And where are these threats coming from?

32. What is the biggest misunderstanding between judges and the general public?

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Courts in general

Courts - More on: Astonishing stories of collusion between Pennsylvania's legislature and its Supreme Court

The ILB had lost track of this federal lawsuit involving Common Cause and the Pennsylvania Supreme Court, first mentioned in a Feb. 7, 2006 ILB entry. There have been other suits before Pennsylvania state courts re the now notorious "midnight pay raise" in 2005 - see for example this ILB entry from Dec. 28, 2005.

Today Shannon P. Duffy of The Legal Intelligencer has an interesting story including some of the procedural aspects of the federal lawsuit. For instance:

Litigation over the controversial July 2005 pay raise for Pennsylvania judges and lawmakers returns to court next week as a special three-judge federal appeals panel hears oral arguments on the issue of whether the process used to pass the law violated the constitutional rights of citizens.

The case, Common Cause of Pennsylvania v. Commonwealth of Pennsylvania, has already been argued before the 3rd U.S. Circuit Court of Appeals in January. But the three-judge panel later announced that the entire 3rd Circuit was recused from hearing the case because Gov. Edward G. Rendell was named as an individual defendant and his wife, Marjorie Rendell, is a 3rd Circuit judge.

As a result, the case will be reargued Oct. 22 before three visiting judges -- Joel M. Flaum of the 7th Circuit; David M. Ebel of the 10th Circuit; and Pierre N. Leval of the 2nd Circuit.

Another quote from the fascinating story:
The suit alleges that the leadership of Pennsylvania's General Assembly, together with Gov. Rendell and the former Chief Justice of Pennsylvania, Ralph J. Cappy, conspired to violate the plaintiffs' constitutional rights by passing the pay raise legislation in a manner that foreclosed public comment, full participation of all elected representatives and honest judicial review.

At the heart of the suit is an allegation that Cappy conspired with legislative leaders to pass the pay raise in the wee hours of the morning in order to avoid public scrutiny, and that Cappy secured the cooperation of the Legislature by promising to rule in its favor in two pending appeals.

U.S. District Judge Yvette Kane of the Middle District of Pennsylvania dismissed the suit in June 2006, ruling that none of the plaintiffs had standing to bring such claims and that, even if they did, the federal courts would not entertain them.

"Federal courts will not interfere with a state's distribution of power among its various branches of government," Kane wrote.

"Tempting though it may be, the court has no authority to dictate to the Pennsylvania General Assembly how that body must conduct itself when considering and enacting future state legislation, even to enter orders that would restrain Pennsylvania's elected officials from hypothetically engaging in future conduct that might violate the United States Constitution.

" Kane found that "longstanding constitutional principles absolutely forbid this court from dictating to Pennsylvania's current and future elected officials how to distribute power and responsibility for proposing or developing legislation going forward, much less to enjoin such officials from even discussing potential legislation or other matters of political business with one another in the course of fulfilling their official responsibilities."

On appeal, Rossi argues that Kane erred by failing to recognize the unique nature of the claim -- a conspiracy among all three branches of Pennsylvania's government -- and the futility of attempting to seek redress in the Pennsylvania courts.

Rossi argues in his brief that he will be able to prove the existence of the conspiracy if he is allowed discovery.

In its most explosive allegation, the suit charges that, in secret with legislative leaders, Cappy and other unnamed justices threatened that the high court would decide two pending cases against the legislature unless a bill was passed providing long-demanded funding for the state's unified judicial system.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Courts in general

Ind. Courts - Latest on Lake early voting case

We learned last evening that it would be up to the Supreme Court to name a new judge in the Lake County early votting case, after the two sides failed to agree on a judge before yesterday's 3:00 PM deadline.

Today John Byrne reports in the Gary Post-Tribune, in a long story that begins:

EAST CHICAGO -- A fifth court now will get a crack at settling Lake County's early voting fracas.

The Indiana Supreme Court announced Wednesday it will appoint a special judge to consider the partisan fight over in-person absentee balloting in Gary, Hammond and East Chicago, where 330 more people voted Wednesday.

The move came after litigants failed to agree Wednesday on a judge to replace Lake Superior Court Judge Calvin Hawkins in a hearing on a Republican motion to stop early voting in the Democratic bastions.

"The ping-pong match continues," said Gary Mayor Rudy Clay, who supports the early voting sites as a way to help people who would otherwise have a hard time getting to the polls.

The court's decision to appoint a special judge -- who could be named as soon as today -- comes after three weeks of jockeying between Republicans and Democrats over the satellite early-voting sites.

The issue grows in significance each day as presidential candidates Barack Obama and John McCain compete in a key battleground state. As the race tightens, whoever wins Northwest Indiana could very well take the state, observers say.

So, both parties have pulled out the stops over the early voting sites.

Bill Dolan has this report this mornng in the NWI Times.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Ind. Decisions - Question of whether defendant should have been granted new trial argued

The case of State of Indiana v. Shannon Hollars, argued yesterday before the Supreme Court (see ILB entry here), is the subject of a story today by Sophia Voravong of the Lafayette Journal Courier, who reports:

Shannon L. Hollars, 46, is serving a 22-year prison sentence after convictions last year in Clinton Superior Court for attempted murder and dealing marijuana. * * *

A key issue raised is whether the state erred in not providing Mohler with a diagram, completed by emergency room officials, that detailed where Hollars had been shot that morning.

"We conceded that we could have gotten it. But you have to look at the fact that the state had -- the state had it and we didn't," Mohler said in response to questioning from the justices.

"It doesn't say you only have to give what you think we may not have. That's not the way discovery is set to work."

Hollars and his wife were in bed when, about 1 a.m. on Dec. 16, 2004, the Clinton County emergency response team broke into his Frankfort home to serve a search warrant.

A jury found Hollars guilty of attempted murder for firing a shot at Byron Padgett, the Kirklin town marshal. Padgett was not injured.

Mohler contends the diagram would show that Hollars was shot in the back of his bicep -- suggesting that Hollars had his back to police when he was shot.

But Deputy Attorney General Cynthia Ploughe, who presented the case Wednesday for the state, argued that Hollars' arm was extended as though he was pointing a gun. She was accompanied during the hearing by Clinton County Prosecutor Tony Sommer.

Shortly after Hollars' four-day jury trial in March 2007, Mohler had filed a motion to correct errors based on the fact that he did not receive a copy of the medical record.

It was part of the reason why Judge Kathy Smith vacated Hollars' attempted murder conviction and granted him a new trial. In her decision, Smith also noted the late timing of when the warrant was served and that she had declined during trial to provide a defendant-proposed instruction to the jury on "specific intent."

The Indiana Court of Appeals reversed her ruling this past June.

"There was no error in discovery. ... The instruction given to the jury was perfect," Ploughe told the justices Wednesday. "The appeals court, in turn, found that these were not errors.

"They were completely consistent with Indiana law and statute."

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Reactions vary to trustee's court plan"

From the Indianapolis Star today, a long story by Cathy Kightlinger, who writes:

Lawrence Township Trustee Mike Hobbs' plan to privatize some operations of the township's small claims court -- including the clerks -- produced mixed reactions this week from at least two local officials.

He says his office has studied cost-cutting measures, and he thinks some court operations -- such as clerks, paperwork and other services -- could be privatized by selling them through an auction to a high bidder.

But the court's judge doesn't think Hobbs can legally do that, and Lawrence's mayor thinks the plan is an effort to divert attention from Hobbs' legal troubles.

The trustee's annual budget is about $14 million, and court costs account for about $362,000 of that, Hobbs said.

"If we can get a high enough bidder, it would be able to offset some of the costs of poor relief," said Hobbs, whose budget also includes township fire services and cemetery maintenance.

The small claims judge and constable -- both elected positions -- would remain, he said. * * *

Judge James A. Joven, who presides over Marion County Small Claims Court in Lawrence, doesn't think Hobbs has the authority to make those changes because Indiana law governs the court's operations.

The law separates the judicial and executive branches of government, Joven said, and Hobbs' office is part of the executive.

Mayor Paul Ricketts called Hobbs' announcement Tuesday stupid and said he thought it was an effort to divert attention from the trustee's legal troubles.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Ind. Courts - "Voters will settle contested judgeship races in Clark, Floyd and Harrison counties Nov. 4th"

Harold J. Adams of the Louisville Courier Journal reports today:

Voters will settle contested judgeship races in Clark, Floyd and Harrison counties Nov. 4, including two new courts in Floyd that will open in January.
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The circuit court race in Clark County pits Republican Abraham Navarro, appointed by Gov. Mitch Daniels in June after Judge Daniel Donahue retired, against Democrat Dan Moore, a veteran attorney.

The campaign got off to contentious start with charges and countercharges of procedural errors made by each party in the selection of the candidates and filing of papers with the state.

After a month of wrangling, the Indiana Election Commission ruled in August that, despite mistakes that could have disqualified both candidates, both would be allowed on the ballot.

Navarro had stirred controversy in his first week on the job when he fired two longtime Donahue staff members and attempted to replace them with Clark County Republican Chairman David Buskill and Jeremy Snelling, son of Republican Monty Snelling, a Clark County Council member who voted to approve the staff moves.

The council later reversed itself after the county's three other judges and Donahue, all Democrats, protested, in part because of higher pay proposed for the new hires compared to staff salaries in the other courts. Navarro subsequently withdrew the offer to Buskill and hired the younger Snelling at a lower salary.

"We've moved on" from that stumble, said Navarro, 37. "We now work in a spirit of cooperation here (with the other judges), and it's helped because I can go to the other judges … and ask for guidance." * * *

Moore, 56, also has made efficiency a key point of his campaign, saying it would be increased with ideas he's proposing for better coordination among the four courts.

"When a guy's got charges in three different courts, those charges ought to be transferred to one" court, he said.

Moore said his more than 20 years of legal experience give him an advantage over Navarro, who was admitted to the bar less than six years ago.

Superior Courts.

Experience is also a key theme in the race for the new Floyd Superior Court No. 3 between 39-year-old Democrat Maria Granger and 53-year-old Republican Richard "Rick" Fox.

Granger, a real-estate attorney and former deputy prosecutor in Clark and Floyd counties, points to her role as an appointed hearing officer handling cases of misconduct by fellow lawyers for the Indiana Supreme Court and making recommendations on disciplinary actions.

She is also a referee for family-law cases in Scott County.

"I feel like that I'm coming into this race with the real judge experience … and that does allow me to give voters confidence that I'm going to be the better choice," she said.

Fox said his 21 years of experience in family, personal injury, worker compensation, criminal and government law make him the better choice. Fox is the attorney for the Floyd County commissioners, the town of Greenville, and several other government boards and districts.

If elected, he said, "I intend to hire an attorney on staff who will be able to draft the opinions based upon my findings so that we can get decisions out to parties immediately" and maximize his courtroom time. * * *

Floyd Superior Court No. 2 is being formed by converting the present County Court that handles only low-level civil cases, criminal misdemeanors and Class D felonies to take on bigger cases.

County Court Judge Glenn Hancock, a Democrat, is facing Republican Chris Lane, a deputy Floyd County prosecutor.

In Harrison County, incumbent Superior Court Judge Roger Davis, a Democrat, is being challenged by Republican John Evans, an attorney with experience in criminal defense and government law.

Posted by Marcia Oddi on Thursday, October 16, 2008
Posted to Indiana Courts

Wednesday, October 15, 2008

Ind. Courts - Update on: New judge sought in Lake early voting case

Updating this ILB entry from earlier this afternoon; the 3 p.m. deadline in the Lake County case of Curley v. Lake Superior Court. has come and gone. The attorneys in the matter have informed the Supreme Court a special judge was not selected, according to information the ILB has received.

The Supreme Court has the authority to appoint a special judge in the case and the Court will do so through an order.

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Travelers Casualty and Surety Co. v. United States Filter Corp., et al, a 13-page, 4-0 opinion, Chief Justice Shepard writes:

Five corporations seek insurance coverage from insurers who issued liability policies for their predecessors. The underlying litigation involves bodily injury claims relating to the operation of an industrial blast machine. The corporations say that coverage rights passed to them through the same corporate transactions that brought them the blast machine assets. The trial court agreed and granted summary judgment to the current holder of the assets.

Each of the implicated insurance policies contains a provision that bars assignment of the policy without the consent of the insurer. We hold that consent is required for any assignment of policy rights, unless the assignment occurs after an identifiable loss, in which case the right to receive payment on that claim may be transferred without consent. Because the corporations neither obtained consent nor made a post-loss assignment, we direct judgment for the insurers. * * *

Conclusion. We reverse the trial court’s summary judgment determination and direct entry of judgment for the Insurers on the issues at contest in the present appeal.

For background, see this ILB entry from Oct. 10, headed "Supreme Court orders hundreds of pages of sealed documents in a pending case to be open and available for public inspection."

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court granted one transfer last week

The formal transfer list will not be out until next Monday, but the ILB has just received notice that the case of Maggie Bush and Leonard Bush v. State Farm Mutual Automobile Insurance Company was granted transfer last Thursday, Oct. 9. (It did not make the transfer list issued yesterday.)

See the ILB summary from March 20th (13th case), where the majority opinion's conclusion begins: "In the present case, we conclude that the language in State Farm’s policy, which purports to limit recovery of uninsured motorist benefits only to situations where the insured sustains bodily injury, violates Indiana’s uninsured motorist statute."

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Indiana Transfer Lists

Ind. Courts - New judge sought in Lake early voting case

Updating this ILB entry from this morning, John Byrne of the Gary Post-Tribune reports:

A change of judge has been requested in the ongoing legal battle over early voting sites in Lake County.

Attorney James Wieser, representing labor unions, the NAACP and other defendants in a case pending before Lake Superior Judge Calvin Hawkins, filed a motion Wednesday that Hawkins be replaced.

In an order Tuesday night sending the case back to Hawkins' court, the Indiana Supreme Court gave parties in the case until 10 a.m. today to file for a change of judge.

Bill Dolan of the NWI Times writes:
The Indiana Supreme Court refused Tuesday night to hear a lawsuit by Republicans to have the early voting centers in those three cities deemed illegal. The high court returned the case to Lake Superior Court Judge Calvin Hawkins in East Chicago.

Hawkins said Wednesday morning Democrats asked for the case to be moved to another court. Hawkins has named a panel of three judges, one of whom could take up the case. They are Superior Court Judges William Davis, Gerald Svetanoff and Diane Schneider-Kavadias.

Democrats have until 3 p.m. today to strike one of those three names, and then Republicans can strike another unless the two parties can decide mutually agree on another judge.

It remained unclear when a new judge would be picked, and whether that judge would stop early in-person voting as Republicans demand.

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 18 NFP)

For publication opinions today (5):

In William H. Hart v. Walter C. Webster, and The Steak-N-Shake Co. , a 10-page opinion, Judge Riley writes:

Appellant-Plaintiff, William H. Hart (Hart), appeals the trial court’s dismissal of his claims for defamation and invasion of privacy against Appellees-Defendants, Walter C. Webster (Webster) and The Steak-n-Shake Company (SNS) (collectively, Defendants). We reverse and remand.

ISSUE Hart presents several issues for our review, which we restate as the following single issue: Whether the trial court erred in determining that it lacked subject matter jurisdiction over Hart’s claims. * * *

CONCLUSION Based on the foregoing, we conclude that the trial court properly dismissed Hart’s original Complaint and his Amended Complaint for lack of subject matter jurisdiction. However, to the extent that the trial court dismissed Hart’s Second Amended Complaint, it did so in error. Therefore, we remand this cause to the trial court for further proceedings on Hart’s Second Amended Complaint.

Vanessa L. Robinson v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to prove beyond a reasonable doubt that Robinson committed neglect of a dependent, as a Class A felony. We also conclude that the trial court did not abuse its discretion when sentencing Robinson, and her sentence is not inappropriate. Affirmed."

Dana Roberts v. State of Indiana - "The failure of a juror to disclose her prior knowledge of Roberts did not amount to juror misconduct. The trial court did not abuse its discretion in admitting certain evidence. The prosecutor approaching a witness on the stand was not reversible error. The trial court properly declined to instruct the jury on involuntary manslaughter. There is sufficient evidence to support Roberts’s murder conviction. Roberts has not established that he received ineffective assistance of counsel. Finally, Roberts’s sentence is appropriate. We affirm."

David Baker v. State of Indiana - "We find no reason to stray from the well-established precedent that a defendant’s probationary period begins immediately after sentencing. Baker was initially sentenced on January 3, 2008. That same day he was provided a copy of the written terms and conditions of his probation, which he signed. Six days later he committed criminal battery. This was a violation of the terms and conditions of his probation, and the trial court was well within its discretion and did not err when it revoked Baker’s probation and ordered that he serve the two-year suspended sentence. Affirmed."

Rockie L. Jernigan v. State of Indiana - "Rockie L. Jernigan (“Jernigan”) appeals the order of the Delaware Circuit Court denying his “Motion for Earned, Good Time Credit.” Concluding that the trial court lacked jurisdiction to rule on Jernigan’s motion, we dismiss. * * *

"Although not raised by either party, we conclude that the trial court did not have jurisdiction to rule on the motion from which Jernigan now appeals. Subject matter jurisdiction cannot be waived, and courts at all levels are required to consider the issue sua sponte. Watkins v. State, 869 N.E.2d 497, 499 (Ind. Ct. App. 2007). * * *

"We therefore conclude that the trial court, after the trial court clerk issued its Notice of Completion of Clerk’s Record, was without jurisdiction to rule on any motion attacking the sentencing order. The trial court’s ruling on Jernigan’s Motion for Earned, Good Time Credit is therefore void. See Clerk, 727 N.E.2d at 20. Because Jernigan’s current appeal is from a void order, we hereby set aside that order and dismiss the current appeal. See Watkins, 869 N.E.2d at 500. Dismissed."

NFP civil opinions today (4):

Charles E. Justise, Sr. v. Nextel West Corp. d/b/a Nextel Communications (NFP) - "In light of those admissions, Justise’s allegations to the contrary in his complaint cannot stand. Hence, we must affirm the trial court’s grant of summary judgment in favor of Nextel.

"Finally, we address briefly Justise’s assertion that “[i]n federal litigation, court grants [sic] pro se litigants wide latitude in the handling of their lawsuits. There should be, and possibly is, a similar standard in State Courts.” Appellant’s Brief at 8. In Indiana, “[i]t is well settled that pro se litigants are held to the same standard as licensed lawyers.” Novatny v. Novatny, 872 N.E.2d 673, 677 n.3 (Ind. Ct. App. 2007). We see no reason to ignore that standard here. Affirmed."

In the Matter of M.H., J.H., and J.H. v. Marion Co. Dept. of Child Svcs. (NFP) - "Marquise Hornes (“Mother”) appeals the juvenile court’s determination that her minor children M.H., J.H., and Jaq.H. are children in need of services (“CHINS”). Mother presents a single issue for our review on appeal, namely, whether the evidence is sufficient to support the CHINS determinations. We affirm in part and reverse in part."

In the Matter of S.T. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "Amanda Ryan (“Mother”) appeals the trial court’s determination that her daughter, S.T., is a Child in Need of Services (“CHINS”). On appeal, she argues that she was denied due process when the trial court proceeded with the CHINS matter without the appointment of a Guardian ad Litem (“GAL”) for S.T. and that the evidence is insufficient to support the trial court’s determination. Finding that Mother waived her due process argument and that the evidence is sufficient, we affirm."

Neil K. Grove v. Vicki J. Grove (NFP) - "Neil Grove (“Neil”) appeals the trial court’s property disposition order arising from the dissolution of his marriage to Vicki Grove (“Vicki”). We affirm."

NFP criminal opinions today (14):

State of Indiana v. Damon M. Johnson (NFP)

Michael Mitchell v. State of Indiana (NFP)

Michelle R. Brown v. State of Indiana (NFP)

Frank D. Pangallo v. State of Indiana (NFP)

Vincent Angotti v. State of Indiana (NFP)

Melvin Flenoy III v. State of Indiana (NFP)

Daniel Lamar Fisher v. State of Indiana (NFP)

Johnny L. Braster, Sr. v. State of Indiana (NFP)

Laurie Overton v. State of Indiana (NFP)

James Slack, Jr. v. State of Indiana (NFP)

Robert Bratton v. State of Indiana (NFP)

Abundio Ramirez v. State of Indiana (NFP)

Bradley E. Kukman v. State of Indiana (NFP)

Gayle L. Barden v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Ind. App.Ct. Decisions

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

In Chaudhry v. Nucor Steel (SD Ind., Judge McKinney), a 12-page opinion, Judge Williams writes:

Subhash C. Chaudhry sued his employer, Nucor Steel-Indiana, alleging that Nucor discriminated against him in violation of Title VII of the Civil Rights Act of 1964 when it failed to give him a raise in June 2003 and denied him the opportunity to visit customers, which would have qualified him for increased compensation. The district court granted Nucor’s motion to dismiss, relying on Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) to hold that Chaudhry’s discrimination claim was untimely, and then terminated the case on the same day.

Because Chaudhry failed to file a timely EEOC charge regarding Nucor’s failure to give him a raise in June 2003, we conclude that the district court properly granted Nucor’s motion to dismiss that claim as well as any claims arising from that 2003 decision that do not involve discrete acts of discrimination. But we also determine that Nucor’s failure to inform Chaudhry of opportunities to visit customers, which effectively prevented him from qualifying for an annual raise, constitutes a distinct discriminatory act that is not time barred. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. * * *

For the reasons stated above, we AFFIRM the district court’s dismissal of claims arising from Nucor’s June 2003 decision not to give Chaudhry a raise but REVERSE the district court’s dismissal of Chaudhry’s claims regarding Nucor’s failure to notify him of opportunities to visit customers. The case is REMANDED for proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Judges receive 'yes' votes from bar members"

The ISBA has just issued this press release:

INDIANAPOLIS (Oct. 15, 2008) -- The Indiana State Bar Association (ISBA) has completed its compilation of the 2008 Judicial Retention Poll responses. Results indicate overwhelming support, by ISBA members, of the three Indiana Supreme Court justices, one Indiana Court of Appeals judge and the Indiana Tax Court judge seeking retention.

For the first time, ISBA members were surveyed electronically. Of the 8,058 members polled, nearly 1,500 cast ballots. "An 18.5 percent response rate is terrific when one considers that relatively few attorneys have direct contact with the appellate courts, other than to read their opinions," observes ISBA President R. William Jonas Jr. of South Bend. "Armed with these results and the valuable information at the Indiana Courts retention Web site (http://www.state.in.us/judiciary/retention), the citizens of Indiana can and will make an informed decision on Election Day."

The yes/no retention results are as follows:

Chief Justice Randall T. Shepard: Y-83.3%; N-16.7%; 1,489 votes cast

Justice Theodore R. Boehm: Y-90.3%; N-9.7%; 1,416 votes cast

Justice Brent E. Dickson:
Y-88.6%; N-11.4%; 1,401 votes cast

Judge Carr L. Darden:
Y-87.2%; N-12.8%; 1,332 votes cast

Judge Thomas G. Fisher:
Y-88.0%; N-12.0%; 1,332 votes cast

Appellate court judges face an approval vote in the first general election that occurs at least two years after their appointment, and every 10 years thereafter. Indiana voters will have an opportunity to cast their ballot concerning the judges' retention on Nov. 4.

Compare these results against the results of 2006 poll, when paper ballots were mailed out.

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Indiana Courts | Judicial Retention

Ind. Courts - Albion attorney faces theft charges

Len Wells reports today in the Evansville Courier & Press in a story that begins:

An Albion attorney who also serves as the public defender for Wabash County has been arrested on charges he stole thousands of dollars from a client.
[Update 9:11 AM] Well, a reader writes that this is Albion, ILLINOIS. Sorry.

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Indiana Courts

Ind. Courts - "Testimony shows paper trail leads nowhere in DTF seizures"

Updating the Oct. 13th ILB entry, Rick Yencer's Muncie Star-Press story today begins:

Muncie police routinely disposed of money and guns seized from criminal defendants by using abandoned property affidavits, without a court order and in apparent violation of state law requiring those assets to go to the county general fund.
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"It looks like one hand does not know what the other hand is doing," Delaware Circuit Court 2 Judge Richard Dailey said Tuesday as he described how city police took the money and had the city controller deposit it in Muncie police and Muncie-Delaware County Drug Task Force accounts.

Dailey resumed hearings on drug forfeiture and abandoned property on Tuesday, reviewing more than a dozen cases out of nearly 40 where as much as $68,000 was diverted to police agencies from civil forfeitures and then abandoned property affidavits.

The money was then spent on such items as donations to sports teams whose members include police officers' children to a big screen television and other equipment for the Muncie Police Department gym.

During five hours of testimony, Dailey heard accounts of records of forfeited and abandoned property being routinely destroyed, with no paper trail between the seizure of spending of assets by city police and the DTF.

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Indiana Courts

Ind. Courts - Supreme Court rules in Lake County early voting dispute [Updated]

A story in the Chicago Tribune today contains this quote:

The Indiana Supreme Court is expected to rule in the coming days on which judge has jurisdiction over the case.
Well, the Supreme Court acted last evening, at 8:20 PM, issuing an Order in the case of Curley v. Lake Superior Court. Access it here.

In the order the Court writes:

Indiana Trial Procedure Rule 42(D) was designed to resolve conflicts that arise "[wlhen civil actions involving a common question of law or fact are pending in different
courts." * * *

Of course, this is not the ordinary course but the principles of this rule - basically, first in time - dictate what we believe to be the most orderly approach. Therefore, we order that the Circuit Court Case be, and hereby is, consolidated with the Superior Court Case in Superior Court and both matters shall proceed before the Superior Court on a consolidated basis. The October 14 preliminary injunction entered by the Circuit Court shall remain in effect pending action, if any, by the Superior Court. This Court expresses no opinion on the merits of any of the issues raised by the parties, including such matters as the validity of the October 14 preliminary injunction, the jurisdiction of the Superior Court over appeals of decisions of thc Board, the applicability of the unanimity requirement of 1C 3-11-10-26.3, and various constitutional issues.

