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Wednesday, December 31, 2008

Ind. Decisions - Supreme Court posts one late today, a 3-2 ruling

In State v. Raymond Washington, Jr., an 18-page, 3-2 opinion, Justice Dickson writes:

Pursuant to statutory authority, the State appeals from the trial court order granting the defendant's motion to suppress evidence in a criminal case charging the defendant with possession of marijuana. Upon the granting of the defendant's motion to suppress, the State dismissed the charges and brought this appeal. The Court of Appeals affirmed the trial court in a published opinion. State v. Washington, 875 N.E.2d 278 (Ind. Ct. App. 2007). We granted transfer and now reverse the trial court.

The sole issue before this Court is whether, under both the Fourth Amendment to the U.S. Constitution and Article 1, § 11 of the Indiana Constitution, an officer, without reasonable suspicion, can inquire as to possible further criminal activity, in this case drug possession, when a motorist is stopped for a traffic infraction. * * *

1. Federal Constitution Fourth Amendment

The State contends that the question asked by the officer was neither a search nor a seizure and thus did not violate the Fourth Amendment to the United States Constitution. The State argues that the defendant had a choice as to whether to answer the officer‘s question or not, that the question did not extend the duration of the stop, that it was not unduly intrusive into the defendant's privacy, and that it was not unreasonable. * * *

We conclude that the officer's question to the defendant did not violate the Fourth Amendment.

2. Indiana Constitution, Art. I, § 11

The State acknowledges that the Indiana Constitution's prohibition of unreasonable search and seizure, although almost identical in text to its federal counterpart, nevertheless re- quires a different analysis that focuses on the totality of the circumstances, but argues that under such test the officer's conduct here was completely reasonable. The defendant urges that Section 11 should be interpreted to preclude such police conduct because of the important value of individual privacy. * * *

The officer's question whether the defendant held contraband on his person, notwith- standing the absence of reasonable suspicion, was not unreasonable under the totality of the cir- cumstances and did not violate Article 1, Section 11, of the Indiana Constitution.

Conclusion

We reverse the trial court order granting the defendant's motion to suppress. This cause is remanded.

Shepard, C.J., and Sullivan, J., concur.

Boehm, J., dissents with separate opinion. [which concludes] In sum, I believe that the Indiana Constitution requires reasonable suspicion of a separate offense before an officer conducting a traffic stop may broaden the questioning to other subjects beyond those appropriate to process the traffic violation and protect officer safety. Arrests for more serious offenses typically do not afford such wide discretion as to whom to investigate. The extent to which those arrests justify more extensive questioning is a subject for another day.

Rucker, J., dissents with separate opinion.

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - COA opinion today raises interesting issue

I have singled out one of the opinions issued today because it raises an interesting issue.

In Randy Gibbs v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaidik writes:

As a result of an online sting operation, Randy Gibbs was convicted of Class B felony attempted sexual misconduct with a minor, Class C felony child solicitation, and Class D felony attempted dissemination of matter harmful to minors. We hold that pursuant to Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), reh’g denied, trans. denied, Gibbs cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the intended victim was not actually a minor and therefore reverse those convictions. Finding no error in Gibbs' other argument and concluding that he has failed to persuade us that the sentence for his remaining conviction is not inappropriate, we affirm in part and reverse in part. * * *

The State concedes Aplin is on point but argues it was incorrectly decided. We, however, believe that Aplin was correctly decided. This is especially so since the Indiana Supreme Court denied transfer in Aplin on December 4, 2008. If our General Assembly wanted to penalize defendants for attempting to commit the offense of sexual misconduct with a minor when the victim is an adult the defendant believed to be fourteen or fifteen years old, it could have chosen statutory language similar to that it used in the child solicitation statute, that is, “an individual the person believes to be” a child at least fourteen but less than sixteen years old. See I.C. § 35-42-4-6. However, our General Assembly did not do so. Pursuant to Aplin, the evidence is insufficient to support Gibbs' conviction for attempted sexual misconduct with a minor. * * *

Affirmed in part, reversed in part.
MATHIAS, J., concurs.
MAY, J., dissents with separate opinion. [which begins on p. 14] Because I believe Gibbs' convictions of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors should be affirmed, I respectfully dissent in part. I agree with the State that Aplin was wrongly decided.[1] Although an actual child victim is required for a conviction of the completed offense of sexual misconduct with a minor, Aplin did not adequately explain why an actual child is an element of an attempt offense or cite any authority in support of that proposition.
______________
[1] The majority believes Aplin was correctly decided, “especially so since the Indiana Supreme Court denied transfer . . . .” (Slip op. at 8.) Denial of transfer has no precedential value or legal effect other than to terminate the litigation between the parties, and does not necessarily indicate the Supreme Court's agreement with this court's opinion. Wishard Memorial Hosp. v. Kerr, 846 N.E.2d 1083, 1088 n.1 (Ind. Ct. App. 2006). See Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003), where our Supreme Court unanimously adopted a new rule of law one year after it had denied transfer in a case presenting precisely the same argument.

Upon reading this opinion, a reader wrote to point out:
According to Appellate Rule 58:

B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. . . .

I don't think the denial of transfer enhances the pedigree of a case. Sometimes transfer is sought on a different issue or perhaps even by the other party (in cases where neither got a total victory).

The reader then pointed to Judge May's dissent as making the same point via case law.

I responded: "I admit I didn't know that - I thought denial of transfer was an affirmation."

To which the reader responded:

I've heard Justice Sullivan say that it means something. Unlike the denial of cert, which happens in thousands of SCOTUS cases that pass mostly through a cert pool, the Indiana justices to read each petition and the underlying court of appeals opinion. Rule 22(B) specifically requires the inclusion of "trans. denied" in citations, which shows it must mean something as well.
Any additional thoughts from readers?

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP)

For publication opinions today (7):

In Bart Dewald v. State of Indiana , a 10-page opinion, Judge Vaidik writes:

After a jury trial, Bart A. Dewald [a bail bondsman] was convicted of two counts of Class D felony criminal confinement. On appeal, he challenges the sufficiency of the evidence to support his convictions. First, he contends that the evidence does not show that he confined the victims and, in any event, confining them was not illegal because he had the authority to detain the victims in order to effectively perform his job. Second, he argues that the evidence fails to show that he acted "knowingly" because he believed that he acted within his authority. Concluding that the evidence is sufficient in both of these regards and that Dewald was not authorized to detain