We note that the parties retain their rights under Trial Rule 76 to a change of judge. Given the need for pronlpt resolution of the issues presented in this case, the following special procedures shall be followed: * * *

The Order (7 pages in all) is signed by Chief Justice Shepard, Dickson and Sullivan, JJ., concur. Boehm, J., concurs in result., Rucker, J., dissents. Some quotes from Justice Rucker's dissent:
I dissent. With the order entered today the majority does something quite unusual and rather remarkable. Specifically it grants relief the parties themselves do not request and does not at all niention the only issue that is properly before us. * * *

It is important to note that Relators have not asked this court for an order consolidating these two cases. More precisely, no petition for writ of mandamus or prohibition has been requested on these grounds. As things now stand the trial court that the majority says should hear this matter, is the same trial court that previously entered a temporary restraining order, which was later vacated by a Federal District Court, prohibiting the Lake County Board of Elections fiom establishing satellite voting offices. By entering its order sua sponte, the majority has foreclosed the opportunity of proper briefing on whether Realtors are even entitled to consolidation and if so which court should assume jurisdiction. I am not at all certain that Judge Arredondo has a "clear, absolute, and imperative duty imposed by law" City of South Bend, supra, to grant a Trial Rule 42(D) motion to consolidate. The issue has not been presented to this Court.

I would simply deny the issuance of the writ thus allowing to stand Judge Arredondo's restraining order permitting the existence of satellite voting offices. Any issues concerning consolidation may then be presented to the appropriate court or courts for resolution.

[More] The AP has a story on the Order this morning. Some quotes:
GARY, Ind. -- The Indiana Supreme Court stepped into a court fight over satellite voting sites in Lake County on Tuesday night, saying the dispute should be settled in the county's Superior Court.

The high court also ruled that an injunction opening early voting centers in largely Democratic Gary, Hammond and East Chicago would remain in effect, pending further action by the Superior Court. * * *

The state Supreme Court was asked to intervene after the conflict arose between the two local courts. The high court ordered the cases consolidated in Lake Superior Court, where the first case was filed.

The 4-1 ruling capped a dizzying day in the county that is considered key to Democrat Barack Obama's chances of winning Indiana's electoral votes over Republican John McCain. Republican members of Lake County's election board had opposed the satellite centers, saying they would increase the chance of voting fraud.

Arredondo sided with Democrats and two unions on Tuesday in ordering the early voting sites opened in the three urban centers. Early voting is already available in the county seat of Crown Point, more than 10 miles away.

Hawkins, appointed to the bench by Republican Gov. Mitch Daniels, later issued an order saying that Arredondo's ruling was premature because the case had been taken to the state Supreme Court. The high court ruling was handed down just a few hours later in Indianapolis.

[Still more] Here are today's stories from the NWI Times, and the Gary Post-Tribune - both papers have long recaps of yesterday's events. From the Times story:
Republicans said they would file a new lawsuit before the Indiana Supreme Court in an effort to overturn the satellite early voting.

The Indiana Supreme Court stepped into the court fight Tuesday night, saying the dispute should be settled in the county's Superior Court.

The high court also ruled that an injunction opening the early voting centers in largely Democratic Gary, Hammond and East Chicago would remain in effect pending further action by the Superior Court.

From the P-T:
Indiana's Supreme Court stepped into fight Tuesday night, saying the dispute should be settled in the county's Superior Court. The high court also ruled that the injunction opening the early voting centers would remain in effect pending further action by the Superior Court.
[Updated 11:25 AM] The Court has corrected the Order and I have replaced the version originally linked with the corrected version. What were the corrections? On p. 4, in the first full paragraph, the phrase "(3) if special judges are chosen" is replaced with "(3) if no special judge is chosen". Also, I'm told "a typo omitting "NO or NOT" has been corrected on page 4."

Posted by Marcia Oddi on Wednesday, October 15, 2008
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 14, 2008

Ind. Courts - "Lake Superior Court Judge Calvin Hawkins late today ruled that the early voting in Lake County's northern cities - Gary, Hammond and East Chicago - should continue"

Updating this entry from earlier this afternoon (one of several today), John Byrne reports on the Gary Post-Tribune in a story posted late today that begins:

Lake Superior Court Judge Calvin Hawkins late today ruled that the early voting in Lake County's northern cities - Gary, Hammond and East Chicago - should continue.

"For me to enter a (temporary restraining order) at this time, which I believe this court can do, would create even more chaos," Hawkins said.

Hawkins said he had grave concerns about the way the Lake County Election Board conducts elections, but said he did not believe that concern legitimatized disenfranchising legitimate voters.

And this from Bill Dolan's (NWI Times) most recent update:
Lake County Superior Court Judge Calvin Hawkins on Tuesday refused a request by Republicans' lawyers to stop early in-person voting until the Indiana Supreme Court hears the matter in the coming days.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Update on: Judge Arredondo orders early voting locations to open [Updated]

Updating the reports from this morning, Josh Kalven of Progress Illinois reports:

The dispute over early voting in Lake County, IN came to a head this morning, as Lake County Circuit Court Judge Lorenzo Arredondo ordered in-person absentee voting centers in Gary, Hammond, and East Chicago to open immediately. Around noon, two voting machines en route from Crown Point (the county seat) arrived at the courthouse in Gary, where residents and local media outlets had already congregated in anticipation. Just before 1 p.m., State Sen. Earline Rogers (right) cast the first vote. The line of 20 to 30 waiting outside the clerk's office burst into applause when she emerged.

At the time Rogers turned in her ballot, election officials were reportedly setting up machines in Hammond and East Chicago as well.

More details just posted by Bill Dolan of the NWI Times:
GARY | U.S. Rep. Pete Visclosky hopes to be among the first to cast an early vote in this year’s election Tuesday afternoon in Gary.

Visclosky, D-Merrillville, is scheduled to vote at the Lake Superior Court building at 15 W. 4th Ave., in Gary, hours after Lake County Circuit Court Judge Lorenzo Arredondo ordered centers in Gary, Hammond and East Chicago to be reopened Tuesday morning, giving Democrats, the NAACP and the United Steelworkers union at least a short-term victory.

The Times story includes a link to Judge Lorenzo Arredondo's 6-page Order Granting Plaintiffs' Motion for Preliminary Injunction. A quote:
15. There is a substantial likelihood that the failure to provide access to early voting to Gary, Hammond, and East Chicago violates Article 2, Section 1 of the Indiana Constitution for the following reasons, among others, alone and in combination: It is unconstitutional to provide access to early voting to residents of the small community of Crown Point and not provide it to Lake County's major population centers in Gary, Hammond, and East Chicago; there is no reasonable justification for a change in election procedure from the primary election in May 2008 when there was early voting in Gary, Hammond, and East Chicago; and the failure to provide early voting in Gary, Hammond, and East Chicago would create a significant racial disparity in access to early voting.

16. The equities weight heavily in favor of a preliminary injunction. Plaintiffs' fundamental right to vote is threatened absent an injunction, and this injury would be irreparable. On the other side of the scale, there is no injury from allowing early voting to proceed in Gary, Hammond, and East Chicago. Moreover, the public interest weights heavily in favor of permitting early voting.

[Updated at 5:27 PM] Watch the Chicago ABC 7 report by Ben Bradley, who is awaiting the second opinion of the day - that would be Judge Hawkins.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Ind. Decisions - Transfer list for week ending Oct. 10, 2008

Here is the just issued transfer list for the week ending Oct. 10, 2008. It is 2 pages long.

No transfers were granted last week.

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, October 14, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)

For publication opinions today (0):

NFP civil opinions today (5):

Joseph T. Williams-Bey v. Edward Buss, et al. (NFP) - "Williams-Bey’s brief fails to comply with the Indiana Rules of Appellate Procedure. See Ind. Appellate Rule 46(A). Specifically, his brief does not set forth the facts that led to the trial court’s denial of his petition, provides no standard of review, cites to no authority and fails to make a cogent argument. 'Dismissal or summary affirmance is warranted in cases where a party to an appeal commits a flagrant violation of the rules.'" Affirmed.

Valarie L. Parkes v. William R. Parkes (NFP) - "Based on the foregoing, we conclude that the trial court properly denied Mother’s petition to modify custody. Affirmed."

In Re: The Termination of the Parent-Child Relationship of A.J.S. (NFP) - "A trial court need not wait until a child is “irreversibly influenced” such that her physical, mental, and social growth is permanently impaired before terminating the parent-child relationship. A.F. v. Marion County Office of Family & Children, 762 N.E.2d 1244, 1253 (Ind. Ct. App. 2002). In the present case, a thorough review of the record reveals that the trial court’s decision to terminate Father’s parental rights to A.J.S. was not improperly based on Father’s low I.Q. Rather, clear and convincing evidence indicates there is a reasonable probability the conditions resulting in A.J.S.’s removal, namely, Father’s inability to provide A.J.S. with a safe and stable home environment, will not be remedied. Accordingly, we affirm the judgment."

Donald Frazier v. Palisades Acquisition XVI, LLC (NFP) - "“A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of Final Judgment. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion . . . .” Ind. Appellate Rule 9(A)(1). Frazier did not file a proper notice of appeal within thirty days of the trial court’s March 6, 2007 default judgment or the August 20, 2007 order; nor did he file a timely motion to correct error to extend the time for an appeal."

Donald Frazier v. Midland Credit Management, Inc. (NFP) - "“The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal.” Trinity Baptist Church v. Howard, 869 N.E.2d 1225, 1227 (Ind. Ct. App. 2007), trans. denied; App. R. 9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited . . . .”). Frazier’s right to appeal has been forfeited."

NFP criminal opinions today (7):

Gary K. Paul v. State of Indiana (NFP)

Alec Clark v. State of Indiana (NFP)

Victoria Morgan v. State of Indiana (NFP)

Samuel Darnell Banks v. State of Indiana (NFP)

Andrew Germany v. State of Indiana (NFP)

Jeff House v. State of Indiana (NFP)

Randy Slye v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues two today

In U.S. v. Jackson (ND Ind., CJ Miller), a 38-page opinion, Judges Rovner writes:

Defendants-appellants Essie Jackson and Joe Jackson were convicted of mail fraud and conspiring to commit mail fraud along with their codefendant, Angela Blackwell Jackson, who is not a party to this appeal. They appeal their convictions on a variety of grounds. Finding no merit in any of their challenges, we affirm.
Inside Higher Ed termed this next case "A complicated legal dispute involving separation of church and state, management of federal grants, and the right to sue" when it was pending before the SCOTUS in 2007 -- see 7/2/07 ILB entry here.

In Laskowski v. Spellings and Notre Dame (SD Ind., Judge McKinney), a 12-page opinion, Judge stykes writes:

This case returns to us following the Supreme Court’s order granting certiorari, vacating our prior judgment, and remanding for further consideration in light of Hein v. Freedom from Religion Foundation, Inc., 551 U.S. ___, 127 S. Ct. 2553 (2007). Univ. of Notre Dame v. Laskowski, 127 S. Ct. 3051 (2007). The issue is whether the plaintiff-taxpayers have standing under Flast v. Cohen, 392 U.S. 83 (1968), to maintain an Establishment Clause challenge to a congressional grant after the funds have been fully paid and the grant has expired. * * *

The import of the plurality opinion is that the reach of Flast is now strictly confined to the result in Flast. And the result in Flast was that the taxpayers had standing to seek an injunction to halt a specific congressional appropriation alleged to violate the Establishment Clause.

Accordingly, we read Hein to mean that taxpayers continue to have standing to sue for injunctive relief against specific congressional appropriations alleged to violate the Establishment Clause, but that is all. Permitting a taxpayer to proceed against a private grant recipient for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case would extend the Flast exception beyond the limits of the result in Flast. After Hein, such an extension is unwarranted. * * *

The only form of relief the taxpayers here had standing to seek—an injunction against the Secretary’s disbursement of the allegedly unconstitutional grant—is no longer available because the grant was not a continuing one and it expired while the suit was pending in the district court. That claim is moot, and there is no residual standing to pursue a claim for restitutionary relief against Notre Dame, a private party, for reimbursement of the Treasury. The district court properly dismissed this case as moot. AFFIRMED.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Judge Arredondo orders early voting locations to open

Updating this ILB entry from early this morning about the dueling county courts, the first one convened this morning. From a report by Bill Dolan of the NWI Times:

CROWN POINT | Lake Circuit Court Judge Lorenzo Arredondo on Tuesday morning ordered election officials immediately to open early voting centers in Gary, Hammond and East Chicago, giving Democrats, the NAACP and the United Steelworkers union at least a short-term victory.

Lake County Elections Board Director Sally LaSota said she would open early in-person voting in the county courthouses at 15 W. 4th Ave., Gary; 232 Russell St., Hammond; and 3711 Main St., East Chicago, sometime after 10:30 a.m. Tuesday.

Arredondo ruled it is unfair to bar early voting centers in the county's largest cities. He agreed with Democratic arguments that early voting was essential to avoid long lines expected on Election Day.

Arredondo's ruling follows a Hammond federal court decision to leave the early voting question up the county courts.

Meanwhile, Lake Superior Court Judge Calvin Hawkins has scheduled his own court hearing on the matter for 1 p.m. Tuesday. He could either agree with Arredondo's decision or rule early voting centers to be illegal -- as he did last week.

Conflicting court rulings would appear to ensure a Supreme Court hearing in the coming days.

Karl Mulvaney, a lawyer for Republicans, said he will ask the Indiana Supreme Court on Tuesday to close down any satellite voting centers. Republicans claim the opening of such early voting centers require unanimous bipartisan support of county election boards. The Lake County elections board voted to open the early locations even though two Republican members of the boards dissented.

Check back this afternoon for more.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Five state-appointed jurists face retention vote Nov. 4"

Niki Kelly of the Fort Wayne Journal Gazette has a story today on the state judges up for retention by the voters on Nov. 4:

Hoosier voters get their chance next month to retain or reject three justices of the Indiana Supreme Court, an Appeals Court jurist and the Tax Court judge who changed Indiana’s property tax landscape forever.

Indiana uses a merit selection system in which a judicial nominating commission narrows the candidates for a judicial opening and the governor appoints the justice from a list forwarded to him by the commission.

But those judges face a retention vote by the electorate at the first statewide general election after the judge or justice has served two full years and every 10 years after that.

The Indiana Supreme Court has developed a Web site to educate voters about the judges up for retention, including links to their opinions. That link is www.in.gov/judiciary/retention.

Here is information on the five justices and judges up for retention this year:

  • Chief Justice Randall T. Shepard of Evansville was appointed to the Indiana Supreme Court by Gov. Robert D. Orr in 1985 at age 38. He became chief justice of Indiana in March 1987.

    A seventh-generation Hoosier, Shepard graduated from Princeton University cum laude and from Yale Law School.

    Shepard recently wrote the majority opinion finding that a university professor whose contract was not renewed was eligible for unemployment compensation and that police officers in Indianapolis had the authority to make arrests despite not being re-sworn when the Indianapolis Police Department and the Marion County Sheriff’s Department merged.

  • Justice Brent E. Dickson was appointed to the Indiana Supreme Court in January 1986 by Orr after 17 years as a general practice lawyer in Lafayette.

    Born in Gary, he earned a bachelor’s degree from Purdue University in 1964 and his law degree from Indiana University School of Law at Indianapolis in 1968.

    Dickson recently wrote the majority opinion clearing a former Steuben County township trustee of liability in a case where the deputy trustee – her husband – sexually assaulted a person seeking assistance.

  • Justice Theodore R. Boehm was appointed to the Supreme Court by Gov. Evan Bayh in 1996. He served as a law clerk during the 1963 term of the U.S. Supreme Court, and then joined the Indianapolis law firm of Baker & Daniels where he became a partner in 1970 and managing partner in 1980.

    Boehm recently wrote the majority opinions allowing cities to transfer a tenant’s delinquent sewer fees to the owner of the property and protecting several area students from a professor’s libel lawsuit after they reported him under the university’s anti-harassment policy.

  • Judge Carr L. Darden was named to the Indiana Court of Appeals by Bayh in October 1994 and was retained on the court by election in 1998. He currently serves as presiding judge of the court’s Fourth District.

    Prior to his appointment, he served as a presiding judge in the Marion County Superior Court and the Marion County Municipal Court systems. He also served as the chief deputy state public defender.

  • Judge Thomas G. Fisher was appointed judge of the Indiana Tax Court in 1986 by Orr. He previously served as Jasper County prosecutor and also maintained a private law practice in Remington for 21 years.

    His most famous ruling came in 1996 when he declared Indiana’s system of assessing property for tax purposes unconstitutional. As a result, Indiana adopted fair-market value standards, which have increased property taxes substantially for many older homes throughout the state.

    Indiana is still struggling with the new system as lawmakers passed a major property tax package earlier this year.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Indiana Courts | Judicial Retention

Ind. Courts - Yet more on Rockies Express Pipeline suing Indiana counties

On Sept. 14 the ILB posted an entry that began:

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).

Monday Jason Thomas of the Indianapolis Star had a lengthy story about the pipeline that made no mention of the litigation. Today the AP has a story, apparently based on the Star story.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Indiana Courts

Ind. Courts - Delaware Circuit Court 3 judgeship on ballot

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

Veteran Democratic Muncie City Court Judge Linda Wolf talks about her 29 years of experience in law and on the bench while Republican lawyer Mark Delgado counts on voters wanting new faces in the criminal justice system in the race for the open Delaware Circuit Court 3 judgeship on
Nov. 4.

That bench, originally Superior Court 1, has been held for the last 30 years by retiring Democratic Judge Robert Barnet Jr., who at age 32, was among the youngest elected judges in county history.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Indiana Courts

Ind. Courts - Senior Judge Jonathan J. Robertson has died

Senior Judge Jonathan J. Robertson died yesterday at the age of 76. The message came accompanied by this note:

Judge Robertson was a friend to those of us who ever practiced in Jackson County, a wise jurist, and a tireless worker both on the Jackson County bench and the Indiana Court of Appeals. He will be sorely missed.
The tentative plans are as follows: Calling will be Friday afternoon and evening, October 17, 2008, at the Spurgeon Funeral Home in Brownstown, Indiana. The funeral will be Saturday, October 18th. All times TBA.

See Judge Robertson's biography here.

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Indiana Courts

Ind. Decisions - More on status of remote voting sites at issue in Lake County

Updating this ILB entry from late yesterday afternoon, Bill Dolan has updated his story in the NWI Times:

Monday's federal court ruling may set the stage for dueling state court decisions.

Lake County Superior Court Judge Calvin Hawkins has scheduled a new hearing on the matter for 1 p.m. today in his East Chicago courtroom to decide the next step. Last week, Hawkins blocked the satellite centers from opening after county Republicans sought a restraining order.

Lake County Circuit Court Judge Lorenzo Arredondo will have a separate hearing on the issue at 9 a.m. in his courtroom. Last week, Arredondo ordered the satellite centers to open.

Lawyers for Democratic elections board members -- who advocate the early voting sites -- said last week they were prepared to take any conflicting state court orders to the Indiana Supreme Court for a quick final ruling on the matter.

Republican County Chairman John Curley said he is prepared to put the case in Hawkins' hands. He said he hoped Judge Arredondo would not overrule Hawkins without giving Republicans a chance to present their case.

Gary Mayor Rudy Clay, who also is the Lake County Democratic chairman, considered the ruling an apparent defeat Monday for his efforts to open early voting in the county's largest cities and vowed to organize an armada of buses and cars to move north county voters to the county elections board office in Crown Point. The offices is the only early voting location that remains open.

John Byrne reports today in the Gary Post-Tribune:
It's back to the state courts for the increasingly Byzantine legal fight over early voting sites in Gary, Hammond and East Chicago.

U.S. District Court Judge Joseph Van Bokkelen decided Monday he has no jurisdiction to settle the partisan bickering about whether to allow satellite vote centers in the three cities.

Van Bokkelen remanded the case to Lake Superior Court Judge Calvin Hawkins, who ruled Oct. 3 on behalf of Republicans by temporarily stopping early voting in the Democratic strongholds.

But before the parties appear in front of Hawkins at 1 p.m. today, another group of plaintiffs will take their case in favor of opening the satellites to Lake County Circuit Judge Lorenzo Arredondo.

Arredondo has ruled once in favor of the Democrats, ordering Oct. 6 that the Gary, Hammond and East Chicago polling places be opened immediately.

Plaintiffs in the Circuit Court case, including the Indiana NAACP and several trade unions, will now ask Arredondo to issue a permanent order to open the offices.

The Election Board intends to act immediately based on Arrendondo's ruling today, according to Lake County Clerk Thomas Philpot.

This sets up the possibility of the satellite voting offices being open before the case even gets to Hawkins if Arredondo rules in favor of the Democrats.

Because of the dueling court cases, state NAACP President Barbara Bolling said she wouldn't be surprised if the issue ends up in the Indiana Supreme Court.

Any legal delay will, in effect, disenfranchise north Lake County voters, according to county Democratic Chairman Rudy Clay, who favors opening the northern voting offices.

"This is like a tennis ball bouncing back and forth, but meanwhile time marches on," Clay said. "We need to make sure voters know they can cast early ballots right now in Crown Point, and take advantage of it."

Posted by Marcia Oddi on Tuesday, October 14, 2008
Posted to Ind Fed D.Ct. Decisions

Monday, October 13, 2008

Ind. Decisions - Status of: Remote voting sites at issue in Lake County [Updated]

Updating the most recent ILB entry, from Saturday, where U.S. District Court Judge Joseph Van Bokkelen was quoted by two papers as "promising to announce his decision Monday, so the voting sites could open Tuesday if he does not grant the restraining order," a just-posted "Breaking News" report on the Gary Post-Tribune website states:

Federal Judge Joseph Van Bokkelen ruled this afternoon that he does not have jurisdiction to decide over request by Lake County Republicans that he stop satellite voting centers from opening in Gary, Hammond and East Chicago. He ordered it remanded to Lake Superior Court, where Judge Calvin Hawkins initially granted the Republican Party's temporary restraining order Oct. 3.
It looks to the ILB like this entry from Oct. 7 (without the federal court) gives a good description of the current status.

[Update at 4:23 PM] Bill Dolan of the NWI Times has a comprehensive story here. Some quotes:

HAMMOND | A federal judge has transferred a decision on whether to open early voting centers in Gary, Hammond and East Chicago back to Lake Superior Court.

U.S. District Court Judge Joseph Van Bokkelen ruled Monday county judges should decide whether an Indiana law requiring unanimous bipartisan support of a county's elections board to open multiple locations for voting before the Nov. 4 general election violates the Indiana Constitution.

The Lake County elections board has voted by majority to open the early centers. However, the vote was not unanimous, with both GOP elections board members dissenting.

It was unclear Monday whether elections board Director Sally LaSota would open early voting centers tomorrow in the county courthouses at 15 W. 4th Ave., Gary; 232 Russell St., Hammond; and 3711 Main St., East Chicago.

Superior Court Judge Calvin Hawkins ordered early polling at those locations halted last week under a temporary restraining order requested by county Republicans. Lake Circuit Court Judge Lorenzo Arredondo ruled separately to open the centers. Meanwhile, Lake County Democrats, who advocate opening the early voting centers, took the case to Van Bokkelen's federal court in Hammond.

Following Van Bokkelen's ruling Monday, Hawkins set a new hearing date for 1 p.m. Tuesday in his East Chicago courtroom.

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Courts | Indiana Decisions | Indiana Government

Ind. Decisions - More on: Upcoming oral arguments this week

Updating this ILB entry from earlier this morning, the IU News Room has now posted a release on the Supreme Court oral argument in the case of Stanley Klotz v. Sarah Hoyt & Chrissy Kornmann, to be heard Thursday at the Bloomington Law School. Some quotes:

BLOOMINGTON, Ind. -- The Indiana Supreme Court will hear oral arguments on Thursday (Oct. 16) in a case relevant to many college students who rent their homes or apartments. Arguments will begin at noon in the Moot Court Room at the Indiana University School of Law--Bloomington.

Klotz v. Hoyt, the case to be argued, is a landlord-tenant dispute over the payment of back rent and the return of the tenant's security deposit. * * *

[The case] originated in Muncie, when two women rented an apartment from landlord Stan Klotz.

The only roommates -- Sarah Hoyt and Chrissy Kornmann -- signed a one-year lease in June 2006, but paid rent only for the first six weeks of the lease. Due to personal disagreements, the two tenants vacated the apartment without notifying Klotz. After the tenants vacated, Klotz found damage to the apartment, as well as furniture that had been left behind. Klotz attempted to notify both tenants of his intention to begin eviction proceedings, but received no response to his letters.

In January 2007, Klotz filed a complaint seeking immediate possession of the residence and damages in the amount of approximately $10,000.

A trial court evicted Hoyt and Kornmann three weeks later, with Klotz agreeing not to request damages over $6,000, the maximum allowed in small claims court. Hoyt filed a petition for the return of her security deposit and her property that she'd left behind in the residence, arguing that more than 45 days had passed since her eviction, with Klotz failing to send her an itemized list of damages that would warrant the forfeiture of her security deposit. * * *

The Delaware County Circuit Court found in favor of the tenants in April 2007. The Indiana Court of Appeals reversed the decision in February 2008, ruling that the 45-day window for a landlord to present the tenants a list of itemized damages began when the trial court entered an order of eviction against the tenants, not earlier, when Klotz first informed the tenants of his intent to seek an eviction order. The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the case.

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Upcoming Oral Arguments

Law - More on: "Lawyers worry about liability if banks holding client trust accounts fail"

Updating this ILB entry from Oct. 8, which linked to a national article, Donald R. Lundberg, Executive Secretary of the Indiana Supreme Court Disciplinary Commission had an even more timely column last month in Res Gestae, headed "Trust accounts in a time of bank failures."

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Indiana Law

Ind. Law - "It's the law: Out-of-state plates are illegal"

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on the law requiring people to obtain Indiana license plates within 60 days of moving to the state. The article begins:

There are very few things that annoy Indiana residents more than seeing someone from Illinois move into town and then keep their old Illinois plates on their cars -- cheating Indiana and its counties of much needed revenue.

Police in Hammond, Highland, Schererville, Whiting and other communities have done license plate crackdowns at apartment complexes, neighborhoods and schools in recent years.

But the problem persists because people want to continue using the out-of-state plates that they've already purchased, and because some people even find ways to renew an out-of-state plate rather than purchase an Indiana plate. People do it because out-of-state plates can be cheaper.

But people should know that another crackdown could be coming or, manpower permitting, most police agencies will act on complaints from citizens.

Indiana law states, "A person who knowingly or intentionally owns a motor vehicle that is registered outside Indiana but that is required to be registered in Indiana commits a Class B misdemeanor. Violators face hefty fines.

Porter County police Sgt. John Kuehl said a person who moves to Indiana and has no other residence has 60 days to buy Indiana plates. Even people who live in another state must buy Indiana plates if they also live in Indiana at least 183 days a year. People registered to vote in Indiana or who have kids in elementary or secondary schools in Indiana must also buy Indiana plates.

College students and military personnel living in Indiana are exempt from having to buy Indiana plates.

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Indiana Law

Ind. Courts - "Delaware prosecutor reconstructs the record to comply with new rules"

From the Muncie Star-Press today, a story by Rick Yencer begins:

New rules governing the seizure and forfeiture of money and property from criminal defendants are causing Delaware County Prosecutor Mark McKinney to reconstruct records from dozens of cases in which the Muncie-Delaware County Drug Task Force took and spent money in violation of state law.

McKinney summoned more than 40 Muncie police officers, Delaware County sheriff's deputies and other law enforcement officers last week to provide case work and fill out forms determining law enforcement costs for those investigations.

Many of those cases involve abandoned property affidavits used by Muncie police that funneled money and other assets from criminal defendants to city DTF accounts.

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Indiana Courts

Ind. Courts - "Court observers suspect it will be the future president naming one or two federal judges"

"Tumult of presidential politics blocks local federal judge moves" is the headline today to this story by Bill Dolan in the NWI Times. Some quotes:

HAMMOND | Federal judges aren't on the ballot next month, but Northwest Indiana voters could influence who presides over U.S. District Court of Northern Indiana courtrooms here and in South Bend.

While President Bush has named three sitting judges and is trying to further shape the local federal judiciary in the final months of his administration, court observers suspect it will be the future president naming one or two federal judges.

Senior U.S. District Court Judge Allen Sharp, of South Bend, created one vacancy when he went into semi-retirement nearly a year ago. Bush created a second apparent vacancy last month when he announced he is nominating U.S. District Court Judge Philip Simon to move from his court here to the Seventh Circuit Court of Appeals in Chicago.

Filling those two judicial vacancies is a process governed by the Constitution and tradition.

Normally, Bush would name two people recommended by his political ally, U.S. Sen Dick Lugar, R-Ind. The two nominees would be reviewed by the U.S. Senate Judiciary Committee and given a final approval or rejection by the U.S. Senate.

Andy Fisher, spokesman for Lugar, said this isn't a normal year.

"Judge Simon came very highly regarded," Fisher said. "But the Senate Judiciary Committee isn't planning on meeting again. That means the Simon nomination won't move forward this year."

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Wednesday, Oct. 15:

9:00 AM - Kerry L. Meredith v. State of Indiana - A Richmond police officer stopped Meredith to examine a temporary vehicle tag in the rear window of the vehicle, and later searched the vehicle with Meredith's permission, finding cocaine. The Wayne Circuit Court denied Meredith's motion to suppress the evidence obtained during the traffic stop, but the Court of Appeals reversed in Meredith v. State, 878 N.E.2d 453 (Ind. Ct. App. 12/28/2007), clarified on reh'g 886 N.E.2d 79 (5,/15/2008), vacated. The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Meredith: E. Thomas Kemp, Richmond, IN. Attorney for State: George P. Sherman, Indianapolis, IN.

9:45 AM - State of Indiana v. Shannon Hollars - A jury found Hollars guilty of attempted murder, but the Clinton Superior Court ordered a new trial. The Court of Appeals reversed in State v. Hollars, 887 N.E.2d 197 (Ind. Ct. App. 6/3/2008), vacated. (see ILB entries here-6th case, and here.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Appellant: Cynthia L. Ploughe, Indianapolis, IN. Attorney for Appellee: Bradley K. Mohler, Frankfort, IN.

10:30 AM - Brenda and Darren Wagner v. Bobbi J. Yates - In this dispute regarding underinsured motorist ("UIM") insurance liability, the Floyd Superior Court granted summary judgment in favor of a secondary UIM insurer. The Court of Appeals affirmed, holding the secondary UIM insurer could set off payments made by the primary UIM insurer. Wagner v. Yates, 884 N.E.2d 331 (Ind. Ct. App., 4/14/2008), vacated. (See ILB entry here - 4th case.) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Appellant: Stephen T. Naville and Gregory M. Reger New Albany, IN. For Appellees: Sandra L. Heeke and George A. Budd, V, New Albany, IN.

This Thursday, Oct. 16:

12:00 PM - Stanley Klotz v. Sarah Hoyt & Chrissy Kornmann - In a dispute between a landlord and tenants regarding the payment of back rent and return of the security deposit, the Delaware Circuit Court entered judgment for the tenants. The Court of Appeals reversed. Klotz v. Hoyt, 880 N.E.2d 1234 (Ind. Ct. App., Feb. 25, 2008), vacated. (See ILB summary here - 2nd case.) The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorney for Klotz: David J. Karnes, Muncie, IN. Attorney for Hoyt: Alan K. Wilson, Muncie, IN. [Where: Indiana University School of Law - Moot Court Room, 211 S. Indiana Avenue, Bloomington, IN.] [Updated: See this later ILB entry for more details.]

Webcasts will be available here.


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

None scheduled.

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

This Tuesday, Oct. 14th:

10:00 AM - Mark Studler v. Indiana Bureau of Motor Vehicles - Mark Studler filed suit against the Indiana Bureau of Motor Vehicles ("BMV") and Ronald Stiver, in his official capacity as Commissioner of the BMV, challenging Indiana Code section 9-18-24.5-1, which authorizes a speciality license plate featuring an "In God We Trust" design. The BMV offers the "In God We Trust" plate at no additional charge. Studler, who paid a $40 administrative fee to obtain an environmental specialty plate, contended that providing the "In God We Trust" plate for no fee violates Article I, section 23 of the Indiana Constitution. Both parties filed motions for summary judgment in the trial court; Studler's motion was denied and the BMV's motion was granted as a final judgment. Studler appeals the grant of summary judgment to the BMV. The Scheduled Panel Members are: Judges Robb, Barnes and Crone [Where: Walden Inn and Conference Center, DePauw University, 2 West Seminary Street, Greencastle, Indiana.] [For more info, see this ILB entry from Oct. 5th, headed "'In God We Trust' License Plate Case set for Oct. 14".]

Posted by Marcia Oddi on Monday, October 13, 2008
Posted to Upcoming Oral Arguments

Sunday, October 12, 2008

Courts - "U.S. Supreme Court Is Asked to Fix Troubled West Virginia Justice System"

Adam Liptak of the NY Times reports today in a story that begins:

WASHINGTON — The justice system in West Virginia is broken and the United States Supreme Court should take steps to fix it, according to a pile of briefs in three cases awaiting the court’s attention.

The chief justice of the West Virginia Supreme Court lost an election in May, after pictures of him vacationing in Monte Carlo surfaced in the newspapers. He was with a powerful coal-company executive who had business before the court.

A second justice has called the executive, Don L. Blankenship, stupid, evil and a clown who was “trying to buy influence like buying candy for children.” That justice, Larry V. Starcher, has disqualified himself only selectively from cases involving Mr. Blankenship’s company, Massey Energy.

A third justice, Brent D. Benjamin, won his seat with the help of more than $3 million from Mr. Blankenship but has refused to disqualify himself from cases involving Massey, and twice joined a 3-to-2 majority throwing out a $50 million verdict against the company.

The United States Supreme Court is likely to announce this week whether it will hear the first of the cases, about whether the Constitution’s due process clause requires Justice Benjamin to step aside in the $50 million Massey case.

The case, Caperton v. A. T. Massey Coal Company, No. 08-22, has attracted supporting briefs from the American Bar Association and several other groups urging the court to hear the case.

“If the public believes that judges can be bought,” said Keith R. Fisher, a lawyer for the bar association, “that is really poisonous and undermines public confidence in an independent judiciary.”

More from the story:
The respondents in the second case, Massey Energy v. Wheeling Pittsburgh Steel Corporation, No. 08-218, are also represented by Mr. Olson [Theodore B. Olson]. His brief is due Oct. 22, and he said it was premature to discuss what it would say about Justice Starcher.

The petition in that case and a third one, NiSource v. Estate of Tawney, No. 08-219, also attack a distinctive aspect of West Virginia justice: companies hit with enormous punitive damages awards there have no right to an appeal.

Only two states, West Virginia and Virginia, do not guarantee at least one level of appellate review in civil cases. But Virginia caps punitive damages at $350,000.

West Virginia was responsible for three of the seven largest verdicts in 2007, according to The National Law Journal. Yet when two of those verdicts — one for some $400 million, the other for about $220 million — reached the West Virginia Supreme Court, the justices declined to hear appeals.

Andrew L. Frey, a lawyer for Massey, said the failure to allow at least one complete appeal violated due process.

“The risk of error if you leave it to a single judge, particularly an elected judge with a local constituency to accommodate, is too great,” Mr. Frey said.

It is not at all clear, however, that the Constitution guarantees a right to an appeal in a civil case. In criminal cases, the Supreme Court has repeatedly said there is no constitutional right to an appeal. And the relatively cursory review provided by the West Virginia Supreme Court over whether to hear an appeal at all may satisfy any constitutional requirement that there be appellate review.

Posted by Marcia Oddi on Sunday, October 12, 2008
Posted to Courts in general

Ind. Courts - Legal Aid closings in Fort Wayne; 50 year anniversary in Evansville

Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a story that begins:

By the end of the year, a long-time legal resource for low-income people in the area will close its doors forever.

And the decision by the Legal Services of Maumee Valley to cease operations comes at a time when more people may find themselves in need of its services.

The non-profit agency, which has existed since the 1960s, finds itself caught in a fight over dwindling resources available to those who provide free or nearly free legal assistance to those with little money. * * *

With Legal Services of Maumee Valley’s closing, at least four other organizations remain in Allen County to provide legal assistance to the poor and elderly: Indiana Legal Services, Volunteer Lawyer Program of Northeast Indiana, Neighborhood Christian Legal Clinic, and the referral service at the Allen County Bar Association.

These agencies provide a variety of services to the area’s low-income residents – legal advice, family law, housing,consumer law, and aid in gaining access to government benefits.

It is the addition of some newer groups – Indiana Legal Services and the Neighborhood Christian Legal Clinic – that shrank the pot of money available to Legal Services of Maumee Valley, according to Steve Morgan, the business manager for the organization.

In the not-so-distant past, Legal Services of Maumee Valley received the majority of its funding from Legal Services Corp., a national grant-making organization that funnels money from federal sources to legal aid organizations around the country.

But in the late 1990s, Legal Services Corp. shifted how it provided funding, sending all money earmarked for the Hoosier state to the Indiana Legal Services main office in Indianapolis, where it was then sent out to branches around the state, including one in Fort Wayne that serves a 10-county area in northeast Indiana.

The Evansville Courier & Press today has an interview with Attorney Scott Wylie, a board member of the Legal Aid Society of Evansville, on its 50th anniversary. A quote:
Q: Who provides the funding for the Legal Aid Society of Evansville?

A: Uniquely in Evansville, it is a partnership between Vanderburgh County and the city of Evansville. They are the two primary supporters. We remain one of the very few metropolitan areas in the country that has a publicly supported Legal Aid Society for civil legal needs. The third leg of the stool, so to speak, on funding is the United Way locally. They provide our third largest source of funding.

Posted by Marcia Oddi on Sunday, October 12, 2008
Posted to Indiana Courts

Ind. Decisions - More on "Appeals court says Kalab's siblings' records should not have been released"

Updating this ILB entry from yesterday, today the Evansville Courier & Press has a second story by Bryan Corbin on Friday's Court of Appeals opinion in the case titled In the Matter of K.B. and B.L.; A.B.L. (mother) v. Department of Child Services. Some quotes:

In a potentially precedent-setting ruling, the Indiana Court of Appeals has reversed the decision of a Vanderburgh County judge allowing media access to hearings and records involving two younger siblings of 3-year-old Kalab Lay, who died of blunt force trauma April 1.

Kalab allegedly was beaten to death by his parents, Amanda Brooks Lay and Terry Lay, over a period of days in their Evansville home.

Roughly two weeks after the boy's death, Superior Court Judge Brett Niemeier of the Juvenile Division granted media access to Kalab's younger siblings' Child In Need of Services (CHINS) hearings.

Niemeier cited specific Indiana code at the time, stating a juvenile judge may grant "any person having a legitimate interest in the work of the court or in a particular case access to the court's legal records. ..."

Erin Berger, a public defender representing Brooks Lay in the proceedings, filed a motion April 16 asking Niemeier to reconsider and not allow access to the media. * * *

According to the Court of Appeals opinion issued Friday: "As far as we can tell, the heart of Lay's complaint comes from the release of the 'caseworker's report of preliminary inquiry & investigation,' which was filed April 2, 2008. ...

"This report is very detailed and was quoted at length in the April 15, 2008, newspaper article. It is on this limited record that we base our decision."

Brooks Lay's appeal argued the siblings' records did not fit within the categories in state law for releasing otherwise-confidential child-welfare records. Moreover, they should not have been released because the parents' criminal charges and the siblings' CHINS cases have not yet been resolved, according to the appeal.

The question ultimately is whether the privacy interests of the children — even when unidentified — outweigh the interest of the community, Niemeier said.

"I totally understand their interpretation," he said. "I'm hoping because it is such an important decision that the Supreme Court will accept transfer and decide once and for all what the law is."

While Niemeier's efforts to educate the public about the inner workings of the child-protection system were "laudable goals," Judge Michael P. Barnes wrote, Kalab's two siblings "are entitled to the same privacy and confidentiality that are offered to other children involved in less notorious CHINS proceedings."

The ruling is likely to shock some Hoosier judges, Niemeier said. "I know there are some judges around the state that have all of their CHINS cases open to the public."

Posted by Marcia Oddi on Sunday, October 12, 2008
Posted to Ind. App.Ct. Decisions

Court - "Kentucky Bar leader tried to stall abuse deal, records show"

Andrew Wolfson has an interesting story today in the Louisville Courier Journal that begins:

The president of the Kentucky Bar Association allegedly tried to block the $84 million settlement of the Diocese of Covington priest-abuse case so she could extract a larger fee for herself, according to affidavits filed in bar proceedings.

The documents allege that Barbara Bonar, working behind the scenes, helped write an objection for a former client to the settlement and tried to drum up negative news stories to derail it -- even though she had been a lead lawyer for the 380 victims.

Posted by Marcia Oddi on Sunday, October 12, 2008
Posted to Courts in general

Ind. Law - "States’ Film Production Incentives Cause Jitters"

An interesting story with an Indiana twist today in the NY Times. Some quotes from Michael Cieply's long report:

LOS ANGELES — Already on the hook for billions to bail out Wall Street, taxpayers are also finding themselves stuck with a growing tab for state programs intended to increase local film production.

One of the most shocking bills has come due in Louisiana, where residents are financing a hefty share of Brad Pitt’s next movie — $27,117,737, to be exact, which the producers will receive by cashing or selling off valuable tax credits.

As the number of movies made under these plans multiplied in recent years, the state money turned into a welcome rescue plan for Hollywood at a time when private investors were fleeing the movies. But the glamour business has not always been kind to those who pick up the costs, and states are moving to rein in their largess that has allowed producers to be reimbursed for all manner of expenditures, whether the salaries of stars, the rental of studio space or meals for the crew.

Louisiana, one of the most assertive players in the subsidy game, wound up covering that outsize piece of the nearly $167 million budget of Mr. Pitt’s “The Curious Case of Benjamin Button” — the state’s biggest movie payout to date — when producers for Paramount Pictures and Warner Brothers qualified the coming movie, a special-effects drama, under an incentive that has since been tightened. Separately, Louisiana’s former film commissioner is set to be sentenced in January to as much as 15 years in federal prison for taking bribes to inflate film budgets (though not that of “Button”) and, hence, pay higher subsidies.

Michigan, its own budget sagging, is in the middle of a hot political fight over a generous 40 percent rebate on expenditures to filmmakers that was carried out, with little opposition, only last April. Producers of films for studios like Warner Brothers and the Weinstein Company rushed to cash in, just as homegrown businesses were squeezed by a new business tax and surcharge. Rebellious legislators from both parties are now looking to put a cap on the state’s annual film spending, which some have estimated could quickly hit $200 million a year. * * *

Until two years ago, Louisiana’s program offered a 15 percent credit for virtually the entire budget of a qualified film (and more for Louisiana resident wages), including money that may have been spent out of state. Things were fast and loose enough in Louisiana that Mark Smith, who oversaw the program, pleaded guilty last year to taking $67,500 in bribes to inflate budgets for a film production company that was not named by the authorities.

Kathy English, a spokeswoman for the United States attorney’s office in New Orleans, said the case remained open.

Louisiana’s new rules offer a larger credit, but only on spending within the state. That made the incentive less attractive for big-budget movies, like “Button,” which was done under old rules, and could recover parts of star salaries and other expenses that left Louisiana. But it has drawn a welter of smaller movies and TV shows, 70 of which have been shot so far in 2008, up from 56 the year before.

What about Indiana?The website Inside Indiana Business has an entry from Feb. 15th of this year that begins:
Governor Mitch Daniels calls the Indiana State Senate's vote to override his veto of a bill that would provide incentives to production companies filming in the state, "truly an irresponsible decision." The legislation provides refundable tax credits for specific production expenses. The bill now becomes law.
Governor Daniels vetoed the bill April 28, 2007. Here is the ILB entry from that date (and incidentally the ILB is bemoaning the fact that the veto message is not readily accessible -- well, here is another good example of why it should be.)

Inside Indiana Business' story on the veto override includes interesting quotes from the Governor and from one of the bill's cosponsors. From the latter:

“The governor said when he vetoed this bill it came with too high a price tag, but the millions of dollars that the film industry spends in the states in which they work could greatly benefit our state. Indiana has a lot to offer the film industry, but a filmmaker is going to shoot where it is the most economical for the production. Indiana has been losing out to neighboring states and these incentives are necessary to recruit filmmakers to come here and make their investments.”

Twenty-nine states offer various levels of incentives for media productions. The state of Louisiana has seen revenue from film jump from $20 million to over $600 million in the first four years after enacting incentives. Five years ago, Illinois began offering tax credits on in-state film production costs and brought in $77 million and 15,000 jobs in 2003.

Finally, for now, the Indianapolis Star's Christopher Lloyd had a long Star blog post dated Aug. 15 headed "Indiana film incentives fail to attract filmmakers so far." Some quotes:
Indiana has finally positioned itself to become the real-life backdrop for blockbuster films and network TV shows.

But in the six weeks or so since offering its new film incentives program -- which went into effect July 1 -- no new film or television productions have qualified for the tax rebates offered. No applications have even been received.

Compare this to Michigan, which introduced its own film incentives just three months earlier. Since then, more than $150 million in film business has flooded into the state, including Clint Eastwood's newest film, "Gran Torino."

The difference? With up to a 42 percent rebate on production costs, Michigan's incentives are nearly triple the 15.percent in rebates the Hoosier state offers. * * *

Even Bloomington's Angelo Pizzo, the writer/producer of two of the most quintessentially Indiana movies, "Hoosiers" and "Rudy," admits that if forced to choose between shooting his next projects here or in another state with better incentives, it might be hard to persuade his financiers to stay here.

"One of the reasons I got behind the (incentives) bill is there are a number of projects I'm involved with that I want to shoot in Indiana. And right now, I'm faced with a real dilemma. Do I, out of sentiments, out of wanting to support the film business in Indiana, do it for 15 percent here, or for 42 percent (in Michigan)?" he said. "Economically, it's hard for me to justify." * * *

Brad Rateike, a spokesman for Daniels, said the governor thinks the incentives as currently authorized are an improvement over the bill he vetoed, citing changes made in the past legislative session to cap the total amount of tax rebates at $5 million annually, and to bring applications under the review of the IEDC.

Still, Daniels remains concerned that too many categories of expenses, such as legal work, will qualify for rebates, and that incentives will end up going to productions that were going to shoot in Indiana anyway. * * *

Indiana film incentives

Went into effect July 1; qualified media productions are eligible for a tax rebate of up to 15 percent on production costs, with an annual cap of $5 million. They're also eligible for exemption from state sales tax on lodging and acquisition or rental of tangible personal property. The minimum spending for eligible productions is $100,000 for feature films, television shows and documentaries and $50,000 for commercials, short films and music videos.
Other states:

Michigan: Up to 42 percent of production costs, with 25 percent for the construction of new studios and 50 percent for on-the-job training of state residents. Recent productions: "Gran Torino," starring and directed by Clint Eastwood; "Prayers for Bobby," a Lifetime Network movie starring Sigourney Weaver.

Louisiana: 25 percent, with up to 40 percent for studios building soundstages that applied before August. Recent productions: "Disaster Movie"; "W," directed by Oliver Stone.

New Mexico: 25 percent, with 50 percent for on-the-job training of state residents. Recent productions: "Beer for My Horses," starring Toby Keith; "Swing Vote," starring Kevin Costner.

Illinois: 20 percent. Recent productions: "The Dark Knight," starring Christian Bale and Heath Ledger.

New York: 30 percent, with 35 percent for productions in New York City. Recent productions: "Ugly Betty"; "The Greatest," starring Pierce Brosnan and Susan Sarandon.

Connecticut: 30 percent. Recent productions: "Revolutionary Road," starring Leonardo DiCaprio and Kate Winslet.

California: The historic capital of filmmaking does not have any film incentives, although Gov. Arnold Schwarzenegger is pushing tax credits.

You can see the text of the overridden veto - HEA 1388, here - the "Media Production Expenditure Tax Credit," IC 6-3.1-32, here, beginning on p. 2.

Changes made in 2008 to tighten up the law (putting a $5 million limit on all tax credits, rather than on tax credits per corporation) can be found in HEA 1125 (PL 131-2008), SECTIONS 18-20 (pp. 27-29).

Here is the current text of IC 6-3..1-32.

Posted by Marcia Oddi on Sunday, October 12, 2008
Posted to Indiana Law

Saturday, October 11, 2008

Ind. Decisions - Yet more on: Remote voting sites at issue in Lake County

Updating this ILB entry from Oct. 8th, both the NWI Times and the Gary Post Tribune report today that U.S. District Court Judge Joseph Van Bokkelen heard arguments yesterday on the remote voting sites issue and has not yet made up his mind.

John Byrne reports in the P-T:

Attorneys spent about eight hours Friday arguing in front of U.S. District Court Judge Joseph Van Bokkelen about whether the satellite voting sites in the three cities help ensure a fair election for residents in northern Lake County or represent a crass attempt by Democrats to run up big returns in one of Indiana's biggest Democratic strongholds.

In the end, Van Bokkelen said he had not decided whether to grant Lake County Republican Chairman John Curley a temporary restraining order to prevent the voting sites from opening in Clerk's Office locations in the cities. * * *

The judge promised to announce his decision Monday, so the voting sites could open Tuesday if he does not grant the restraining order.

Democratic attorneys say attempts to halt the in-person absentee voting sites violate the federal Voting Rights Act because it places an unfair burden on the largely minority populations of Gary, Hammond and East Chicago to travel to Crown Point to vote early at the Lake County Election Office. * * *

The Lake County Election Board voted 3-2 Sept. 23 to open the voting offices, with both Republicans on the board casting "No" votes.

The Democrats on the board opted to open the sites anyway, though state law appears to require a unanimous vote for such action.

Bill Dolan writes in the Times:
Democratic Party efforts to open satellite voting centers in the Gary, Hammond and East Chicago county courthouses have been on hold while U.S. District Court Judge Joseph Van Bokkelen decides whether they are legal.

He heard eight hours of testimony and argument Friday morning and afternoon from lawyers of both political parties, the Indiana chapter of the National Association for the Advancement of Colored People and Service Employees International Union.

At the end of the day Van Bokkelen announced, "One thing I can say categorically is that my mind is not made up."

He promised a decision Monday in time for county officials to know whether they can open their satellite centers as early as Tuesday morning.

State law requires each county to open one location for people to vote in person between Oct. 6 and Nov. 3 and permits more early voting locations in Lake if the bipartisan county elections board unanimously approves them.

The elections board voted 3-2 on the issue last month, with Democratic Party members in support of them.

Here is a link to the docket, current as of today.

Posted by Marcia Oddi on Saturday, October 11, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Courts | Indiana Decisions | Indiana Government

Ind. Decisions - "Appeals court says Kalab's siblings' records should not have been released"

Yesterday's Court of Appeals opinion in the case titled In the Matter of K.B. and B.L.; A.B.L. (mother) v. Department of Child Services (see ILB entry here) is the subject of a lengthy story today in the Evansville Courier & Press, reported by Bryan Corbin. Some quotes:

INDIANAPOLIS — In the latest legal development in the Kalab Lay child-fatality case, the Indiana Court of Appeals has ruled that a Vanderburgh County judge should not have released child-welfare records of two of Kalab's siblings to the news media.

In a 9-page decision, the appeals court ruled that Vanderburgh Juvenile Court Judge Brett Niemeier ruled incorrectly when he released records involving one brother and one sister of Kalab to the media. Those children are referred to in the decision by their initials, K.B. and B.L.

"We cannot overemphasize the extent of the tragedy these children have suffered. Such tragedy, however, is not a basis for putting their lives and the details of their misfortune under a public microscope," appeals court Judge Michael P. Barnes wrote for the three-judge panel in reversing the trial court's decision. * * *

At issue is a decision by Niemeier to release the Child In Need of Services - or CHINS - records on the two younger siblings to the news media.

On April 14, Niemeier opened the normally-closed Juvenile Court proceedings to the media in order to educate the public about the Department of Child Services system and address the community's interest in the welfare of children. Names of the siblings were not to be used.

Two days after the hearing, an attorney for Amanda Brooks Lay, Erin Berger, filed a "motion to correct errors," essentially asking the Juvenile Court judge to reconsider and reverse his own decision granting media access, a request he denied May 27. Brooks Lay's attorney then appealed Niemeier's ruling up to the Indiana Court of Appeals.

While the appeal was pending, the court of appeals granted a temporary stay, meaning that two reporters who showed up for a scheduled June 9 hearing in Juvenile Court on the Lay siblings' cases were asked to leave the courtroom.

The appeal argued that the siblings' records did not fit within the categories in state law for releasing otherwise-confidential child-welfare records. Moreover, they should not have been released because the parents' criminal charges and the siblings' CHINS cases have not yet been resolved.

In a decision handed down Friday, the three-judge appeals court panel agreed. State law allowed the public release of the investigatory report on Kalab because it involved a child fatality from abuse, abandonment or neglect; but that law did not apply to investigatory reports of the two younger siblings because their cases do not involve a death or near-fatality, Barnes wrote in the decision.

While Niemeier's efforts to educate the public about the inner workings of the child-protection system were "laudable goals," Barnes wrote, Kalab's two siblings "are entitled to the same privacy and confidentiality that are offered to other children involved in less notorious CHINS proceedings."

In the decision, the appeals court judges suggested the Indiana Legislature - which in recent years has passed laws to further open the child-welfare system to public scrutiny - revise the laws again. "We agree it is unclear under what circumstances the Legislature intended any interested persons to be able to access juvenile court records. We invite the Legislature to clarify this ambiguity so as to ensure the confidentiality of legal records involving children," Barnes wrote. Appeals court judges Ezra Friedlander and Carr Darden joined in the decision.

The story also notes:
Although the appeals court reversed Niemeier's decision, its ruling does not state what the legal remedy is for Amanda Brooks Lay, nor does it state what should happen to any records already released involving the siblings, nor whether any disclosed records must now be returned.

Earlier this year, the Evansville Courier & Press received nearly 3,000 pages of documents on the Kalab Lay case from the Juvenile Court , but the names of the siblings were "redacted" or marked out. Information gleaned from the Kalab file already has been published in a number of articles by the newspaper.

Posted by Marcia Oddi on Saturday, October 11, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Supreme Court orders hundreds of pages of sealed documents in a pending case to be open and available for public inspection

This brief report appeared Friday evening on the Chicago Tribune website (see yesterday's ILB entry here):

The Indiana Supreme Court on Friday ordered opened to the public hundreds of pages of documents that had been sealed at the request of corporations involved in an insurance dispute.

The case, Travelers Casualty and Surety Co. vs. U.S. Filter Corp. and several others, involves whether corporations defending claims of exposure to silica have insurance coverage for those claims. The case is pending before the state Supreme Court.

Marion Superior Court had deemed certain documents in the case confidential in April 2005 at the request of virtually all the parties involved. Under that order, parties also could request those documents to be purged from court records at the end of the case.

But the high court ordered the records opened Friday, finding that the request to seal records was not properly justified according to Indiana legal rules.

Posted by Marcia Oddi on Saturday, October 11, 2008
Posted to Indiana Courts

Ind. Courts - "Ex-court official is disciplined"

This brief item appears today in the Indianapolis Star (see yesterday's ILB entry here):

The Indiana Supreme Court on Friday accepted an agreement ending disciplinary proceedings against a former Marion Superior Court commissioner.

Former Master Commissioner Nancy L. Broyles, who presided over the post-conviction case of a man exonerated of rape, is permanently banned from serving as a judge, even temporarily. She and the Indiana Commission on Judicial Qualifications reached the agreement last week.

Chief Justice Randall T. Shepard dissented, deeming the sanction inadequate. Broyles retired last year, soon after Harold David Buntin won his freedom after court mistakes resulted in a long delay in a ruling granting his request to set aside the conviction.

Disciplinary charges are still pending against Judge Grant Hawkins, who had a two-day hearing before three judges this week.

Posted by Marcia Oddi on Saturday, October 11, 2008
Posted to Indiana Courts

Friday, October 10, 2008

Ind. Courts - 7th Circuit briefs no longer available online?

Recall this post from yesterday on "7th Circuit issues Illinois election decision that references Indiana"? The case was Allan J. Stevo v. Keith et al,.

Today I looked for the briefs in the case via the 7th Circuit site. Instead, I got this message:

In accordance with policy initiatives promulgated by the Judicial Conference of the United States , public access to view or download documents for this type of case will be unavailable on the Internet. Unless sealed by court order, documents will continue to be available for physical inspection in the office of the Clerk of the Court.
I looked for the briefs for some other recent civil cases and got the same response.

What gives? For years all 7th Circuit briefs, except for criminal cases, have been accessible online. It was one of the site's great features. Anyone have a clue?

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Marion County Judge Hawkins, Master Commissioner Broyles charged by Disciplinary Commission

Updating this ILB entry from Oct. 8th, here is the 51-page package of documents, headed by the Supreme Court "Order Accepting Agreed Discipline," in the Master Commission Broyles matter. The Order provides that Nancy L.Broyles:

is hereby PERMANENTLY BANNED from serving in any judicial capacity of any kind, including service as a judge pro tempore. A determination on the assessment of costs shall be held in abeyance pending the outcome of this matter as it pertains to Judge Hawkins. An opinion of the Court will follow in due course, but this order shall be considered dispositive of the case as it pertains to Respondent Broyles.

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Indiana Courts

Ind. Decisions - Supreme Court orders hundreds of pages of sealed documents in a pending case to be open and available for public inspection

Oral arguments were heard before the Supreme Court Jan. 14th in Travelers Cas. & Sur. Co. v. United States Filter Corp. - see ILB upcoming oral argument notice here. Here is the link to the ILB summary of the July 24, 2007 Court of Appeals opinion. . [This is the Wheelabrator case.]

Today the Supreme Court has announced:

The Indiana Supreme Court is ordering hundreds of pages of sealed documents in a pending case to be open and available for public inspection.

In April 2005, Marion Superior Court approved a "Confidentiality Stipulation and Order" in an insurance case. The case involves whether corporations defending claims of exposure to silica have insurance coverage for those claims.

That case is now before the Indiana Supreme Court and under consideration by the 5 Justices. While reviewing the case, the Court discovered the confidential documents. In August 2008, The Supreme Court filed an "Order to Show Cause" (access it here) questioning why public access was denied and case documents were filed under seal.

Today the Indiana Supreme Court has ordered those documents be declared a matter of public record. The attached "Order On Access To Case Records" (access it here) explains why the Court will not allow the documents to remain confidential or be purged from the trial court record. [Emphasis in the original]

Read the Order. It has a section headed "How Rule 9 Works." Unfortunately it is a scanned document so that I may not easily pull quotes from it, but I will be commenting on it later.

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Yet more on: Vanderburgh commissioners pass abortion regulations

Updating ILB entries from August re Vanderburgh commissioners passing abortion regulations (see list of ILB entries here), Thomas B. Langhorne of the Evansville Courier & Press has two stories today exploring the background of the action; "E-mails show planning behind abortion ordinance" (here); and "Hospitals uneasy at proposal" (here).

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Indiana Law

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

Updating this ILB entry from Sept. 24th, Bob Kasarda off the NWI Times reports today in a story that begins:

VALPARAISO | Michael Haughee, a former Hebron official and former Lake County deputy prosecutor, faces another year behind bars.

Haughee admitted this week to violating the probation he was given after being found guilty of sexually assaulting a disabled woman in 2006.

The Gary Post-Tribune has this story.

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Indiana Courts

Ind. Courts - 2008 Indiana Judicial Candidate Information via Indiana Right to Life

Indiana Right to Life has its own website on the appellate jurists up for retention November 4th. Access it here. Its links are to the Lexis cases provided via the Indiana Courts' Retention Website, which is available here.

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Indiana Courts | Judicial Retention

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

Updating this ILB entry from September 30, the October issue of Res Gestae arrived in the mail today. It contains Part II of my article, "Can you rely on the Indiana Code?"

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Indiana Law

Courts - Supreme Court of Connecticut grants gay marriage rights [Updated]

Connecticut today became the third state, following Massachusetts and California, to have its high court uphold the right to same sex marriage under its state constitution. See Howard Bashman's entry in How Appeals for links to the opinion and early press coverage. A quote from the story in the Harford Courant written by Mark Spencer, Alaine Griffin and Danieela Altimari:

The Supreme Court released its historic ruling at 11:30 a.m. Citing the equal protection clause of the state constitution, the justices ruled that civil unions were discriminatory and that the state's "understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection."

"Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice," the majority wrote. "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."

In a statement released minutes after the decision was announced, Gov. M. Jodi Rell said she disagreed with it, but uphold it. She said she was proud to sign the state's civil unions law in 2005, the first in the nation enacted without a court mandate, and thought it was "equitable and just."

"The Supreme Court has spoken," Rell said. "I do not believe their voice reflects the majority of the people of Connecticut. However, I am also firmly convinced that attempts to reverse this decision -- either legislatively or by amending the state Constitution -- will not meet with success. I will therefore abide by the ruling."

[Updated 10/1108] "Gay Marriage Is Ruled Legal in Connecticut " is the headline to a long story in the NY Times, reported by Robert D. McFadden. Some quotes:
A sharply divided Connecticut Supreme Court struck down the state’s civil union law on Friday and ruled that same-sex couples have a constitutional right to marry. Connecticut thus joins Massachusetts and California as the only states to have legalized gay marriages.

The ruling, which cannot be appealed and is to take effect on Oct. 28, held that a state law limiting marriage to heterosexual couples, and a civil union law intended to provide all the rights and privileges of marriage to same-sex couples, violated the constitutional guarantees of equal protection under the law.

Striking at the heart of discriminatory traditions in America, the court — in language that often rose above the legal landscape into realms of social justice for a new century — recalled that laws in the not-so-distant past barred interracial marriages, excluded women from occupations and official duties, and relegated blacks to separate but supposedly equal public facilities.

“Like these once prevalent views, our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection,” Justice Richard N. Palmer wrote for the majority in a 4-to-3 decision that explored the nature of homosexual identity, the history of societal views toward homosexuality and the limits of gay political power compared with that of blacks and women.

“Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same-sex partner of their choice,” Justice Palmer declared. “To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.”

The ruling was groundbreaking in various respects. In addition to establishing Connecticut as the third state to sanction same-sex marriage, it was the first state high court ruling to hold that civil union statutes specifically violated the equal protection clause of a state constitution. The Massachusetts high court held in 2004 that same-sex marriages were legal, while California’s court decision in May related to domestic partnerships and not the more broadly defined civil unions.

Here is a link to the opinion.

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Courts in general

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

For publication opinions today (1):

In In the Matter of K.B. and B.L.; A.B.L. (mother) v. Department of Child Services, a 9-page opinion, Judge Barnes writes:

Amanda Lay appeals the trial court’s order granting the media access to K.B.’s and B.L.’s child in need of services (“CHINS”) records. We reverse.

Issue. Lay raises one issue, which we restate as whether the trial court properly allowed the media to access the children’s CHINS records.

Facts. On April 1, 2008, K.B.’s and B.L.’s three-year-old brother, K.L., died. On April 2, 2008, CHINS petitions were filed regarding K.B. and B.L. That same day, they were determined to be CHINS. On April 4, 2008, the State filed criminal charges against Lay and her husband, the children’s father, Terry Lay, for K.L.’s death and K.B.’s and B.L.’s battery and neglect. On April 14, 2008, the trial court, apparently sua sponte and without notice or a hearing, issued an order granting the media access to K.B.’s and B.L.’s CHINS records. In its order, the trial court stated:

In accordance with Indiana Code 31-39-2-10 the Court hereby grants access to any interested media representative to the chronological case summaries, petitions, motions and orders concerning the child in need of service causes 82D01-0804-J-92 [sic] and 82D01-0804-JC-093 which are the children of Amanda Lay. The Court further orders the children’s names or other identifying information such as dates of birth or social security numbers are to remain confidential and not reported to the general public.* * *
[Re IC 31-39-2-10] We agree it is unclear under what circumstances the legislature intended any interested person to be able to access juvenile court records. We invite the legislature to clarify this ambiguity so as to ensure the confidentiality of legal records involving children. Nevertheless, we need not determine this issue today because even assuming that Indiana Code Section 31-39-2-10 applies to CHINS proceedings, we conclude that the trial court abused its discretion in disclosing K.B.’s and B.L.’s CHINS records. * * *

Because there is no specific ongoing threat to the safety or welfare of the community, the trial court abused its discretion in disclosing the children’s CHINS records.

Conclusion. The trial court abused its discretion when it disclosed K.B.’s and B.L.’s confidential CHINS records. We reverse.

ILB notes: Kalab Lay's death and the circumstances surrounding it have had much notoriety in Evansville. See this ILB entry from April 20th for background, plus an Evansville Courier & Press editorial that begins: "If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information." See also this ILB entry from June 10th headed "Media barred from Lay custody trial"., and this June 15th follow-up.

NFP civil opinions today (0):

NFP criminal opinions today (5):

James Pello v. State of Indiana (NFP)

Gary A. Kain v. State of Indiana (NFP)

Casey L. Sams v. State of Indiana (NFP)

Shawn D. Yoakum v. State of Indiana (NFP)

Kenneth Beckenhaupt v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In Alshafi Tate v. Executive Management Services, Inc. (ND Ind., Judge Springmann), a 10-page opinion, Judge Williams writes:

Alshafi Tate, a former employee of Executive Management Services (“EMS”), claims that his supervisor, Dawn Burban, threatened to fire him if he refused to continue their sexual relationship. When Tate rejected her ultimatum, Burban instigated an altercation that led to his termination. Tate filed suit, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. After a trial, the jury rejected Tate’s sexual harassment claim, but found in his favor on his retaliation claim. EMS appeals, arguing that Tate did not engage in protected conduct. EMS further maintains that Tate cannot prove that his termination was connected to his refusal to have sex with Burban because the decision to fire Tate was made pursuant to an independent investigation. Because Tate has not shown that he engaged in protected conduct, we reverse the district court’s decision. * * *

The jury returned a verdict in Tate’s favor on the retaliation claim and found against Tate on his sexual harassment claim. After trial, EMS renewed its motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law or in the alternative, a motion for a new trial, asserting: (1) Tate did not engage in any protected activity when he told his supervisor he would not continue to have sex with her to keep his job, and (2) EMS had no knowledge that Tate’s supervisor had a retaliatory motive for her actions, and EMS discharged Tate based on the report of Hudson, who was a disinterested witness.

The district court denied EMS’s post-trial motion. The court concluded that Tate had engaged in statutorily protected activity because “rebuffing sexual harassment can in some situations be considered opposition to an unlawful employment practice.” The district court also concluded that the trial record would permit a reasonable jury to hold EMS liable, stating “there was sufficient evidence for the jury to find that Scheumann was Burban’s rubber stamp and that Scheumann failed to conduct any independent investigation” of Tate’s claims insulated from the discriminatory animus. EMS appeals. * * *

We do not dispute that Tate protested about Burban’s behavior; the problem is that he did not necessarily believe that her behavior was illegal at the time. See Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (“The purpose of requiring that plaintiffs reasonably believe in good faith that they have suffered discrimination is clear. Title VII was designed to protect the rights of employees who in good faith protest the discrimination they believe they have suffered and to ensure that such employees remain free from reprisals or retaliatory conduct.”) (emphasis added). Indeed, Tate testified that he “wanted to leave Dawn” so that he could “start off with a clean slate” and “be true” to his wife. While there are no “magic words” that a plaintiff must use in order to indicate that the supervisor’s behavior is unlawful, Gates v. Caterpillar, Inc., 513 F.3d 680, 687 (7th Cir. 2008), the record is devoid of any statements that indicate sexual harassment was at issue. Because Tate has failed to establish that he had a good faith belief that he was being sexually harassed, EMS is entitled to judgment as a matter of law.

III. CONCLUSION. Accordingly, the judgment of the district court is REVERSED.

Posted by Marcia Oddi on Friday, October 10, 2008
Posted to Ind. (7th Cir.) Decisions

Thursday, October 09, 2008

Law - "Lawyers worry about liability if banks holding client trust accounts fail"

An article in The National Law Journal, by Julie Kay, begins:

Following the failure of California's IndyMac and the very real potential of other bank collapses, lawyers have been flooding bar associations with questions about whether they would be responsible for client trust accounts if a bank fails.

In response, bar associations have been posting guidance to lawyers on their Web sites, holding internal meetings on the issue and issuing formal ethics opinions.

The consensus of the bar associations is that lawyers must be cautious about where they hold clients' funds, making sure they're in Federal Deposit Insurance Corp. (FDIC)-insured, solid banks. Opinions vary on whether funds should be split up in different banks to take advantage of the $250,000 insured deposits.

According to research and interviews with a variety of bar associations, including those of California, Los Angeles, Florida and Virginia, lawyers should not worry about sanctions or disciplinary actions if a bank failure leads to the loss of client funds, provided the lawyer chooses an FDIC-insured, stable bank.

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to General Law Related

Ind. Decisions - More on: 7th Circuit issues Illinois election decision that references Indiana

Allan J. Stevo v. Keith et al, an election decision out of Illinois, posted by the 7th Circuit "in typescript" October 1 and summarized in this ILB entry of that date, has now been posted on the 7th Circuit site in the regular order.

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Christopher Scott Barker v. City of West Lafayette and Officer Adam S. Ferguson, a 14-page opinion, Judge Crone writes:

Christopher Scott Barker appeals the trial court’s attorney fees order issued upon remand from another panel of this Court. The fees order followed Barker’s successful civil rights action against the City of West Lafayette and Officer Adam S. Ferguson (collectively, “the City”). The City filed a cross-appeal. We affirm in part, reverse in part, and remand.

Issues: Barker raises one issue, which we restate as the following three: I. Did the trial court err in denying Barker’s petition for fees related to his trial court and post-remand litigation to recover attorney fees? II. Did the trial court err in denying Barker’s petition for fees related to his prior fee-related appeal to this Court? III. Did the trial court err in awarding fees related to Barker’s unsuccessful excessive force claim against the City?

In its cross-appeal, the City raises four issues, which we consolidate and restate as the following three: IV. Did the trial court use a reasonable hourly rate in calculating Barker’s attorney fees? V. Did the trial court err in failing to deduct fees for clerical work performed by paralegals? VI. Did the trial court commit reversible error by ruling prematurely upon Barker’s motion to correct error? * * *

In sum, we reverse the trial court’s order denying Barker fees related to litigation to his trial court and post-remand litigation to recover fees, and we instruct the trial court to award Barker fees in the amount of $28,568.64, plus reasonable fees related to additional litigation before the trial court in this case. We reverse the trial court’s order denying Barker’s petition for fees related to his first appeal and instruct the trial court to award him $28,342.16, plus reasonable fees related to the instant appeal. We affirm the trial court’s award of fees related to Barker’s unsuccessful excessive force claim and instruct the trial court to reflect that award correctly in its revised order. We affirm on the remaining issues.

Affirmed in part, reversed in part, and remanded with instructions for further proceedings not inconsistent with this opinion.[3]
____
[3] To avoid yet another appeal in this case (and further expenditure of public funds), we encourage the trial court to consider this Court’s guidance when determining, upon remand, the amount of fees to which Barker is entitled for the litigation of this second appeal.

NFP civil opinions today (1):

In Re: The Marriage of Marilyn Daluisio v. Gene Daluisio (NFP) - "Marilyn Daluisio (“Wife”) appeals a trial court judgment vacating an income withholding child support order against Gene Daluisio (“Husband”). The dispositive issue is whether the trial court erred in concluding that the California IWO was unenforceable on its face. We affirm. * * *

"Here, Wife did not pursue an IWO through the local child support agency.5 Instead, she secured the services of a Texas-based child support collection agency. As such, her IWO was not exempt from the requirement of a judicial signature. Thus, the trial court properly concluded that the IWO was defective and unenforceable for lack of proper execution. Therefore, we affirm."

NFP criminal opinions today (5):

April K. Finch v. State of Indiana (NFP)

Tyrone Bradshaw v. State of Indiana (NFP)

Sean Morse v. State of Indiana (NFP)

Darrell E. Cardwell v. State of Indiana (NFP)

Hilliard Alan Lush v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to Ind. App.Ct. Decisions

Law - "Kentucky Tests State's Reach Against Online Gambling"

Stephenie Steitzer of the Louisville Courier Journal reports today on a much-watched lawsuit going on in Kentucky:

FRANKFORT, Ky. -- A Franklin Circuit Court judge said yesterday that it would be at least another week before he issues any rulings in Gov. Steve Beshear's lawsuit against 141 online gambling sites.

Judge Thomas Wingate heard more than three hours of oral arguments yesterday on the governor's attempt to shut down illegal Internet gambling in the state.

"There are very interesting issues presented to the state," he said.

The governor filed suit last month to force the sites to block access by Kentucky users and pay damages or relinquish control of their Web site domain names.

After the suit was filed, Wingate issued a seizure order requiring that the domain names be transferred to the state.

At least 10 attorneys in the case argued that Kentucky doesn't have jurisdiction, that Beshear's suit violates international and interstate commerce laws, that Web sites are not gambling devices as defined by state law and that the court did not follow due process.

Beshear has called the sites "leeches on our communities" that prey on young people and are not regulated.

Edward Leyden, an attorney representing an Internet gambling trade group, said Kentucky officials have wrongly vilified the Web sites as "renegades" and "criminal enterprises."

In fact, he said, the operators of the sites are abiding by the laws of their home countries, many of which are U.S. allies, and are regulated and taxed there. Some are even publicly traded on stock exchanges, he said.

Robert Foote, an Illinois attorney representing the state, charged that the site's operators "steal $170 million from Kentucky every year" and have hired the biggest law firm in the world to fight the lawsuit "because they know what they are doing is wrong."

State officials have said Kentuckians gamble away millions of dollars a year on the Internet.

Despite the lawsuit, Kentuckians are still able to gamble at many of the online casinos, which still have functioning Web sites. However, operators of the sites aren't allowed to alter them in any way under Wingate's seizure order last week.

Brian Krebs of the Washington Post has a lengthy report today on the Kentucky effort that begins:
An effort by the state of Kentucky to seize more than 140 online gambling Web site names is raising novel legal questions about the physical location of digital property and the reach of local and regional governments on the global Internet.

Last month, a Kentucky circuit court judge granted a request by the governor to have 141 Web site names used by online gaming operations transferred to the state's control. The action was filed by a Chicago law firm on behalf of Gov. Steve Beshear (D), who was elected in part on the strength of a promise to bring casino gambling to the state.

The domains include some of the most popular online gaming sites on the Internet, including UltimateBet.com and FullTiltPoker.com. According to the state, residents spend roughly $170 million each year gambling at online casinos, potentially taxable revenue that might otherwise have been spent at the state's own gaming operations, which include regulated betting on horse racing and bingo.

Attorneys for the state convinced Judge Thomas Wingate that the gambling Web site names were tangible "gambling devices" that could be seized under Kentucky's gaming statutes. Wingate's order compels the entities that manage the registration of those domains, known as domain registrars, to transfer control over the Web sites to the state.

Jennifer Brislin, spokeswoman for the Kentucky justice department, said the state is seeking unspecified damages from the casinos, but that its primary goal is to force the Web sites to block Kentucky residents from visiting them. She said the majority of the registrars affected by the judge's order had "locked" the domains in question to prevent them from being transferred to another registrar pending the outcome of the case.

"We think it creates a tremendous disadvantage for our legitimate, licensed and taxed gaming interests, and there are some damages that are due to the commonwealth as a result," Brislin said.

Opponents of the decision say the Kentucky has no legal authority to seize the casino Web site names, as neither the individuals who registered the Web sites nor the registrars themselves are physically located there. All of the online casinos are operated outside of the United States. Many online gaming companies are lobbying on Capitol Hill to be legalized, regulated and taxed in the United States, which would allow them to market to U.S. consumers.

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to General Law Related

Law - Voting Access In 10 Key States

NPR's Fresh Air had this story yesterday:

A new report issued by the nonpartisan advocacy group Common Cause gauges the voting infrastructure in 10 swing states. The results? While Florida, Georgia and Virginia score poorly on voting administration, Ohio, a state plagued by hours-long voting lines in 2004, has shown marked improvement. Wisconsin also scores well.
Access the 108-page report here. A quote:
In this report, we examine what, if any, progress has been made since 2006 in seven battleground states: Florida, Georgia, Michigan, Missouri, Ohio, Pennsylvania, and Wisconsin. We also have added three states to our survey, Colorado, New Mexico, and Virginia, whose new status as possible swing states—and potential for election administration difficulties—have made them newly relevant to our survey. We have broadened the list of issues we are examining, and looked in greater depth at poll worker training and recruitment, student voting rights, and voter education. Other criteria we examine include laws and policies regarding voter registration and statewide databases, voter identification, challenge laws, deceptive practices, provisional ballots, and allocation of voting machines.

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to General Law Related

Ind. Courts - "Juvenile drug court opens in Porter County"

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, the third such court in the state, officially opened Wednesday.

At 2:30 p.m., court and probation officials cut the ribbon to the revamped section of the juvenile center on U.S. 2.

By 3:30 p.m., they were seeing their first case.

"Everyone for many years has thought that a juvenile drug court would be a good thing, but it takes a lot of time and money," Amy Beier, chief juvenile probation officer, said at the opening.

Besides years of work to develop the program, which will take cases of juveniles where drugs or alcohol were a factor out of the juvenile system, the many people involved had to get it approval from downstate first.

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to Indiana Courts

Ind. Gov't. - "Attorney general race a study in opposites"

Bryan Corbin of the Evansville Courier & Press reports today on the two candidates for Indiana Attorney General. The story begins:

INDIANAPOLIS — The two candidates for Indiana attorney general have such different notions of the role that it's almost as if they weren't running for the same job.

After two terms, current Attorney General Steve Carter is not running again. Carter's chief deputy attorney general, Greg Zoeller, is the Republican running to succeed him in the Nov. 4 election. Zoeller wants to build on Carter's accomplishments, but largely would keep with Carter's low-key approach.

The Democratic nominee for attorney general is prominent Indianapolis trial attorney Linda Pence. She says she would shake things up by investigating oil companies for high gasoline prices and assigning the attorney general's office to assist county prosecutors in complicated, multijurisdiction criminal cases. She complains that Carter and Zoeller have not been aggressive enough, and that she would bring a trial lawyer's zeal to the office.

Posted by Marcia Oddi on Thursday, October 09, 2008
Posted to Indiana Government

Wednesday, October 08, 2008

Ind. Courts - Update on the sealing of records in the Clerk of the Courts Office

Readers may recall a series of ILB entries last spring, decrying "the total disappearance of some cases from the Clerk's docket, so that even the fact of their existence is no longer discernible," as stated in this April 3rd post. See also this post from April 2, and this followup from the same day.

Within a few weeks of these posts, all information on juvenile cases, adoptions, termination of parental rights, and perhaps others, had disappeared from the online Clerk's Docket. There was not even a notation that the information about the case was no longer available online.

This has worked a hardship on attorneys, who could not check the status of their cases online. And that is basically what the Clerk's docket is, a list of the counsel in a case, the parties, and a list of dates when filings were made. This has also worked a hardship on anyone who is interested in whether a petition for transfer has been filed in one of these "undocketed" cases -- although the opinion issued by the COA is available, there is no docket, meaning that there is no way to check online to see whether a petition has been filed.

This major change in the Clerk's Docket came as a surprise to some judges on the Court of Appeals, who were still advising attorneys, via opinion footnotes, to check the online docket for the status of their appeals, long after that information had been removed by the Clerk. For instance, this ILB entry from April 30th includes this comment:

NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.

For example, here is an opinion issued last Friday, April 25th, in the case of In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. . The docket number is 49A05-0709-JV-515. The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.

In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.

I had occasion to ask the Clerk of the Courts, Kevin S. Smith, about the docket in early September. I wrote that at some point I planned to write about:
* * * the taking the juvenile cases off the docket entirely. I don't understand the problem with listing the cases, with initials only, along with the information that is contained in the docket - names of attorneys, filing dates, etc.

I've read that you made this decision based on a reading of the public records law. Could you point me to the provisions you believe prohibit the judicial branch from posting the docket information?
Mr. Smith responded:
Sure thing. Please see Admin. Rule 9(G)(1)(b)(i) (which references I.C. 31-19-19-1 et. seq.), and Admin. Rule 9(G)(1)(b)(vi)-(vii) (which reference, among others, I.C. 31-39-1-1 and -2).
Here is IC 31-39-1-1 and 2. Sec. 1 says that "Legal records" subject to this chapter include "(b)(2) index entries." Sec. 2 says in part " All juvenile court records subject to this chapter are confidential and are available only in accordance with IC 31-39-2." IC 31-39-2-8 lists juvenile court records available to the public, and includes "index entries."

Today the Supreme Court has filed two orders that hopefully will put the Clerk's Docket back the way it was. Here are the Orders, which are effective January 1, 2009*: (1) Order Amending Rules of Appellate Procedure (9, 15, 53, and sample form 15-1); and (2) Order Amending Administrative Rules (9 and 10),

See, for instance, the new Adm. Rule 9(G)(4):

(a) Cases in which the entire record is excluded from public access by statute or by rule. In any case in which all case records are excluded from public access by statute or by rule of the Supreme Court,
(i) the Clerk shall make the appellate chronological case summary for the case publicly accessible but shall identify the names of the parties and affected persons in a manner reasonably calculated to provide anonymity and privacy; and

(ii) the parties and counsel, at any oral argument and in any public hearing conducted in the appeal, shall refer to the case and parties only as identified in the appellate chronological case summary and shall not disclose any matter excluded from public access.

I'm not clear, however, about subsection (c), which deals with "Cases in which any public access is excluded by trial court order." Does this mean that in these sealed cases, even the existence of the case on appeal will be sealed -- i.e. a secret docket?

In all cases, however, as provided in subsection (d):

(d) Orders, decisions, and opinions issued by the court on appeal shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, and any other matters excluded from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.
What does all this mean? Hopefully, it means that the entries for juvenile cases, adoptions, termination of parental rights, etc. which were removed from the Clerk's Docket last spring, will be restored as quickly as they were taken down. And it would seem to me that initials, as used before, would be enough -- the Clerk's appellate docket is simply a list of acts done. Thoughts?
_________
*Note that the Court's page listing the orders erroneously indicates (as of this writing) that they are effective Jan. 1, 2008.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Charles Yowler v. State of Indiana , a 7-page opinion, Judge Bradford writes:

Following a bench trial, the trial court convicted Appellant-Defendant Charles Yowler of one count of Resisting Law Enforcement, a Class A misdemeanor, and one count of Disorderly Conduct, a Class B misdemeanor. Yowler challenges the sufficiency of the evidence to support his convictions and claims that the arresting officer‟s conduct was outrageous and should therefore excuse Yowler‟s conduct. We affirm the convictions. * * *

In any event, the evidence most favorable to the trial court‟s judgment indicates that Officer Hacker‟s conduct was not outrageous. At the request of Principal Myers, Officer Hacker served Yowler with the school‟s “bar letter,” conduct the trial court specifically found to be within the scope of her duties. After Yowler became confrontational and failed to follow orders, Officer Hacker slapped Yowler. The evidence indicates that Officer Hacker was acting to protect herself and to effect a lawful arrest. Yowler‟s claim of outrageous conduct is without merit.

NFP civil opinions today (2):

Jack's Wholesale Windows and Design of Hammond, Inc.; et al. v. Mark Flesher, Lakeside Contractor Supply, Inc.; et al. (NFP) - "In this interlocutory appeal, Appellant-Plaintiff Jack’s Wholesale Windows and Design of Hammond, Inc. (“Jack’s”) challenges the trial court’s denial of its motion for sanctions, to compel discovery, for issuance of contempt citation, and entry of judgment against Appellees-Defendants Mark Flesher, Lakeside Contractor Supply, Inc., and James Flamini (collectively, “Defendants”). Upon appeal, Jack’s challenges the trial court’s ruling on several grounds. On cross-appeal, the Defendants claim that this appeal is not properly before this court because it was not timely filed. Concluding that Jack’s has waived its claims on appeal, we affirm. * * *

"Our review of this appeal is fatally impeded by Jack’s’ failure to conform to Indiana Appellate Rules 46(A)(5), (6), and 46(A)(8)(a). Jack’s’ Statement of the Case and Statement of the Facts in its brief is a stream-of-consciousness recitation of alleged events purportedly leading to the instant appeal but unsupported by necessary citation to or documentation in the record. Much of Jack’s’ brief is unaccompanied by record citations, and certain record citations which are included merely refer to Jacks’s’ own petitions containing similarly undocumented assertions. * * * Accordingly, we deem Jack’s’ claims waived and therefore find it unnecessary to address the Defendants’ cross-appeal."

In Re J.S., L.S., and D.S.; Latavia S. v. Elkhart Co. Dept. of Child Svcs. (NFP) - "Latavia Scott (“Scott”) appeals the voluntary termination of her parental rights to J.S., L.S., and D.S. (the “Children”). We affirm."

NFP criminal opinions today (5):

Eric Jackson v. State of Indiana (NFP)

Jermaine D'Shann Dodd v. State of Indiana (NFP)

David Scruby v. State of Indiana (NFP)

Jermel Martin v. State of Indiana (NFP)

Steven Gachett v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides two today

In Kozuszek v. Brewer (ND Ind., Judge Lozano), an 11-page opinion, Judge Williams writes:

Nicole Kozuszek and her brother Wesley Kozuszek, Jr., lived in Porter County, Indiana. On November 4, 2003, the Kozuszeks voted in an Indiana general election, but because of questions surrounding their residence, election officials spoiled (i.e., did not count) their ballots. Now the Kozuszeks have sued two Porter County officials under 42 U.S.C. § 1983, alleging that these officials violated the Kozuszeks’ federal constitutional rights by improperly spoiling their ballots. Because there is no evidence that these officials acted willfully to impair the Kozuszeks’ votes, we affirm the district court’s grant of summary judgment in the officials’ favor. * * *

One final observation. In addition to finding that the defendants had not acted willfully, the district court noted that “[t]here is no evidence that any elected position in [the] election was decided by two or less votes. As such, there can be no real argument that the [spoliation] of these two votes either undermined the election or caused the election to be unfair.” This holding implies that any level of election fraud is fine, so long as the fraud doesn’t impact the final results of an election. But an election is more than just a sum total of votes. It is also about the act of voting—an individual’s ability to express his or her political preferences at the ballot box. An official who willfully interferes with this act violates the Constitution, regardless whether the vote would have affected the election outcome. See Bodine, 788 F.2d at 1271-72. For example, a Democrat whose ballot is willfully spoiled can sue under section 1983 even if she lives in the “reddest” of states (where her candidate will lose) or the “bluest” of states (where her candidate will win regardless of her vote). So we expressly disavow the district court’s reasoning on this point.

III. CONCLUSION, The judgment of the district court is AFFIRMED.

In Lineback v. Spurlino Materials (SD Ind., Cheif Judge Hamilton), a 30-page opinion, Judge Ripple writes:
The Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local No. 716 (“the Union”) filed charges with the National Labor Relations Board (“NLRB”) against employer Spurlino Materials, LLC (“Spurlino”), alleging that Spurlino had committed multiple violations of the federal labor laws. On March 21, 2007, the NLRB’s General Counsel consolidated the charges against Spurlino and issued a formal complaint.

On May 11, 2007, the NLRB’s Regional Director filed a section 10(j) petition in the district court, seeking a preliminary injunction pending adjudication of the charges by the NLRB. See 29 U.S.C. § 160(j). The district court held a hearing on the petition and, on November 8, entered an order enjoining Spurlino from engaging in a number of unfair labor practices. For the reasons set forth in this opinion, we affirm the judgment of the district court.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Indiana Decisions

Courts - "Typos and Errors Lead to Slashed Fees for Attorney"

Shannon P. Duffy of The Legal Intelligencer has a lengthy story today headed "Typos and Errors Lead to Slashed Fees for Attorney" -- here are some quotes:

Attorney Brian M. Puricelli seems to have a knack for making judges [sic].

After winning a jury verdict of $150,000 in a civil rights suit, Puricelli filed a petition for more than $180,000 in attorney fees for himself and his co-counsel, Theodore M. Kravitz, that was riddled with typographical and other sorts of errors.

The sloppy pleading clearly angered Senior U.S. District Judge J. William Ditter Jr., who spent the first three pages of his opinion in McKenna v. City of Philadelphia just describing the errors, adding "[sic]" after each one, and ultimately slashed the fees to about $26,000.

Among the many misspellings flagged by Ditter were "plaintf," "Philadehia," "attoreys," "reasonbale" and "Ubited States." Puricelli also wrote the phrase "mocong papers" where he clearly intended to write "moving papers."

And in the proposed order attached to the motion, Puricelli had evidently cut and pasted from a document in a different case without changing the defendants' names or the dollar figures, leading Ditter to say, "It is suggested that I sign an order which recites the wrong amount of McKenna's judgment and orders three strangers to this action to pay attorneys' fees and costs."

Ditter also noted that Puricelli had misidentified one of the defendants, Andrew Jericho, as "Richard Jericho," and, in the next paragraph, as "Ritchard Jericho." * * *

For Puricelli, the decision was eerily reminiscent of a February 2004 decision by U.S. Magistrate Judge Jacob P. Hart that slashed Puricelli's fees because of court pleadings that were laden with typos and other errors. "Mr. Puricelli's complete lack of care in his written product shows disrespect for the court," Hart wrote in Devore v. City of Philadelphia. "His errors, not just typographical, caused the court a considerable amount of work. Hence, a substantial reduction is in order."

Hart decided to award Puricelli $300 per hour for his courtroom work, saying he was "smooth" and "artful" in securing a $430,000 verdict in the civil rights suit but said he deserved only $150 per hour for his sloppy written work.

In an interview, Puricelli said, "I have my faults," that he relies too heavily on spell-checking software, and that "sometimes I don't proofread enough."

But Puricelli also explained that his original filing, which he agreed was riddled with typos, was the result of a filing error. Using the court's electronic filing system, he said, he had accidentally filed a "draft" version that had not been proofread.

As a result, Puricelli complained that Ditter's opinion was a "cheap shot" because the judge must have known that the amended version, filed just three days later, was the "finished product."

"There were mistakes, but they were caught," Puricelli said.

Puricelli also said he believes he is "singled out" by his opponents and the judges he appears before as a result of Hart's opinion and the attention it garnered.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Courts in general

Courts - "Eli Lilly Settles Zyprexa Inquiries in 32 States for $62 Million"

Updating earlier ILB Lilly Zyprexa entries, Tom Murphy and Marley Seaman of the Associated Press report today in a story that begins:

Drugmaker Eli Lilly & Co. cleared another legal cloud hanging over its top-selling drug Zyprexa when it announced a $62 million settlement Tuesday with several states, including Illinois, but several other storms are still brewing for the anti-psychotic medication.

Lilly agreed to pay 32 states and Washington, D.C., to resolve an investigation into the company's marketing practices.

Attorneys general from several states had accused Lilly of marketing Zyprexa for off-label uses and inadequately disclosing the drug's side effects to health care providers, the same claims made in reams of other litigation against the drugmaker.

Lilly was accused of marketing the drug for pediatric care, for use at a high dose and for the treatment of dementia, according to a statement from the Indiana attorney general's office. Doctors are free to prescribe drugs for uses not approved by the FDA, but drug companies cannot market them for those situations.

The company did not admit wrongdoing in the settlement.

Tuesday's settlement will be divided among the states and the district based on population, said Greg Zoeller, Indiana's chief deputy attorney general. Indiana, for instance, will receive $1.6 million.

Lilly also agreed to several mandates that will last until 2014, well beyond Zyprexa's patent expiration in 2011. The company agreed to avoid making false, misleading or deceptive claims about the drug and not to promote it outside FDA-approved uses.

The drugmaker also agreed to give its medical staff, not the marketing staff, ultimate responsibility for approving the content in "all medical letters and medical references regarding Zyprexa," according to the Indiana attorney general's statement.

Jeff Swiatek of the Indianapolis Star had this story yesterday, including:
The money will be split among 32 states, with Indiana getting $1.6 million for consumer protection purposes and other activities in the attorney general's office.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Courts in general

Courts - "Does the exclusionary rule, which requires the suppression of some evidence produced by police misconduct, still make sense? "

That is the subject of Adam Liptak's story in the NY Times, headed "Justices Weigh Value of a Rule That Limits Evidence ." It begins:

WASHINGTON — The Supreme Court’s Fourth Amendment cases can seem like endless variations on a single sad theme. The police search some luckless soul, his car or both; they find drugs, guns or both; and the defense argues that the evidence should be suppressed.

The court heard two more such cases on Tuesday, and, as usual, the justices struggled to identify clear rules to separate lawful searches from unconstitutional ones.

But these cases were more interesting than usual, thanks to a discussion of a larger theme that has engaged several Supreme Court justices in recent years: does the exclusionary rule, which requires the suppression of some evidence produced by police misconduct, still make sense?

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Courts in general

Ind. Decisions - Transfer sought in fire district case; recusal of Chief Justice requested

The Court of Appeals' Sept.. 2nd opinion in the case of In Ronald Sanders, Paul Hardin, Dallas Kelp, et al. v. Board of Commissioners of Brown Co., In, et al. (see ILB entry here) is the subject of a lengthy story today by Rodney Marqison of the Brown County Democrat. The story reports that the attorney for the five plaintiffs is asking:

* * * the state's highest court to overturn the Indiana Court of Appeals decision upholding the September 2007 creation of the fire district by the county's Board of Commissioners.

In addition, Mr. [Kurt] Young and his clients are asking that Chief Justice Randall T. Shepard recuse himself from the case, based on his participation as co-chair of the Indiana Commission on Local Government Reform, committee established by Governor Mitch Daniels to research the streamlining of local government.

In their request, the plaintiffs cite a footnote in the original ruling by Special Judge Roderick D. McGillivray, the trial court judge in the case, that mentioned Chief Justice Shepard's role on a statewide committee that recommended transferring the fire service responsibilities from township trustees throughout the state to a county's executive and the creation of a countywide body to oversee public safety.

The plaintiffs add that Governor Daniels, through then-Fire Marshal Roger Johnson and others from within the Indiana Department of Homeland Security, have supported the creation of the Brown County Fire Protection District and question Chief Justice Shepard's ability to be impartial in this case, having served as an advocate for the governor's local government reform issues.

The question presented to the Supreme Court is whether or not the Court of Appeals erred when it upheld Judge McGillivray's decision that a county legislative body-specifically, the Board of Commissioners-can create a fire district without first being presented a petition signed by a freeholders within the proposed fire district requesting its establishment.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lake judge earns top grade from state group"

Marisa Kwiatkowski of the NWI Times reports today:

MERRILLVILLE | Lake County Criminal Court Judge Thomas Stefaniak Jr. was named judge of the year by the Indiana Correctional Association.

Stefaniak is scheduled to receive his award Wednesday during the association's 75th annual Fall Conference at the Radisson Hotel in Merrillville.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Still more on: Remote voting sites at issue in Lake County

Updating yesterday's ILB entry, U.S. District Court Judge Joseph Van Bokkelen yesterday vacated Lake County Circuit Court Judge Lorenzo Arredondo's ruling from Monday that the satellite sites be opened. Bill Dolan of the NWI Times reports:

U.S. District Court Judge Joseph Van Bokkelen met Tuesday afternoon with attorneys for county Republican and Democratic officials and issued an order forbidding the opening of early voting satellite offices in the county's three largest cities. Van Bokkelen is scheduled to hear further evidence Friday regarding whether such satellite offices would violate state law by opening. * * *

Democratic officials want the satellite offices in Gary, Hammond and East Chicago immediately opened because they expect a record voter turnout and want to avoid long lines and other impediments to voting by Nov. 4.

But Republicans sued in state and federal court last week to stop the satellite locations from opening, arguing too many early voting locations would strain the county election staff's efforts to stop vote fraud.

The GOP contends state law requires an unanimous bipartisan vote by the election board to establish satellite early voting offices.

The Lake County elections board voted 3-2 last month to open the satellite early voting centers in the Hammond, Gary and East Chicago downtown courthouses. The board's two Republican members dissented.

John Byrne of the Gary Post-Tribune, was had the initial stories on this dispute, reports today:
HAMMOND -- Union leaders joined the president of the Indiana NAACP Tuesday in pressuring Lake County election officials to open remote voting locations in Hammond, Gary and East Chicago.

But the federal judge presiding over the controversy decided Tuesday to take that option off the table -- at least, for now.

Standing outside the Hammond branch of the Lake County Superior Court -- where one of the early in-person absentee voting sites would be located -- state NAACP president Barbara Bolling said voters in the three northern cities are being disenfranchised each day they can't cast ballots at their local clerk's offices.

Currently, early voting is only available in Lake County at the Election Office in Crown Point.

"We believe the citizens of Gary, Hammond and East Chicago have absolutely the right to the same services as the citizens of Crown Point," Bolling said.

Lake County Circuit Court Judge Lorenzo Arredondo ruled Monday that the three sites should be opened immediately, though U.S. District Court Judge Joseph Van Bokkelen had set a hearing on the issue for later this week.

However, federal court records indicate Van Bokkelen vacated Arredondo's order Tuesday during a conference call with attorneys in the case. * * *

The state Election Board says at least 10 Indiana counties -- Porter, LaPorte, Marion and St. Joseph counties, among them -- have instituted satellite early voting for the election.

Lake County Democrats had hoped to open the satellite offices on Monday.

But two Republicans on the Lake County Election Board voted against the sites last month, contending in-person absentee voting makes vote fraud easier.

Their three Democratic counterparts then decided they could institute the early voting centers without GOP support.

The Republicans sued in state court for a temporary restraining order, and the Democrats petitioned to move the case to federal court by arguing the case hinges on federal voting rights.

The hearing before Van Bokkelen had been set for Thursday, but was moved to Friday be-cause one of the attorneys has "health issues," according to federal records.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Courts | Indiana Decisions | Indiana Government

Ind. Courts - Follow-up on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"

Updating this ILB entry from March 16 (which contains links to a number of earlier entries), Tim Evans of the Indianapolis Star reports today:

A Northern Indiana judge, who last year stopped placing girls at the Indianapolis Juvenile Correctional Facility because of concerns about safety and educational programming, has resumed using the state facility.

In an Oct. 3 letter to Gov. Mitch Daniels, St. Joseph Probate Judge Peter J. Nemeth said his decision was based on an audit that showed significant improvements had been made.
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Nemeth stopped sending female juveniles to the facility, formerly known as the Indiana Girls School, in December after an assessment by his staff found the detention center was understaffed and lacked adequate rehabilitative and educational services. He also cited reports of sexual activity between inmates and between inmates and staff.

"A great deal of credit belongs to Commissioner Edwin G. Buss, who has taken an active and leadership role in making significant upgrades at the Girls School," Nemeth said in the letter to Daniels.

Nemeth took his complaints to Daniels after he said attempts to work out problems with former DOC Commissioner J. David Donahue were unsuccessful. Donahue resigned in August and was replaced by Buss.

At the time he stopped placing girls at the center, Nemeth said a review turned up numerous deficiencies, including:

» Inadequate staffing to maintain a safe environment.

» Classroom settings that "can only be described as nonproductive at best."

» The lack of vocational programs.

» The failure by the facility psychiatrist in many cases to adequately explain to inmates why they have been placed on psychotropic drugs, to justify their continued use and to provide a monthly follow-up.

A new evaluation conducted in September found significant improvements in educational services and program supervision, as well as a decrease in overt sexual behavior.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Indiana Courts

Ind. Courts - Still more on: Marion County Judge Hawkins, Master Commissioner Broyles charged by Disciplinary Commission

"Judge faces rare disciplinary hearing: Marion County judge and court commissioner accused of mishandling case of man cleared of rape" is the headline to an Indianapolis Star front-page story today by Jon Murray, updating this ILB entry from yesterday. Today's story begins:

A man sat in prison for nearly two years waiting to be cleared of rape while a Marion County court dragged its heels, mishandled an order that would lead to his freedom and even lost his file.

Even after a judge and his court commissioner realized the mistakes, Harold David Buntin sat behind bars for another six weeks. That was the last of several missteps that launched rare disciplinary proceedings before a panel of three judges from other counties this week.
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"Of the many regrets I have regarding this whole matter, that is one of my biggest ones," former Master Commissioner Nancy L. Broyles said Tuesday about the final delay. "I take full responsibility for that and regret it."

Broyles testified during a two-day hearing in the action against Judge Grant Hawkins, the elected judge overseeing the court where Broyles handled Buntin's post-conviction case.

She avoided a disciplinary hearing after reaching an undisclosed agreement with the Indiana Commission on Judicial Qualifications. The Indiana Supreme Court is the final referee on sanctions, which could include a public reprimand, suspension without pay or removal from office.

The high court metes out sanctions against judges only once or twice a year for violations of the judicial code of conduct, either inside or outside court.

Even rarer is a hearing, like Hawkins', before a three-judge panel, which issues findings and recommends sanctions to the Supreme Court. In Hawkins' action, the panel plans to release its report by Nov. 14.

Posted by Marcia Oddi on Wednesday, October 08, 2008
Posted to Indiana Courts

Tuesday, October 07, 2008

Ind. Courts - Judicial races in Monroe County

Laura Lane reports today ($$$) in the Bloomington Herald Times on a judicial candidates debate. Some quotes:

Most of the questions posed to Monroe County judicial candidates Monday night revolved around the needs of children and the county’s lack of money to provide court-based options that could make a difference in people’s lives once they leave the criminal justice system.

All five candidates participated in a forum at Ivy Tech Community College.

Attorneys Valeri Haughton, a Democrat, and Republican Joby Jerrells are seeking the Circuit Court 6 seat being vacated by Judge David Welch, a Democrat who is not seeking re-election. * * *

In the race for the seat in Monroe Circuit Court 9, Republican Christine Talley Haseman — who was appointed by the governor to fill the new judicial slot at the beginning of the year — is being challenged by Bloomington lawyer Elizabeth Cure, a Democrat. * * *

There is one other judicial race on the fall ballot, for Circuit Court 5: Republican Monroe Circuit Judge Kenneth Todd, first elected to the bench in 1978, is seeking re-election and is unopposed.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Larry W. Newton v. State, a 5-page, 4-1 decision on a direct appeal, with four separate opinions, Judge Dickson writes:

In this direct appeal, defendant Larry Newton appeals the trial court’s order vacating its permission for the defendant to file a belated appeal.1 We find that the trial court correctly re-scinded its order and struck the belated appeal because it lacked authority to grant the defen-dant’s request presented more than thirty days after final judgment. In addition, the defendant fails to present cogent argument as to the issue raised in this appeal. Ind. Appellate Rule 46(A)(8)(a). * * *

As to the issue that is the subject of this appeal, the propriety of the trial court's December 10 order, withdrawing permission and striking the defendant's December 3 request to file a belated appeal of the October 5, 2007 judgment, the defendant fails to present any argument, cogent or other-wise, as required by Indiana Appellate Rule 46(A)(8)(a). We therefore decline to consider this purported appeal. It is ordered that this appeal be dismissed.

Boehm, J., concurs. Shepard, C.J., concurs with separate opinion. Sullivan, J., concurs in result with separate opinion. Rucker, J., dissents with separate opinion.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Ind. Sup.Ct. Decisions

Law - Latham & Watkins represented Eli Lilly in ImClone deal

See the report by Zach Lowe in The American Lawyer.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to General Law Related

Ind. Decisions - More on: Upcoming oral arguments this week

Updating this ILB entry from Monday, Oct. 6, it turns out that all three oral arguments before the Supreme Court Thursday morning, Oct. 9th, WILL be webcast.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Upcoming Oral Arguments

Ind. Courts - More on: Information about appellate jurists on the November ballot

Updating this ILB entry from Oct. 2, a press release posted late yesterday on the Court website, announces: "New Website Allows Voters to Learn About Indiana Supreme Court and Appellate Judges Who Are Up for Retention."

Voters can surf the web to learn about judges who are on the retention ballot in November. A new website has been created to help voters make informed decisions. The site is designed to give voters access to biographical information about the judges and details about the decisions they have made while serving on the bench. * * *

The website is designed to be user-friendly with a number of ways for voters to learn about judges. Visitors to the site can watch appellate cases unfold first-hand. Video of oral arguments are webcast live and later archived. The retention website allows voters to watch those arguments. Voters can also search a database of judicial opinions. Opinions are the written decisions of a case. With the new website, voters will be able to read opinions written by judges on the retention ballot.

Access the Court's Retention Website here.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Indiana Courts | Judicial Retention

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In Indiana Department of Env. Mgmt. v. Steel Dynamics Inc. , a 10-page opinion, Judge Mathias writes:

The Indiana Department of Environmental Management (“IDEM”) appeals the order of the Marion Superior Court reversing the Office of Environmental Adjudication’s ruling in favor of IDEM on its claim that an electric arc furnace dust silo owned by Steel Dynamics, Inc. (“SDI”) was a hazardous waste tank subject to hazardous waste regulations. SDI cross-appeals and claims that the trial court erred in concluding that there was a genuine issue of material fact with regard to whether there had been a release of hazardous waste at the SDI facility. We affirm in part, reverse in part, and remand. * * *

In this comment, the EPA agrees with essentially all of SDI’s current argument, i.e., that EAF dust silos are not hazardous waste tanks subject to RCRA regulation because the EAF dust does not become a hazardous waste until it leaves the silos. Assuming that this is the official position of the EPA, then there is a conflict between how IDEM and the EPA interpret the applicable regulations. SDI argues that since IDEM did not promulgate its own regulations, but simply incorporated by reference the relevant EPA regulations, then EPA’s interpretation should trump that of IDEM. This it seems was the position of the trial court.

However, a state may choose to impose more stringent regulations than those imposed by RCRA, and “‘RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes.’” [ILB -citing opinions from the 3rd and 4th Circuit.] This is not altered by the fact that IDEM simply incorporated the EPA regulations by reference. This incorporation does not, in our opinion, require IDEM to blindly follow the EPA’s interpretation of these regulations. By incorporating these regulations, they became IDEM regulations, and subject to independent IDEM interpretation, just as much as if IDEM had promulgated them itself. [ILB - emphasis added]

As stated above, IDEM’s interpretation of the relevant statutes and regulations is reasonable, and we see no need to further address this issue, regardless of how EPA interprets these regulations, because the EPA simply sets the absolute minimums that must be met. The trial court erred by not accepting the reasonable interpretation of the agency charged with enforcing the statutes and regulations at issue. * * *

Conclusion. The trial court erred in reversing the conclusion of the ELJ that the EAF dust silo was a hazardous waste tank subject to the appropriate regulations. The trial court did not err in agreeing with the ELJ that SDI was not entitled to partial summary judgment. Affirmed in part, reversed in part, and remanded.

ILB note: In other words, IDEM can interpret RCRA regs more strictly than feds.

In Founders Insurance Co. v. Virginia Olivares, et al. , a 14-page opinion, Judge Darden writes:

Issue. Whether the trial court properly concluded that Founders was barred from denying coverage to Farley because he was an “excluded driver” under Vara’s auto insurance policy with Founders. * * *

Here, Founders became aware of the “excluded driver” defense in January 2003 when Olivares sent it a letter asserting that Farley was driving the Cutlass at the time of the December 16, 2002 accident. After Olivares filed her complaint in June 2004, Founders provided defense counsel to Farley and continued to control Farley’s defense up to the time of trial. At no time either before or after Founders assumed Farley’s defense did Founders reserve its right to rely on the “excluded driver” defense. Because there was no proper reservation of rights by Founders as to the “excluded driver” defense, Farley was not aware at the time he accepted defense counsel from Founders that Founders would later deny coverage if it were found that he was the driver of the Cutlass at the time of the accident. In such a situation, Farley could not make an intelligent choice between retaining his own counsel or accepting Founders’ defense counsel. See Royal Ins. Co. v. Process Design Assocs., Inc., 582 N.E.2d 1234, 1239 (Ill. App. Ct. 1991) (noting that a reservation of rights must adequately inform the insured of the rights which the insurer intends to reserve for it is only when the insured is adequately informed of the potential policy defenses that he can intelligently choose between retaining his own counsel or accepting the tender of defense counsel from insurer). Based on this, we conclude as a matter of law that Farley was prejudiced by the denial of his right to control his own defense.

Therefore, the trial court properly concluded that Founders is estopped from denying coverage to Farley because he is an “excluded driver” under Vara’s auto insurance policy with Founders. Affirmed.

Susan Hinesley-Petry v. Thomas S. Petry is a 17-page, 2-1 opinion dealing with these issues:
I. Did the trial court err in finding that the Uniform Gifts to Minors Act (“UGMA”) accounts were sufficient to cover 2007-2008 educational expenses for both children? II. Did the trial court err in limiting the parents’ educational expense obligations to the younger child to those that would be incurred at an in-state, state-supported college? III. Did the trial court err in not entering an order regarding the allocation of educational expenses for the older child for the 2007-2008 academic year? IV. Did the trial court abuse its discretion in not including as an educational expense costs incurred by a twenty-one-year-old child during college breaks?
NFP civil opinions today (1):

Mary J. Ziobron v. Madalyn Kell Squires, M.D., et al. (NFP) - "Concluding that Ziobron failed to present an expert opinion to rebut the medical review panel’s unanimous decision and that negligence cannot be inferred under these facts, we affirm the summary judgment order. Additionally, concluding that neither award of attorneys’ fees is warranted, we deny both requests for appellate attorneys’ fees."

NFP criminal opinions today (2):

State of Indiana v. Rodney Brown (NFP) - "The State of Indiana appeals the grant of Rodney Brown’s motion for discharge pursuant to Indiana Criminal Rule 4(B). The sole issue raised on appeal is whether the trial court erred in granting Brown’s motion for discharge. * * *

"Brown was incarcerated because of the federal detainer lodged against him, and he was therefore under the sole authority of the federal court. Accordingly, Criminal Rule 4(B) was no longer applicable to Brown. Thus, we conclude that the trial court erred in granting Brown’s motion for discharge. Reversed and remanded for further proceedings."

Desmond Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Marion County Judge Hawkins, Master Commissioner Broyles charged by Disciplinary Commission

Updating this ILB entry from April 10th, the Indianapolis Star has a brief item today:

A two-day hearing will conclude today in the disciplinary action against a Marion Superior Court judge over his court's delayed handling of an exonerated man's case.

Harold David Buntin was released from prison in April 2007, as long as two years after a commissioner in Judge Grant Hawkins' court signed an order granting post-conviction relief. DNA evidence had cleared Buntin of rape.

Earlier this year, the Indiana Commission on Judicial Qualifications filed nearly a dozen charges against Hawkins and Master Commissioner Nancy L. Broyles. The filings alleged that the court was in disarray, that Buntin's file was missing, that the original order was lost and that Hawkins and his staff members made misleading statements.

Broyles, now retired, has signed an undisclosed agreement with the commission and may testify today in Hawkins' action. It is being heard by a panel of three active or retired judges, who could recommend sanctions to the Indiana Supreme Court next month.

Here is an ILB list including some earlier stories.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Indiana Courts

Ind. Decisions - "Kokomo strip club wins fight over liquor license"

The Indiana Court of Appeals' Sept. 30th not-for-publication decision in the case of Indiana Alcohol and Tobacco Commission v. Ultimate Place, et al. (NFP) (see ILB brief summary here - 5th case) is the subject of AP story which appears in several news outlets today, including here at WTHR.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judicial race in Delaware County

Rick Yencer reports today in a story in the Muncie Star-Press that begins:

MUNCIE -- Restoring confidence and credibility in the local criminal justice system weighs heavily on Republican Delaware Circuit Court 4 Judge John Feick, who oversees drug forfeiture cases, and veteran Deputy Prosecutor Diane Frye, a Democrat who hopes to unseat the incumbent judge on Nov. 4.
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"People have lost confidence in the system, and we are trying to restore that," said Feick, 57, the son of a German immigrant, and a former member of the Muncie Community School Board.

Frye, 54, the granddaughter of a Polish immigrant, has a legal career that spans 26 years as a deputy prosecutor, a former deputy in the Indiana Attorney General's office, practicing civil law and working as a college professor.

"Judges must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system," said Frye, who is quick to point out she never handled forfeiture cases under current Prosecutor Mark McKinney or his predecessor, Richard Reed.

The Delaware County court system has been clouded by investigations into McKinney's alleged mishandling of forfeiture cases, Circuit 5 Court Judge Wayne Lennington leaving the bench amid a criminal investigation and ex-county Prosecutor MIchael Alexander facing trial for conspiracy to commit bribery in a witness-tampering case.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Indiana Courts

Ind. Courts - Lake judge criticizes county policies that are affecting the services of his East Chicago courtroom

Marisa Kwiatkowski of the NWI Times reports today in a story that begins:

EAST CHICAGO | Lake County Superior Court Judge Calvin Hawkins on Monday criticized county policies that are affecting the services of his East Chicago courtroom.

The judge spoke Monday afternoon on One Year Later -- the anniversary of his appointment to the struggling East Chicago bench.

Hawkins is the only judge in the East Chicago courthouse, which has suffered from historically low case filings and was targeted for closure. Since Hawkins assumed the bench, filings have doubled and tripled from the number of filings a year ago.

Hawkins reiterated Monday his opposition to the random filing system that the civil courts will begin next year. He argued judges have specific expertise in certain areas and maintained attorneys should have the right to select who will hear their cases.

The bulk of Hawkins' speech focused on inefficiencies, staffing concerns and problems in his courthouse.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Indiana Courts

Courts - More on "Kentucky Prosecutor says plea deal punishes philanthropist Robert Clarkson in DUI case"

Updating this ILB entry from Sept. 28th, Deborah Yetter of the Louisville Courier Journal reports today:

A wealthy Louisville insurance executive charged in a drunken driving accident that injured a motorcyclist in June could wind up with a much stiffer sentence than the 30 days of home incarceration he was offered in a plea agreement.
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Jefferson County Attorney Mike O'Connell asked a judge yesterday to throw out the plea agreement that O'Connell's office made with Robert Clarkson, calling it "unacceptable."

O'Connell -- who was appointed to the job in August, after a deal was struck -- said in an interview that reducing Clarkson's charges of felony assault and DUI to careless driving, a minor traffic offense, and DUI is too lenient and "fundamentally flawed."

As part of the deal, Clarkson was to serve 30 days of incarceration at his Anchorage home. If convicted of the assault charge, Clarkson could receive five to 10 years in prison.

O'Connell appeared in court yesterday to argue for his motion to have the judge reject the plea agreement.

Jefferson District Judge Kevin Delahanty -- who had been scheduled to sentence Clarkson yesterday -- scheduled a hearing for Nov. 7 to hear arguments on the matter.

Neither Clarkson, 67, nor his lawyer, Steve Miller, could be reached yesterday.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Courts in general

Ind. Decisions - More on: Remote voting sites at issue in Lake County

Well, now three judges are involved: (1) Lake Superior Court Judge Calvin Hawkins - who granted a restraining order last Friday morning preventing the Lake County election board from opening three satellite voting centers; (2) U.S. District Court Judge Joseph Van Bokkelen - who, according to a Gary Post-Tribune story Friday, "convinced the political antagonists to cease hostilities for the weekend after attorneys for the Democratic Party agreed not to launch early in-person voting Monday morning in Clerk's Offices in Gary, Hammond and East Chicago" and set a federal court hearing on a TRO for this coming Thursday; and (3) Lake County Circuit Court Judge Lorenzo Arredondo, who yesterday, according to this report today by Piet Levy of the Post-Tribune, "ruled that the sites be opened, contrary to a decision by Lake Superior Court Judge Calvin Hawkins' decision Friday that the satellite early voting offices not be allowed to open Monday."

More from today's story:

CROWN POINT -- The ongoing political feud over early voting centers took a new twist Monday when a Lake County judge ordered the mandatory opening of early voting sites in East Chicago, Gary and Hammond -- three days before a scheduled hearing on the same subject in U.S. District Court. * * *

It remains to be seen how effective Arredondo's ruling will be, however, considering that U.S. District Court Judge Joseph Van Bokkelen has scheduled a hearing for Thursday on the early voting sites. On Friday, Van Bokkelen ruled "there is no state temporary restraining order" -- effectively voiding Hawkins' order -- and set the Thursday hearing date.

On Monday, attorney James Wieser filed a new lawsuit in Lake County Circuit Court against the Lake County Board of Elections, claiming that having early voting sites in the county's three largest cities is the only way to make sure the elections are free and equal -- a staple of the state constitution. * * *

Observers say the issue may come down to an interpretation of state law and whether the federal government has jurisdiction in the matter.

See this ILB entry from Oct. 5 for background, including links to the federal docket and documents from Judge Hawkins' court.

More information comes from the blog Progress Illinois (sponsored by the SEIU Illinois State Council), which reported last evening in this entry that "the federal court has moved their hearing up from Thursday to tomorrow morning." Which would be today.

Posted by Marcia Oddi on Tuesday, October 07, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Courts | Indiana Decisions | Indiana Government

Monday, October 06, 2008

Ind. Decisions - Transfer list for week ending Oct. 3, 2008

Here is the just issued transfer list for the week ending Oct. 3, 2008. It is 2 pages long.

One transfer was granted last week. It is discussed in this ILB entry from Oct. 1.

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, October 06, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP); Tax Court issues one

For publication opinions today (3):

In Hank Johnson, Jr. v. American Classic Mortgage Corporation, Milton Booth, Dennis Hayes, and Jocelyn Tandy, a 6-page opinion, Judge Crone writes:

Hank Johnson, Jr., appeals the judgment in favor of American Classic Mortgage Corporation (“American Classic”) on his counterclaim seeking damages arising from American Classic’s alleged violation of Indiana Code Section 23-2-5-20. Johnson raises two issues, which we consolidate and rephrase as follows: Whether the trial court’s judgment in favor of American Classic and against Johnson on his counterclaim is clearly erroneous. We reverse and remand for further proceedings. * * *

Specifically, he contends that that the trial court erred in concluding that he was required to prove by a preponderance of the evidence that American Classic intentionally violated Indiana Code Section 23-2-5-20. We agree.

Indiana Code Section 23-2-5-15 contains no scienter requirement.3 It is undisputed that American Classic filed a lawsuit against Johnson claiming that he owed it a five-percent commission for obtaining a loan for him, that the loan was never closed, and that it took a default judgment against Johnson for $35,000. These facts establish that American Classic violated Indiana Code Section 23-2-5-20.4 Indiana Code Section 23-2-5-15 clearly provides that any person who violates Chapter 5 is liable to any person damaged by the violation. Accordingly, the trial court erred in entering judgment in favor of American Classic and against Johnson on his counterclaim.

We therefore reverse the judgment of the trial court and remand to determine the amount of actual damages, interest, and attorney’s fees to which Johnson is entitled as a result of American Classic’s violation of Indiana Code Section 23-2-5-20.

In Cornelius Cooper v. State of Indiana , a 13-page opinion, including a 7-page opinion "concurring in result', Judge May writes:
Cornelius Cooper’s probation was revoked after a hearing at which the trial court did not receive evidence. He presents one issue on appeal: whether the trial court erred in denying his motion to reconsider. We reverse and remand for a new probation revocation hearing. * * *

We find Cooper is entitled to a probation revocation hearing because the court deprived Cooper of his right to due process. We reverse the trial court’s denial of the motion to reconsider and remand for a probation revocation hearing. Reversed and remanded.

In Michael Rotz and Sue Rotz v. State of Indiana , an 8-page opinion, Judge May writes:
Michael A. Rotz and Sue Rotz appeal the denial of their motion to suppress. They argue the probable cause affidavit was insufficient to permit issuance of the search warrant. We affirm and remand for trial. * * *

In this case, the police found Michael had a criminal history that included arrests for drug offenses and observed the Rotzes’ house windows were covered. This information gave the police more than a “hunch” that the Rotzes were growing marijuana, and provided a sufficient basis for the issuing magistrate to conclude the police had reasonable suspicion to search the Rotzes’ trash. We affirm and remand for trial.

NFP civil opinions today (2):

Duneland Sand Inc., et al v. Kevin Misch, et al (NFP) - "Under the circumstances, we cannot say that the trial court abused its discretion in denying the motion for joinder or the motion for substitution. See Dunson v. Dunson, 769 N.E.2d 1120 (Ind. 2002) (noting that joinder must be raised before or during trial court proceedings)."

Robert D. Jackson, Jr., et al v. Interstate Fire and Casualty Company (NFP) - "Because the insurance policy at issue excludes automobile liability coverage whether the automobiles are owned by the insured or its subcontractors, we affirm the trial court’s grant of summary judgment."

NFP criminal opinions today (7):

Kelly Jo Ezra v. State of Indiana (NFP)

Timothy A. Anderson v. State of Indiana (NFP)

Byron Breaston v. State of Indiana (NFP)

Brian L. Schultz v. State of Indiana (NFP)

Stephen Lynn Pentecost v. State of Indiana (NFP)

Jarod Chafin v. State of Indiana (NFP)

Cory Bailey v. State of Indiana (NFP)

Tax Court for publication opinions today (1):

Indiana Dept. of State Revenue, Inheritance Tax Division v. The Estate of Virgil J. Miller - Judge Fisher writes:

The issue the Court must decide is whether the probate court abused its discretion in granting the Department’s motion for an extension of time to file its notice of appeal with this Court under Trial Rule 72(E). * * *

In concluding that the probate court rendered a final appealable judgment during the April 25, 2006 hearing, the Court must also conclude that the Department had actual knowledge of the judgment, as it was rendered in the Department’s presence. Consequently, the probate court abused its discretion in granting the Department an extension of time to file its notice of appeal under Trial Rule 72(E) because the Department had actual knowledge of the final judgment prior to requesting an extension of time to perfect its appeal. See T.R. 72(E) (limiting the grant of an extension of time to a “party who was without actual knowledge”) (emphasis added). See also Smith v. Deem, 834 N.E.2d 1100, 1110 (Ind. Ct. App. 2005) (concluding that a party is not entitled to an extension of time when the party has notice of the trial court’s ruling before its entry into the Record of Judgments and Orders (RJO)) (citations omitted), trans. denied.

For the above stated reasons, the Court REVERSES the probate court’s order granting the Department an extension of time to file its notice of appeal. Therefore, the Department’s appeal is DISMISSED.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In Burrus, et al. v. State Lottery Commission (SD Ind., Judge Barker), a 13-page opinion, Judge Manion writes:

Plaintiffs, seven former employees of the State Lottery Commission of Indiana, which does business under the name Hoosier Lottery (hereinafter “Lottery”), sued their former employer under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. They claimed that they were fired because of their race. The Lottery moved to dismiss the plaintiffs’ § 1981 claims on the basis that it was a state agency and therefore entitled to sovereign immunity pursuant to the Eleventh Amendment. The district court denied the Lottery’s motion, and we affirm. * * *

This appeal presents only one issue: whether the Lottery is entitled to assert state sovereign immunity under the Eleventh Amendment to defeat the plaintiffs’ § 1981 claims. Our review of that issue is de novo. Wisconsin v. Ho- Chunk Nation, 512 F.3d 921, 929 (7th Cir. 2008) (noting that a grant or denial of sovereign immunity is reviewed de novo). * * *

The Lottery is not entitled to sovereign immunity because it is not an arm of the state. We therefore AFFIRM the decision of the district court denying the Lottery immunity from the plaintiffs’ 42 U.S.C. § 1981 claims.

Well worth reading.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Ind. (7th Cir.) Decisions

Courts - "Consumer Issues Top Supreme Court's Docket"

Nina Totenberg of NPR had a great 7:45 minute preview of the Supreme Court term this morning, on Morning Edition. Listen to it, or read the transcript, here.

For details of today's arguments, check SCOTUSLaw.com here.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Courts in general

Ind. Law - Greenwood and Bargersville are trying to avoid bringing a judge into annexation dispute

Jason Thomas reports today in the Indianapolis Star in a story that begins:

BARGERVILLE, Ind. -- The lines have been drawn in a battle over prime suburban land in Johnson County, as officials of two neighboring municipalities search for common ground.

A crucial decision expected tonight could determine the path of the latest annexation tussle to hit Central Indiana. Bargersville and Greenwood officials remain confident as they hammer out their differences at the negotiation table rather than risk a costly showdown in front of a county judge.
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At stake is valuable land in development-ripe White River Township. In question is whether the two sides can avoid a lengthy court battle like those that have plagued communities such as Carmel and Fishers in Hamilton County.

In the middle are township residents reluctant to choose a side as they mull the future of the state's largest unincorporated area.

"I believe the fact that we are talking is a positive," said Greenwood City Councilman Bruce Armstrong. "We would always rather negotiate than have the courts have to be involved."

With a possible showdown in Johnson County Superior Court looming, Bargersville and Greenwood, which is nearly 20 times larger, are in talks over how to divide a 2,200-acre chunk of unincorporated land.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Indiana Law

Ind. Law - "It's the law: Some weapons are illegal to have"

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on getting weapons that are illegal to possess. It begins:

Two people -- both armed with guns and knives -- could get pulled over by police. But why would one of them get arrested while the other was let go?

The answer is in the fine print of Indiana law.

Indiana law allows people to carry handguns with a state-issued permit, and long guns or knives without a permit.

But Indiana law makes it illegal to carry a handgun without a permit, and it's illegal to possess a sawed-off shotgun, machine gun or switchblade knife.

Porter County police Lt. Chris Eckert said possession of a handgun without a permit is the most commonly violated weapons law, followed by possession of a switchblade knife and possession of a sawed-off shotgun.

Although it is also illegal to possess items like Chinese throwing stars, bombs and weapons of mass destruction, police officers rarely come across such weapons, Eckert said. As for machine guns, people can have them with a proper federal permit, Eckert said.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Indiana Law

Ind. Courts - Judicial race in Spencer County

Libby Keeling reports in the Evansville Courier & Press in a story that begins:

The Spencer County prosecutor and a Rockport, Ind., attorney in private practice are vying for the position of judge of the Circuit Court, 84th Judicial District.

Prosecuting Attorney Jon A. Dartt, a Democrat, and attorney Jefferson A. Lindsey, a Republican, are seeking the seat vacated by Judge Wayne Roell, who is retiring with more than 30 years on the bench.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Indiana Courts

Law - "Legal professionals shed light on mental illnesses"

Deborah Yetter of the Louisville Courier Journal reports today in a story that begins:

By last year, University of Louisville law professor James T.R. Jones was about to reveal publicly a secret he feared could be a career-killer -- his severe mental illness.

At the same time, Jefferson Circuit Judge Susan Gibson was grieving over the suicide of her husband, a veteran prosecutor who believed seeking help for depression would ruin him professionally.

And on the West Coast, University of Southern California law professor Elyn Saks was about to stun her colleagues with a book revealing her lifelong struggle with severe schizophrenia.

This month, the three will appear in Louisville -- Jones and Gibson today and Saks, on Oct. 26 -- at two events sponsored by the local National Alliance on Mental Illness.

Once unknown to each other, the three legal professionals say they now are linked by a common desire to go public with deeply personal stories in hopes of shedding more light on the shadows of mental illness.

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to General Law Related

Ind. Law - The Indiana Law Blog's Legislative Research Shortcuts

I've created a new resource for those doing Indiana legislative research, The Indiana Law Blog's Legislative Research Shortcuts.

I believe those of you who do legislative research will find this new resource to be extremely useful, and timesaving. Drop me a note and tell me what you think.

And don't forget the complete history of the Indiana Code of 1971, announced in this ILB entry from August 4th. (Note: I may be able to provide of searchable version of this history on CD, if there is interest.)

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Oct. 9th:

9:00 AM - State v. Chad Arnold - The Marion Superior Court ordered the police to expunge Arnold's arrest record, see Ind. Code section 35-38-5-1, and the Court of Appeals affirmed in State ex rel. Indiana State Police v. Arnold, 881 N.E.2d 1105 (Ind. Ct. App. 3/11/2008), vacated. (See ILB summary here.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for State: David L. Steiner, Indianapolis, IN. Attorney for Arnold: Jason Glenn Reyome, Indianapolis, IN.

9:45 AM - Tony Gray v. State of Indiana - Following a jury trial in the Clark Circuit Court, Gray was convicted of robbery and confinement as Class B felonies pursuant to Indiana Code §35-42-5-1 and 35-42-3-3 ("while armed with a deadly weapon"). The Court of Appeals affirmed in a memorandum decision, Gray v. State, No. 10A01-0708-CR-356 (Ind. Ct. App. Jun. 6, 2008), vacated. (COA opinion here.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorneys: For Appellant: Jeffrey D. Stonebraker, Jeffersonville, IN; For Appellee: Jodi Kathryn Stein, Indianapolis, IN.

10:30 AM - Richard Pendergrass v. State of Indiana - The St. Joseph Superior Court admitted several exhibits and related testimony concerning DNA test results over the defendant’s objection that the evidence constituted hearsay under Indiana Evidence Rule 803 and violated his Sixth Amendment right to cross-examine witness under Crawford v. Washington, 541 U.S. 36 (2004). The Court of Appeals affirmed in Pendergrass v. State, 889 N.E.2d 861 (Ind. Ct. App. 7/8/2008), vacated. (See ILB discussion here.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorneys: For Appellant: Jeffrey E. Kimmell, South Bend, Indiana; For Appellee: J. T. Whitehead, Indianapolis, Indiana

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, Oct. 8th:

9:00 AM - Jerry M. and Patti A. Weida vs. City of West Lafayette - The Weidas appeal the trial court's Order determining that they violated certain provisions of the West Lafayette City Code relating to the occupancy of rental property. They present six issues for our review, ranging from the trial court's interpretation of the City's ordinance to the trial court's award of costs in favor of the City of West Lafayette. The Scheduled Panel Members are: Judges Riley, Bailey and Bradford. [Where: Indiana Court of Appeals Courtroom] [Note: for much more on this case, see this ILB entry from Oct. 4th.]

Posted by Marcia Oddi on Monday, October 06, 2008
Posted to Upcoming Oral Arguments

Sunday, October 05, 2008

Ind. Decisions - Remote voting sites at issue in Lake County [Updated]

John Byrne reported Saturday in the Gary Post-Tribune:

HAMMOND -- Lawyers for the major political parties spent Friday battling in state and federal court over a plan by Lake County Democrats to open satellite voting centers in three Democratic strongholds.

U.S. District Court Judge Joseph Van Bokkelen convinced the political antagonists to cease hostilities for the weekend after attorneys for the Democratic Party agreed not to launch early in-person voting Monday morning in Clerk's Offices in Gary, Hammond and East Chicago.

Van Bokkelen scheduled a hearing for Thursday morning on a Republican request for a temporary restraining order to stop the satellite offices from opening.

If Van Bokkelen does not grant the restraining order, the Democrats plan to open the remote voting sites Friday.

The Democratic-controlled Lake County Election Board voted 3-2 on Sept. 23 to allow early voting at the Clerk's Offices.

Both Republicans voted against the move, and party representatives contend it required a unanimous vote. * * *

Democratic lawyer Fred Work characterized the dispute as a federal voting rights issue for residents of Lake County's poorer northern end who may have trouble getting to Crown Point, the only place in the county where early in-person voting now is allowed.

"I think everyone in this room knows what this is about," Work said. "This is designed to allow people in the more affluent southern end of the county to vote absentee."

The issue's import -- to both political parties -- was evidenced by all the out-of-area legal talent in court Friday.

The Democrats countered [Republican attorney David Brooks of Indianapolis] by bringing in attorneys Terrence Truax and Gabriel Fuentes from the downtown Chicago law firm Jenner & Block to represent Lake County Clerk Thomas Philpot during the federal hearing.

The hearing in Van Bokkelen's court came after Lake Superior Court Judge Calvin Hawkins granted the restraining order during a morning hearing in East Chicago.

Hawkins carried through with the hearing even though he knew the case had been assigned to Van Bokkelen in the afternoon and that any ruling he made likely would be voided when the issue reached federal court.

He was right.

"There is no state temporary restraining order," Van Bokkelen declared as the federal proceedings got under way.

But Hawkins could yet play a part in the saga, as Brooks plans to argue the federal court has no jurisdiction to hear a case which he contends hinges entirely on interpretation of state statutes.

For commentary on the dispute, see this item from Progress Illinois.

[Updated 3:13 PM] Here is the federal docket, the notice of removal, complaint.pdf, tro motion. Also, Lake County Judge Hawkin's TRO.

Posted by Marcia Oddi on Sunday, October 05, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Government | Indiana Law

Courts - Tomorrow is "First Monday in October" and SCOTUS convenes

Adam Liptak's story in the NY Times is headed "Justices Return to Less Meaty Docket ." Here is a quote from the long story:

Perhaps the most significant cases of the term involve pre-emption, a doctrine that can bar state-court lawsuits over products that met federal safety standards and one that has repeatedly occupied the Roberts court. The doctrine is in some tension with the Rehnquist court’s attentiveness to state’s rights, which had been known for a time as the “federalism revolution.”

“Corporate America has discovered that they would much rather be regulated by one government in Washington than by 50 state governments, or by the most aggressive of them,” said Kathleen M. Sullivan, a law professor at Stanford and a Supreme Court advocate.

The court will also return to an emerging theme of the Roberts court, which has repeatedly turned back general, or “facial,” challenges to laws in favor of more focused, or “as applied,” attacks.

“The one trend that has emerged most clearly from the first three years of the Roberts court is a certain skepticism about facial challenges,” Paul D. Clement, who was until recently the solicitor general of the United States, said at a recent briefing at the United States Chamber of Commerce. That theme will be further explored this term in a case involving environmental regulations.

David G. Savage's story in the LA Times is headed "This time, Roe vs. Wade really could hang in the balance." It begins:
Every four years, defenders of abortion rights proclaim that the fate of Roe vs. Wade hangs on the outcome of the presidential election.

This year, they may be right.

Through most of the 1990s and until recently, the Supreme Court had a solid 6-3 majority in favor of upholding the right of a woman to choose abortion. But the margin has shrunk to one, now that Justice Sandra Day O'Connor is retired and has been replaced by Justice Samuel A. Alito Jr.

And Justice John Paul Stevens, a leader of the narrow majority for abortion rights, is 88.

Posted by Marcia Oddi on Sunday, October 05, 2008
Posted to Courts in general

Ind. Decisions - 'In God We Trust' License Plate Case set for Oct. 14

DePauw University News reports:

A high-profile case involving Indiana's "In God We Trust" license plate will bring the Indiana Court of Appeals to DePauw University on Tuesday, October 14. As part of its outreach efforts, the Court will hear oral arguments in the case of Mark Studler v. Indiana Bureau of Motor Vehicles at 10 a.m. in Walden Inn Social Center. Members of the DePauw University and Putnam County communities are invited to attend. Normal courtroom rules of decorum will apply.

Studler "is challenging Indiana Code section 9-18-24.5-1, which authorizes a speciality license plate featuring an 'In God We Trust' design," notes a summary of the case. "The Indiana Bureau law gavel.jpgof Motor Vehicles offers the 'In God We Trust' plate at no additional charge. Studler, who paid a $40 administrative fee to obtain an environmental specialty plate, contended that providing the 'In God We Trust' plate for no fee violates Article I, section 23 of the Indiana Constitution. Both parties filed motions for summary judgment in the trial court; Studler's motion was denied and the BMV's motion was granted as a final judgment. Studler appeals the grant of summary judgment to the BMV."

A three-judge panel of Michael P. Barnes, Margret G. Robb and Terry A. Crone (DePauw '74) will hear the case. Each side will each be given twenty minutes to argue their case. Often, the judges will ask questions during the presentations. The panel of judges will take the arguments under advisement and issue an opinion at a later date.

After the hearing, the public will have an opportunity to ask questions of the judges. However, due to the Code of Judicial Conduct, the judges will not be able to answer specific questions about the case -- only general inquiries about the legal system. The judges will also be available for photographs.

Posted by Marcia Oddi on Sunday, October 05, 2008
Posted to Upcoming Oral Arguments

Ind. Courts - Judicial races in Vanderburgh and Vigo counties

Vanderburgh County - Libby Keeling has a story today in the Evansville Courier & Press that begins:

Two local magistrates who have previously taken aim at Vanderburgh County judgeships and a political novice are vying for the seat of retiring Vanderburgh Superior Court Judge Scott R. Bowers.

Vanderburgh Circuit Court Magistrate David D. Kiely, 45, Superior Court Magistrate Jill R. Marcrum, 47, and Deputy Prosecuting Attorney Michael J. Perry, 46, are facing off in the nonpartisan race.

Vigo County - Deb Kelly of the Terre Haute Trib-Star reports in a lengthy story:
Both candidates for Judge of Vigo County Superior Court Division 5 say the top issues of the court include funding for the drug court program and efficient disposition of cases on the court’s packed docket; but the two differ on whose experience best matches those challenges.

Daniel W. Kelly, Republican, said he thinks his experience as a trial attorney for 20 years as well as a deputy prosecutor makes him the best candidate. He also states that his legal experience is broader.

Kelly, 47, states that he has nearly twice as many years of experience as Democratic challenger Michael Rader.

Rader, 57, has been practicing law for more than 11 years, and has been a practicing physician for 32 years.

Rader says he has more life experience and professional experience on both the medical and legal side of addiction — a primary component of the drug court program housed in Division 5.

Posted by Marcia Oddi on Sunday, October 05, 2008
Posted to Indiana Courts

Environment - Still more on: Major pipeline break near Indiana border

Updating this ILB entry from August 17th, Len Wells of the Evansville Courier & Press reports in a story that begins:

GOLDEN GATE, Ill. — The amount of crude oil that leaked onto a remote Southern Illinois farm when a crosscountry pipeline ruptured Aug. 10 was significantly more than the amount reported initially by Marathon Oil Co. officials.

When a 20-inch-diameter crude oil pipeline that runs from Patoka, Ill., to Cattletsburg, Ky., ruptured, officials with Marathon Oil Co. told news reporters the spill amounted to 5,000 barrels, or 210,000 gallons.

However, memos sent from the scene to Illinois EPA headquarters in Springfield reveal the spill amounted to 5,790 barrels, or 243,180 gallons. The corrected figures were based upon meter readings taken from the Patoka, Ill., tank farm and the next downstream pumping station located at Owensboro, Ky.

The documents released by the state EPA in response to an open records request further reveal that after gate valves were closed upstream from the spill site, approximately 10 miles of pipeline had to be drained before recovery work could be completed. The pipeline rupture created a crater 45 feet wide and 60 feet long. During the initial response to the spill, officials misidentified the spill site as being in Edwards County, near Albion, and alerted the Edwards County Sheriff of the incident. The actual spill site was in Wayne County, northwest of Golden Gate.

Posted by Marcia Oddi on Sunday, October 05, 2008
Posted to Environment

Ind. Gov't. - "Attorney general candidates outline plans"

Lesley Stedman Weidenbener of the Louisville Courier Journal has a long article today on the race for Indiana attorney general. It begins:

Voters have a clear choice in this year's race for state attorney general between a candidate who works in the office and is seeking to enhance its duties and an opponent who wants to make extensive changes.
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New Albany native Greg Zoeller, the Republican, is already the No. 2 man in the attorney general's office, overseeing day-to-day operations and serving as point person on key cases and policy.

He promises if elected to continue Attorney General Steve Carter's fight against telemarketers, to work toward similar protections against e-mail solicitations and to defend teachers challenged for imposing discipline in the classroom.

"There will probably be similarities," said Zoeller, 53. "I think Attorney General Carter has been remarkably successful. There are things I will probably do differently, but they might have been the same if Carter would have done a third term."

But Democrat Linda Pence, an Indianapolis attorney and former branch chief at the Justice Department, believes the office is doing too little to protect consumers, children and crime victims and sees a broader role for its 140 attorneys.

She proposes to get more involved in local prosecutions, creating specialists to help with cases such as child seduction and drugs. And as attorney general, she promises to launch more state investigations, including explorations of child deaths and national gasoline pricing.

"What I want to do is really re-establish priorities," said Pence, 58. "You can have lawyers working on things to me that are more significant than others. I know when I get in there, there's going to be a number of areas where I'm going to shift priorities around."

Posted by Marcia Oddi on Sunday, October 05, 2008
Posted to Indiana Government

Saturday, October 04, 2008

Courts - "Castroneves: 'I am not guilty'" [Updated]

Here, via Access Hollywood, is a copy of the 22-page federal indictment filed Oct. 2 in the Southern District of Florida, against race drvier/dancer Helio Castroneves.

Here is the story, reported by Curt Cavin in today's Indianapolis Star.

[Updated at 7:47 PM] In case you would prefer an indictment without "Access Hollywood" stamped all over it, here is a link in this press release from the United States Attorney's Office for the Southern District of Florida. The release summarizes the seven counts of the indictment.

Posted by Marcia Oddi on Saturday, October 04, 2008
Posted to Courts in general

Ind. Courts - Two cases before COA involving West Lafayette's application of city occupancy ordinances

Last Tuesday, Sept. 30th, the COA heard oral arguments in the case of Bowden vs. City of West Lafayette, Indiana (see ILB entry here). Among the issues listed in the case - "the City's claim that the Bowdens violated city zoning ordinances by allowing too many tenants in one residential unit".

Next Wednesday, Oct. 8th, a different COA panel will hear arguments in the case of Weida vs. City of West Lafayette, where, according to the Court summary "The Weidas appeal the trial court's Order determining that they violated certain provisions of the West Lafayette City Code relating to the occupancy of rental property."

Sophia Voravong of the Lafayette Journal & Courier reports today on the latter case, in a story headlined "Occupancy legal fight draining for city, landlords." (The Bowden case is also discussed.) Some quotes:

For Patti Weida, one of her largest tasks as a rental property owner catering largely to Purdue University students is staying in line with West Lafayette's occupancy ordinance while still maintaining her tenants' privacy.

Short of snooping and asking for identification, she said it's difficult to differentiate between who is only visiting and those staying in a residence illegally.

"I want someone to tell me how to go about this," Weida said. "I've gotten no guidance from the city. Basically, it takes up a great deal of time and accounts for a lot of stress."

On Wednesday, Weida's attorney, William Kealey, will argue before the Indiana Court of Appeals about West Lafayette's ordinance that allows only up to three unrelated people to live together in areas zoned residential.

It is one of three ongoing civil disputes over suspected code violations by landlords.

Though a Tippecanoe County judge ruled in favor of the city in the three civil complaints, all the property owners appealed to the state's higher court. * * *

Last year, $273,664.29 was spent to fight the court battles, according to clerk-treasurer Judy Rhodes. It was more than was spent on code enforcement in the past five years.

Rhodes said $134,000 was allotted in the 2008 budget for code enforcement because of the still-pending cases. City attorney Eric Burns said Friday that no similar lawsuits have been filed this year. * * *

The civil complaint against the Weidas accused them of allowing five women to live in a home at 112 Sylvia St. Weida said they have countersued the women.

Kealey, her attorney, said the appeals court will have to decide what the city's ordinance actually says and whether it was properly applied during the Weida's bench trial before Tippecanoe Superior Court 2 Judge Thomas Busch.

"The focus will be on the fact that the Weidas prohibited overoccupancy," Kealey said. "The ruling by the court acknowledged that. The students admitted at trial that they did not have permission to do what they did."

Earlier this week, Lafayette attorney Fred Meessen argued before the appeals court for his clients, Edward and James Bowden. A ruling has not yet been issued.

Edward Bowden said Thursday that he had no choice but to appeal because he cannot afford to pay the fines ordered.

"What happened to me could be repeated, victimizing potentially hundreds of people," he said. "Anyone living in Tippecanoe County could -- without a proper trial, a prior injunction, or any kind of notice whatsoever -- be held liable for tens of thousands of dollars in fines because they bring home some of their work, work part-time from home, or rent out a room in their home in West Lafayette."

The Bowdens were accused of allowing more than three people to live in a home at 810 N. Grant St. from Aug. 1, 2006, to July 15, 2007.

An ILB entry from Oct. 28, 2007 discussed the Weida case at trial, quoting an earlier Voravang story. The entry ended with the ILB observation that the case touched on two interesting issues:
The first appears to be the duty of the city to make available to its citizens the legal requirements they are expected to follow.

The second is the issue of local ordinances in Indiana limiting the number of unrelated people who may live together. This issue is often raised in college towns (see this table), and our Supreme Court has issued a ruling on it (Dvorak v. City of Bloomington - 9/23/2003).

Posted by Marcia Oddi on Saturday, October 04, 2008
Posted to Upcoming Oral Arguments

Ind. Courts - More on: "Group calls for merit selection of Lake County judges"

Updating this ILB entry from Oct. 2nd, Patrick Guinane of the NWI Times reports today:

INDIANAPOLIS | An envoy of Lake County officials told a legislative panel Friday that depoliticizing the selection of four county judges would facilitate cost-cutting the General Assembly has mandated through new state property tax caps.

Lake County Commissioner Roosevelt Allen, D-Gary, said moving the four county division judges under the merit selection process in place for most Lake County Superior Court judges would help the county's effort to trim its public defender payroll by more than $600,000. Overall, the county is eyeing $15 million in cuts to next year's budget.

"We are forced to make our county more efficient and more effective," Allen told the Legislature's Commission on Courts.

Judge John Pera, who was appointed, and Judge Julie Cantrell, who is running for re-election as a Democrat, said the disparate selection systems make it difficult for elected judges to share resources with the apolitical appointed judges.

"I can't even lend a bailiff to Judge Pera for a week when he goes on vacation because my employees can be political, and his employees cannot based on the code of judicial conduct," Cantrell told the legislative panel.

Lake and St. Joseph are the only Indiana counties in which most Superior Court judges are nominated by a panel of lawyers and civilians, appointed by the governor and stand for nonpartisan retention votes every six years.

Pera said the late Adam Benjamin, a former region legislator and congressman, believed merit selection would become "the model for the entire state" when he sponsored 1973 legislation that ended elections for most Lake County judges. Cantrell and the three other division judges handle small claims and criminal cases involving potential prison sentences of less than three years.

Indiana Supreme Court Justice Robert Rucker, who is chairman of Lake County's judicial nominating panel, said merit selection has been effective in bringing qualified women and minorities to the bench. Allen said Lake County had all white judges three decades ago but now has six women and five black people on the bench.

The Lake County envoy asked the Commission on Courts, a study panel, to recommend 2009 legislation allowing Cantrell and the other division judges to stand for nonpartisan retention votes in the future if the Legislature expands merit selection to their courts. No action was taken Friday.

Posted by Marcia Oddi on Saturday, October 04, 2008
Posted to Ind. Trial Ct. Decisions

Environemnt - Great Lakes Compact now law

From the AP. From the Gary P-T. From the NWI Times.

See list of many earlier ILB entries here.

Posted by Marcia Oddi on Saturday, October 04, 2008
Posted to Environment

Friday, October 03, 2008

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

Updating this ILB entry from Sept. 29th, my copy of the printed NY Times today has a page 1 story by Erik Eckholm headlined "License to abandon children in a law meant to save them." The online version has a different headline and location - Section A, p. 21. Some quotes from the long story:

In total last month, 15 older children in Nebraska were dropped off by a beleaguered parent or custodial aunt or grandmother who said the children were unmanageable.

Officials have called the abandonments a misuse of a new law that was mainly intended to prevent so-called Dumpster babies — the abandonment of newborns by young, terrified mothers — but instead has been used to hand off out-of-control teenagers or, in the case of the father of 10, to escape financial and personal despair.

The spate of abandonments has prompted an outcry about parental irresponsibility and pledges to change the state law, which allows care givers to drop off children without fear of prosecution. But it has also cast a spotlight on the hidden extent of family turmoil in the country and what many experts say is a shortage of respite care, counseling and especially psychiatric services to help parents in dire need.

Posted by Marcia Oddi on Friday, October 03, 2008
Posted to General Law Related

Law - Judge orders Michigan to Allow Wine Shipping by Out-of-State Retailers [Updated]

Dan & Krista Stockman, authors of Uncorked - A column for those who want to love wine, but don't know how, that appears weekends in the Fort Wayne Journal Gazette, wrote this morning:

Marcia, MichWine.com is reporting on a federal wine-shipping case there, this one involving retailers. As you may have noticed, all the fuss, legislation and decisions since Granholm have involved only wineries shipping their own products, not retailers.

This case would not directly affect Indiana wine lovers, because Indiana does not allow even in-state retailers to ship to consumers using third-party shippers (the Michigan case was based on the Granholm principal that prohibiting out-of-state retailers from shipping while allowing in-state is unconstitutional), though Indiana does allow retailers to deliver purchases themselves. But I do believe you will be seeing more of these cases, and it presents yet another crack in the door.

We'll be writing about the decision at some point soon, but thought you would want to know about it.

Here is the story from MichWine. It begins:
Federal Judge Denise Page Hood has ordered the state of Michigan to allow wine retailers nationwide to ship directly to state residents.

The ruling, dated September 30, comes from a U.S. District Court case in Detroit that asserts Michigan beverage laws are unconstitutional because they let in-state wine retailers ship to state residents, but don't accord the same right to retailers in other states.

In granting the Plaintiffs' motion for Summary Judgment, Judge Hood ruled that "State regulations such as this are not authorized by the Twenty First Amendment if the regulations create an extra burden on out-of-state wine retailers."

Thanks also to MichWine for posting Judge Hood's opinion.

The Specialty Wine Retailers Association has issued a release dated Oct. 3, headed "Consumers Win Access to Wine with Federal Court Ruling--Ban On Out-of-State Retailer Shipping into Michigan Ruled Unconstitutional." It begins:

SACRAMENTO, Calif., Oct 03, 2008 (BUSINESS WIRE) -- The Specialty Wine Retailers Association (SWRA) applauded a Federal District Court ruling that for the second time this year ruled that it is a violation of the U.S. Constitution for a state to prohibit their consumers from having wine shipped to them from out of state retailers when the state permits shipments from in-state retailers. The latest judgment against protectionist state wine laws came in a Michigan Court on September 30 in the case of Siesta Village Market v. Granholm. It followed on the heels of a decision in a Texas Federal Court earlier this year that struck down the same type of protectionist legislation in Texas.
[Updated 10/7/08] Here is a story in the AP by David Eggert on the Michigan ruling.]

Posted by Marcia Oddi on Friday, October 03, 2008
Posted to General Law Related

Law - A lone dissenter in Indiana weighed in against SEC rule change

A reader has pointed me to an intriguing reference in a NY Times story today by Stephen Labaton that is headlined "Agency’s ’04 Rule Let Banks Pile Up New Debt ." From the story [emphasis added by ILB]:

Many events in Washington, on Wall Street and elsewhere around the country have led to what has been called the most serious financial crisis since the 1930s. But decisions made at a brief meeting on April 28, 2004, explain why the problems could spin out of control. The agency’s failure to follow through on those decisions also explains why Washington regulators did not see what was coming.

On that bright spring afternoon, the five members of the Securities and Exchange Commission met in a basement hearing room to consider an urgent plea by the big investment banks.

They wanted an exemption for their brokerage units from an old regulation that limited the amount of debt they could take on. The exemption would unshackle billions of dollars held in reserve as a cushion against losses on their investments. Those funds could then flow up to the parent company, enabling it to invest in the fast-growing but opaque world of mortgage-backed securities; credit derivatives, a form of insurance for bond holders; and other exotic instruments.

The five investment banks led the charge, including Goldman Sachs, which was headed by Henry M. Paulson Jr. Two years later, he left to become Treasury secretary.

A lone dissenter — a software consultant and expert on risk management — weighed in from Indiana with a two-page letter to warn the commission that the move was a grave mistake. He never heard back from Washington. * * *

In letters to the commissioners, senior executives at the five investment banks complained about what they called unnecessary regulation and oversight by both American and European authorities. A lone voice of dissent in the 2004 proceeding came from a software consultant from Valparaiso, Ind., who said the computer models run by the firms — which the regulators would be relying on — could not anticipate moments of severe market turbulence.

“With the stroke of a pen, capital requirements are removed!” the consultant, Leonard D. Bole, wrote to the commission on Jan. 22, 2004. “Has the trading environment changed sufficiently since 1997, when the current requirements were enacted, that the commission is confident that current requirements in examples such as these can be disregarded?”

He said that similar computer standards had failed to protect Long-Term Capital Management, the hedge fund that collapsed in 1998, and could not protect companies from the market plunge of October 1987.

Mr. Bole, who earned a master’s degree in business administration at the University of Chicago, helps write computer programs that financial institutions use to meet capital requirements.

He said in a recent interview that he was never called by anyone from the commission.

“I’m a little guy in the land of giants,” he said. “I thought that the reduction in capital was rather dramatic.”

The ILB has accessed a copy of Mr. Bole's letter.

Posted by Marcia Oddi on Friday, October 03, 2008
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In David King v. State of Indiana , a 6-page opinion, Judge Vaidik writes:

David King appeals his six-year sentence to be served in the Department of Correction for Class B felony dealing in cocaine. Specifically, he contends that his sentence is inappropriate because it does not contain a mental health component. Because King’s inappropriate sentence analysis contains references to the abuse of discretion standard, we take this opportunity to clarify that inappropriate sentence claims and abuse of discretion claims are to be analyzed separately. Concluding that King’s sentence is not inappropriate, we affirm. * * *

King contends that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B) because it does not “include any sort of mental health component.” Appellant’s Br. p. 7. However, interspersed within King’s inappropriate sentence argument are references to the abuse of discretion standard. See id. at 6, 7. We are troubled by this. As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Not for publication opinions reveal that other practitioners are making this same mistake. We therefore take this opportunity to clarify that an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant. [emphasis added by ILB]

NFP civil opinions today (1):

Michelle White v. International School of Indiana (NFP) - "The International School of Indiana (“the International School”) filed a complaint in Marion Circuit Court against Michelle White (“White”) to recover the full amount of tuition due for the 2004-2005 school year. The trial court rejected White’s argument that the enrollment agreement executed between the parties was nonbinding, and entered judgment in favor of the International School. White appeals and argues that the trial court erred in its interpretation of the contract. We affirm. * * *

"In this case, the $600 deposit, the condition precedent, was for the benefit of the International School because the deposit was an advance payment of tuition. The International School waived that condition as an accommodation to White’s financial condition and allowed White to enroll her child. Thereafter, both parties proceeded under the remaining terms of the contract. The School’s waiver of the condition benefited White. Consequently, the School’s failure to require the deposit prior to enrollment did not result in a forfeiture of the contract. We therefore conclude that the trial court did not
5
err when it determined that, pursuant to the enrollment agreement, White was obligated to pay the full amount of tuition due for the 2004-2005 school year, attorney fees and costs. Affirmed."

NFP criminal opinions today (9):

Robert Maul v. State of Indiana (NFP)

Ricky L. Angel, Jr. v. State of Indiana (NFP)

Lisa M. Fish v. State of Indiana (NFP)

A.T.D.-H. v. State of Indiana (NFP)

Adam Shumpert v. State of Indiana (NFP)

Harvey Williams, Jr. v. State of Indiana (NFP)

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

Elijah Armes II v. State of Indiana (NFP)

Ernest Johnson, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 03, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - July 2008 Indiana Bar Exam

Here is the 5-page, double-column, single-spaced list of those successful.

Posted by Marcia Oddi on Friday, October 03, 2008
Posted to Indiana Government

Thursday, October 02, 2008

Environment - "EPA cites BP for Clean Air Act violations" [Updated 10/3/08]

So reports Gitte Laasby of the Gary Post-Tribune in a breaking story that begins:

BP began its Whiting expansion project three years before being granted the proper permit, the U.S. Environmental Protection Agency reported Thursday.

Beginning construction before receiving the right permit is a violation of the Clean Air Act.

“EPA now has information suggesting that BP may have begun a project to process Canadian crude oil at the refinery in 2005 without the proper permit,” EPA said in a press release Thursday.

Here is the EPA news release, dated Oct. 2:
CHICAGO (Oct. 2, 2008) - U.S. Environmental Protection Agency Region 5 has issued an amended notice and finding of violation to the BP Products North America for alleged Clean Air Act violations at the company's petroleum refinery at 2815 Indianapolis Blvd., Whiting, Ind.

The action amends a notice and finding of violation issued to the BP Whiting refinery in November 2007 alleging BP violated the Clean Air Act by failing to get a permit when it modified one of its cracking units in 2005.

EPA now has information suggesting that BP may have begun a project to process Canadian crude oil at the refinery in 2005 without the proper permit. BP received its construction permit for the project from the Indiana Department of Environmental Management on May 1, 2008.

These are preliminary findings of violation. BP has 30 days to request a meeting with EPA to discuss resolving the allegations.

[Updated 10/3/08] Stories today in the Gary Post-Tribune and the NWI Times.

[Updated 10/7/08] See this editorial in today's Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Environment

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

For publication opinions today (1):

In Joshua Perez-Grahovac v. State of Indiana , a 13-page opinion on an interlouctory appeal, Judge Barnes writes:

[Issue] Whether collateral estoppel precluded the trial court from denying Perez-Grahovac’s motion to suppress evidence. * * *

Perez-Grahovac contends that the trial court erred in denying his motion to suppress evidence. He specifically argues that the State was collaterally estopped from contending that the search of 2213 East Spring Street was proper because the Floyd Superior Court had previously determined in Phillips’ case that the search was improper and that any evidence seized as a result of the search should be suppressed. * * *

Here, Perez-Grahovac has not shown he is entitled to the use of collateral estoppel. The only portions of the record from Phillips’ case that Perez-Grahovac provided to the trial court and to this Court are the CCS and Phillips’ motion to suppress. The CCS reflects that the Floyd Superior Court granted Phillips’ motion to suppress, but because the trial court did not make findings of fact or conclusions of law, this gives us little insight into why the court granted Phillips’ motion. The transcript of the January 5, 2007 suppression hearing in Phillips’ case could have provided some clues as to why the Floyd Superior Court granted Phillips’ motion to suppress, but Perez-Grahovac has failed to provide this. Nor has Perez-Grahovac provided the charging information or any other pleadings or evidence from Phillips’ case. Perez-Grahovac has failed to provide a record from which we can determine what evidence was presented in Phillips’ case. Without this, we cannot determine whether in Phillips’ case the Floyd Superior Court could have based its decision upon an issue or fact other than that which Perez-Grahovac seeks to foreclose from consideration here. The appellant bears the burden “to present a record that is complete with respect to the issues raised on appeal, and this burden includes a duty to ensure that the court has a transcript of the appropriate trial proceedings.” Because Perez-Grahovac has not presented a complete record, he has not shown that the trial court abused its discretion in failing to allow him to invoke the use of collateral estoppel. * * *

Perez-Grahovac has not shown that the trial court abused its discretion in denying his motion to suppress. The trial court’s order denying Perez-Grahovac’s motion to suppress is therefore affirmed.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of A.D.W. and A.N.W.; and Leasa W. v. Child Services of Vanderburgh County (NFP) - "Appellant-respondent Leasa Wedding appeals the trial court’s denial of her motion for continuance and motion for parenting services from appellee-petitioner, Department of Child Services of Vanderburgh County (DCS). In addition, Wedding appeals the trial court’s judgment terminating her parental rights with regard to her two children, A.D.W. and A.N.W. Specifically, Wedding argues that the denial of her motions violates the Americans with Disabilities Act1 and that DCS failed to establish the requirements of Indiana Code section 31-35-2-4(b)(2) by clear and convincing evidence as required to terminate her parental rights. Finding no error, we affirm the trial court’s judgment."

Deanne Thompson Stull v. Larry L. Thompson Revocable Trust, Derek Thompson, and Vicki Thompson Craver (NFP) - "There is enough evidence in the record to create a genuine issue of material fact as to whether Derek had a confidential relationship with his father, Larry. Derek lived only eight houses away from Larry. Despite Derek and Vicki being Estate representatives and trustees of the Trust, Larry gave only to Derek the directions of how to handle the Trust assets. In fact, Vicki was not aware that the Trust existed until after Larry’s passing. Based on these facts, the determination of the existence of a confidential relationship between Derek and Larry should be left to the fact finder.

"In addition to this question of fact, the fact finder will be faced with the factual issue of determining the true content of Larry’s directions to Derek and whether Derek agreed to carry them out. Because these genuine issues of material fact exist, summary judgment was not appropriate. We therefore reverse and remand for further proceedings."

In the Matter of T.H., J.H., and J.B. v. Lake Co. Dept. of Child Services (NFP) - "Therefore, we find that the elements necessary to sustain the termination of Mother’s parental rights have been established by clear and convincing evidence."

NFP criminal opinions today (6):

Oswaldo Mendoza v. State of Indiana (NFP)

Dale Beaver v. State of Indiana (NFP)

Victor Jackson v. State of Indiana (NFP)

Yolanda G. Thompson v. State of Indiana (NFP)

Phillip Herron v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - "Prof. Amy Applegate honored with 2008 Women in the Law Award"

From an IU release today that begins:

BLOOMINGTON, Ind. -- Amy Applegate, clinical professor and director of the Family and Children Mediation Clinic at the Indiana University School of Law--Bloomington, will be honored today (Oct. 2) with the 2008 Women in the Law Recognition Award.

The award is presented by the Indiana State Bar Association to a female attorney in the state who has contributed to the legal profession as a whole or to a particular area of practice.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Indiana Law

Courts - "Campaign-finance reform urged for Michigan Supreme Court races"

Lynn Turner reports in the Kalamazoo Gazette:

KALAMAZOO -- More than $20 million has been spent in Michigan Supreme Court races since January 2000, and in some cases it's impossible to tell where the money came from, the executive director of a nonpartisan watchdog organization said Wednesday.

The campaign donations raise questions about whether court candidates, once elected, play favorites with large campaign contributors, said Rich Robinson, of the Michigan Campaign Finance Network.

"The current system is an incubator for conflicts of interest," Robinson told about 50 people at Western Michigan University's Little Theater during a session sponsored by the League of Women Voters. * * *

The American Bar Association recommended in 2007 that campaign contributions to judges or justices be considered as grounds for disqualification from handling cases involving the contributors, Robinson said. Although 18 states, including Ohio and Indiana, implemented that rule, Michigan has not, he said.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Courts in general | Indiana Courts

Environment - "An Increasingly Environmental Term"

That is the heading of an entry by Jonathan Adler on The Volokh Conspiracy that lists and discusses six grants so far.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Environment

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

Updating this ILB entry from Sept. 30th, Lydia X. McCoy has a follow-up today in the Evansville Courier & Press:

BOONVILLE, Ind. — Donning face masks, gloves and protective suits, Warrick County officials spent most of Wednesday going through volumes of moldy county records stored in the former Carquest building just off Boonville Square.

Officials were determining what could be destroyed and what needed to be salvaged.

"Everything that we are getting rid of (Wednesday) is either on computer or is a duplicate of something that is being kept some place else," said Warrick County Clerk Shannon Weisheit. "These are just records that the county has kept for years and years. It would be really expensive to reproduce them and clean them up, and they are of no historical value." * * *

Some of the "finds" of the day included an original plat map for the Rose Hill Cemetery in Newburgh from 1940, the treasurer's records of receipts from 1899 that determined how much taxes were that year and a ledger of receipts also from 1940.

And while the records may have been old, they weren't of historical value — only things the state says must be kept for a certain period of time, county officials have said.

(ILB - The last two paragraphs appear to be at odds.)

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Indiana Government

Ind. Decisions - "Courts are tending to side with faculty members who seek unemployment payments when their contracts are terminated through no fault of their own"

The Indiana Supreme Court's June 17th decision in the case of Indiana State University v. William C. LaFief and IDWD (Review Bd.) - see ILB entries here and here, is the subject of a commentary by Nicolas M. Manicone in The Chronicle of Higher Education that begins:

A case that the Indiana Supreme Court recently ruled on dealt with the question of whether a professor whose fixed-term contract expires becomes unemployed on a voluntary or involuntary basis.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Attorney wants new venues after judge allegedly curses client"

Shawn McGrath of the Anderson Herald Bulletin reports in a story that begins:

An Anderson attorney wants a new venue for five criminal cases after a judge used an expletive to describe one of his clients during a court hearing and purportedly entered into plea negotiations with the defendant without him being present.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Indiana Courts

Law - "Registration lawsuits could shape election"

Tim Jones has an interesting story today in the Chicago Tribune that begins:

In a furious, multistate campaign raging far from television cameras and cable TV chatter, scores of lawyers are arguing over the voting rights of perhaps millions of Americans who plan to cast ballots in the presidential election.

This is the courtroom campaign beneath the presidential campaign, fought in politically strategic states including Ohio, Florida, Wisconsin and others. The outcome of battles over voter registration, absentee ballots and the integrity of state voting lists could prove to be decisive in states where the margin of victory is expected to be slim.

"Voter registration is likely to be the issue of the 2008 election season," said Daniel Tokaji, an election law specialist at Ohio State University Moritz College of Law.

The legal battles come as millions of previously disinterested Americans, most of them Democrats energized by the primary contest between Sens. Barack Obama and Hillary Clinton, have registered to vote in November's election. With Democrats emboldened by large gains in voter registration and Republicans relying on an effective get-out-the-vote machine, the election could turn on pre-election arguments over who is allowed to vote.

Some of the current clashes are partisan, but many of them involve politically unaffiliated groups that have long been active in voting rights debates—the American Civil Liberties Union, the League of Women Voters and the Brennan Center for Justice at New York University School of Law.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to General Law Related

Ind. Courts - Information about appellate jurists on the November ballot

At the Commission on Courts meeting August 28th, as noted in this Sept. 1st ILB entry:

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.
This website is now available, although apparently has not yet been announced. Access it here. I expect the announcement will come shortly, as absentee voting begins Monday, Oct. 6th.

Here is the website the ILB created in 2006 to provided needed information on the judges running for retention in the 2006 election. Check out the section of that website headed "Voting to Retain or Reject Indiana Appellate Judges and Justices," which links to several Res Gestae articles I have written explaining that "voters need information about judges' records in order to make informed decisions and to make the retention vote meaningful." Included is this quote from the 2005 article:

As shown in the tables, in 2006 one Supreme Court justice and five Court of Appeals judges will be up for retention, should they so choose. In 2008, as the facts stand now, the Tax Court judge, one Court of Appeals judge and three Supreme Court justices may be on the ballot. It is up to the state and local bar associations, the media, and the League of Women Voters and similar civic groups, to start now to assure that the citizenry will have the information they need to make their votes on retention meaningful.
The new Court site on those up for retention in 2008 contributes to meeting this need. The information will be enhanced when the Indiana State Bar Association evaluations are available. But more information is needed, such as newspaper articles featuring appropriate questions to the judges, so that voters may compare and contrast the answers.

And the ILB hopes to add, within the next few days, an "at a glance" table of relevant information about the candidates for retention.

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Indiana Courts | Judicial Retention

Ind. Courts - "Group calls for merit selection of Lake County judges"

John Byrne of the Gary Post-Tribune reports:

Representatives of the Lake County Bar Association and local officials will testify Friday before the state Commission on Courts to explain why County Division judges in Lake County should be chosen by merit, rather than popular election.

Critics of elected judges have argued the four County Division judges -- Nicholas Schiralli, Julie Cantrell, Jesse Villalpando and Sheila Moss -- maintain large, expensive staffs of public defenders to help finance their re-election campaigns.

Some also say the judges' appearance of impartiality is compromised by the fact they must be elected.

Cantrell herself will testify about the need to change to a merit system, where judges are selected by a local panel from a list of nominees submitted by the governor.

Bill Dolan of the NWI Times reports:
Scott Yahne, president of the Lake County Bar Association, said Wednesday his organization, which represents many of the county's lawyers, supports including the four courts in the county's merit selection system, which ensures judges' decisions will be independent of political influence.

Lake County is one of two counties in the state in which most Superior Court judges are nominated by a panel of lawyers and lay people and appointed to office by the governor. They face the voters every six years in nonpartisan retention-rejection referendums.

Here is the agenda for tomorrow's meeting of the Commission on Courts. On the agenda, in addition to "(3) Merit selection of judges of the Lake Superior Court County Division," is another item, "(2) Selection of judges in St. Joseph County."

This should be interesting, as the Lake group is urging that the remaining judges in Lake County be made merit, while in the only other county in Indiana with merit selection of judges, the Commission on Courts is charged with considering:

D. Whether judges in St. Joseph County should be selected by election or appointment and if the selection process is changed, how should it be changed and how should the changes be implemented (SEA 329-2008 - SEC. 25, p. 23)

Posted by Marcia Oddi on Thursday, October 02, 2008
Posted to Indiana Courts

Wednesday, October 01, 2008

Ind. Decisions - 7th Circuit issues Illinois election decision that references Indiana

In Allan J. Stevo v. Keith et al, a decision just posted by the 7th Circuit, "in typescript", and argued 9/25/08, which deals with the number of signatures required to get one's name on the November 2008 general ballot as an independent candidate for the U.S. House of Representatives from Illinois’s Tenth Congressional District, which encompasses parts of Lake and Cook Counties, Judge Posner writes:

But the plaintiff argues that Illinois’s disparate treatment of the two types of district shows that a 5 percent minimum is arbitrary, at least in Illinois. He is using the 5,000‐signatures provision of the law just to show that if it is good enough in newly redistricted districts, it is good enough in all districts. * * *

Suppose the Indiana approach, whereby disaggregation of votes to the precinct level in the preceding election enables the same percentage to be required in districts that have recently been redistricted and districts that have not been, is indeed a compellingly superior approach; nevertheless the plaintiff would not have standing to urge its adoption. The Indiana approach is a solution to the problem of determining previous voter turnout after a redistricting, and the Tenth Congressional District is not a newly redistricted district. So the plaintiff is forced to argue that a uniform rule requiring 5,000 signatures (or a slightly higher number, provided it is below the number of valid signatures he was able to obtain) is so far superior to the present system that the Constitution requires that it be substituted for it. That is wrong, given the disparity in voter turnout in the different districts. We have just seen that requiring a number rather than a percentage may well be a bad feature of Illinois’s treatment of elections in recently redistricted districts; the plaintiff urges us to impose that quite possibly inferior method in all elections, rather than, as at present, in just the elections in newly redistricted districts.

We warned in Crawford v. Marion County Election Board, 472 F.3d 949, 954 (7th Cir. 2007), affirmed, 128 S. Ct. 1610 (2008), against federal judicial micromanagement of state regulation of elections. * * * But the appeal in this case fails on a more basic level: the change the plaintiff asks us to make in the Illinois voting system might well make that system more arbitrary than it already is. AFFIRMED.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court grants one transfer this week

The formal transfer list will not be out until next Monday, but the ILB has just received notice that the case of Brandon Stanley v. Danny Walker was granted transfer yesterday, Sept. 30th.

See the ILB summary from June 3rd (4th case), where Judge Darden stated the issue as:

Whether the trial court improperly relied on Indiana’s collateral source statute as the basis for excluding Stanley’s proffered evidence of write-offs to Walker’s medical bills, offered to rebut Walker’s medical records, which omitted written-off charges and indicated that Walker had incurred greater medical expenses than he actually had.
The conclusion:
Based upon the foregoing, we conclude that fundamental notions of tort law, surviving policy justifications of the common law collateral source rule, and concerns of equity warrant the finding that write-offs secured by insurance companies for the benefit of their insureds, constitute insurance benefits for which the plaintiff or the plaintiff’s family has paid directly, and therefore, must be excluded from consideration when calculating the extent of the injured party’s pecuniary loss. Affirmed.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - More on yesterday's COA decision in the BMV ID rules case

The COA decision yesterday in the case of In Joel Silverman, Commissioner of the Indiana Bureau of Motor Vehicles v. Miguel Villegas, Betty Doe, et al., is the subject of a story today by Eric Berman of WIBC. The story is headlined "State must pay legal fees because procedural error briefly invalidated ID rules."

Toughened BMV requirements to prove your identity before getting a driver's license withstood a court challenge -- but the state still must pay $112,000 to three illegal aliens who challenged the rules.

The immigrants filed a class-action suit in 2002, contending stricter ID requirements were unconstitutional. They lost that claim, but the Indiana Court of Appeals ruled in 2005 the BMV had violated notice requirements in imposing the rule. The BMV fixed the procedural error in 2006.

When you get sued and lose, you generally have to pay legal fees. The state argued since it won the main point, it shouldn't have to pay. A 2-1 appeals court disagrees.

This is the case where the COA held identification requirements put in place by the BMV invalid because they were, according to the ruling: "not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”), Indiana Code § 4-22-2 et seq. Because the requirements were not promulgated in accordance with the ARPA, they are void and without effect." See this Aug. 12, 2005 ILB entry.

To correct this problem, the BMV had to start over and go through the entire rulemaking process, designed to ensure procedural due process. This took a number of months, including a public hearing. See this ILB entry from Sept. 10, 2005 re the details.

On March 10, 2006 the Supreme Court dismissed the BMV's transfer petition as moot, according to this ILB entry.

Next followed the current case to collect attorney fees. The write-up for the July 8th oral argument states:

This case follows Villegas v. Silverman, 832 N.E.2d 598 (Ind. Ct. App. 2005). The Bureau of Motor Vehicles' ("BMV") identification requirements were challenged by illegal aliens. After this court held that the BMV had to comply with rulemaking procedures to adopt identification requirements and remanded to the trial court, the BMV properly promulgated identification rules. The trial court on remand granted summary judgment to the plaintiffs because the previously-challenged identification requirements were void. The trial court then granted the plaintiffs' motion for attorney fees in excess of $100,000 upon finding that they were "prevailing parties" for the purpose of 42 U.S.C. § 1988. Joel Silverman, in his official capacity as Commissioner of the BMV, appeals the trial court's award of attorney fees. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and Judge Robb.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Ind. App.Ct. Decisions

Courts - Many new cases added to docket by SCOTUS today

From SCOTUSLaw:

The Court also added ten new cases to its decision docket for the year; most of these are likely to be heard in January or February. (All available certiorari-stage filings are available here.)

Among those ten, seven involved issues of criminal law.

The other three cases raised issues about requiring all companies who had some role in dumping polluting wastes to pay the full costs of clean-up, when that liability could be split up among them (Burlington Northern v. U.S., 07-1601, and Shell Oil v. U.S., 07-1607, consolidated for briefing and argument), about the federal government’s duty to help Indian tribes protect their mineral resources (U.S. v. Navajo Nation, 07-1410), and about the authority of the state of Hawaii to sell lands without resolving claims to that land by native Hawaiians (Hawaii v. Office of Hawaiian Affairs, 07-1372).

Read the details from SCOTUSLaw.

See also this page from the SCOTUSLaw Wiki for details on the individual cases.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Courts in general

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):

Robert Brantley, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Why It Mattered That Lincoln Was a Lawyer"

A free 1.5 hour CLE offered by the Indiana Supreme Court this Friday, Oct. 3, from 3-4:30. Or you can view it online, with no CLEs. Either way, info here.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Indiana Courts

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

Updating this ILB entry from Sept. 26th on the appointment of counsel for indigent defendants, where I commented:

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.
I have received the following from a reader with indisputable credentials:
Be aware that the appointment of counsel requirement in Indiana is even more stringent when dealing with alleged delinquent children, i.e.:
31-32-4-2. Delinquent children -- Other children.

(a) If:

(1) a child alleged to be a delinquent child does not have an attorney who may represent the child without a conflict of interest; and

(2) the child has not lawfully waived the child's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);

the juvenile court shall appoint counsel for the child at the detention hearing or at the initial hearing, whichever occurs first, or at any earlier time.

(b) The court may appoint counsel to represent any child in any other proceeding.

The same is true by statute in termination cases:
31-32-4-3. Termination proceedings -- Other proceedings.

(a) If:

(1) a parent in proceedings to terminate the parent-child relationship does not have an attorney who may represent the parent without a conflict of interest; and

(2) the parent has not lawfully waived the parent's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);

the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time.

(b) The court may appoint counsel to represent any parent in any other proceeding.

Further, caselaw requires appointment of counsel in contempt situations even if the contempt proceeding is brought by a private person rather than by the state:
"we hold that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing." In re Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987)

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Indiana Courts

Ind. Law - "When deadly force is justified"

Francesca Jarosz of the Indianapolis Star writes today on the Indiana law justifying the use of deadly force. Some quotes:

The Indiana law that justifies use of deadly force for people defending themselves, their home or others in danger is seldom used, but this week's case involving a Northwestside family brings it to the spotlight.

Sunday, Robert McNally put a chokehold on a naked intruder. The man died, and McNally faces no charges.

Law enforcement officials said McNally's actions were merited by the law, which does not require people to back away before defending themselves or someone else from serious bodily injury or a forcible felony.

Indiana is like 22 other states, mostly in the Midwest and South, that since 2005 have strengthened deadly force laws to ensure that crime victims could not be prosecuted for rightfully defending their family or home. * * *

Henry Karlson, a retired professor of law at Indiana University, said it doesn't appear that McNally used deadly force because it wasn't foreseeable that his actions could cause death. But Karlson and other experts agree that even if he had, the use of deadly force would be merited.

The right to self-defense has been in existence in Indiana since the state's constitution was drafted, Karlson said. It was expanded to include the right to defend a third person in the 1970s.

In 2006, Indiana lawmakers strengthened the law to state that a person can use deadly force without first trying to back away from danger. Rep. Eric Koch, R-Bedford, who wrote the bill, said it was implemented to assure crime victims that they can defend themselves without fearing prosecution or a lawsuit.

"What we were doing is really expressing the intent of the Second Amendment," Koch said. "(People) can be confident of their rights."

Though there is no movement to expand or rein in the laws in Indiana, backers like the NRA continue to encourage such laws' expansion in other states. These supporters call them "stand your ground" laws.

Opponents, however, call them "shoot first" laws and identify examples of misuse in some states.

The ILB has had a long list of entries on "deadly force" laws. See particularly this entry from Sept. 11th.

Here is HEA 1028 from 2006, which amended the deadly force law to include "does not have a duty to retreat" and expanded the law from protection of the person's dwelling, to include "an occupied motor vehicle."

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Indiana Law

Ind. Courts - Court hears oral arguments in plea case of first impression

The oral arguments before the Supreme Court Tuesday in the case of Shawn E. Norris v. State (see ILB background) are the subject of a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

Four years after pleading guilty to molesting a young girl, Shawn Norris wants to use newly discovered evidence to exonerate him of the crime.

But first the justices of the Indiana Supreme Court have to give him that option.

The state’s high court heard oral arguments about the Kosciusko County case Tuesday.

It is one of first impression, which means there are no previous legal rulings on the issue in Indiana.

Defendants have long had the right to use the post-conviction relief process to introduce newly discovered evidence and argue their guilt. But the avenue has been used only by those convicted at trial – not those who voluntarily admit their guilt. * * *

Nancy McCaslin, attorney for Norris said he is intellectually challenged – or mildly mentally retarded, according to court records – and he believed that he had molested the girl based on what the girl’s mother told him.

But in 2006, the girl’s mother signed an affidavit recanting the allegations, saying they are “wholly and completely false.”

She said she initiated the case against Norris to regain custody of her children.

“At the time I initiated these false claims I was fully aware that Shawn Norris was mentally retarded and I knew I could force him to say whatever I told him,” the affidavit said. * * *

Several of the justices seemed concerned about the breadth of cases this could open up for review – with the simple recantation of one witness or co-defendant.

“It’s our obligation to look beyond this case,” Chief Justice Randall T. Shepard said. “You are asking us to say everybody who can roust up an affidavit or some other piece of data that might have been admitted had there been a trial may be entitled to set aside the plea in which the person said, ‘I did it.’ ”

And Justice Frank Sullivan Jr. noted that Norris could appeal his plea as not being “knowing, voluntary and intelligent” due to his diminished mental capacity without creating new case law.

Arthur Thaddeus Perry, a deputy attorney general fighting to maintain the conviction, encouraged the justices to dismiss the case by finding the woman’s affidavit doesn’t meet a nine-point test to count as newly discovered evidence.

That would leave open the ultimate question of whether someone who pleads guilty has the right to later challenge that conviction with newly discovered evidence.

“I thought it was always a judicial principle that courts don’t decide questions they don’t have to,” Perry said.

Listen to the oral argument here.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to Upcoming Oral Arguments

Law - Law prof creates useful websites for his students and others

Douglas O. Linder, Elmer Powell Peer Professor of Law, University of Missouri- K. C. School of Law, has created a number of very cool law websites, on famous trials, constitutional law, the First Amendment, and the jury. Check them out here.

Posted by Marcia Oddi on Wednesday, October 01, 2008
Posted to General Law Related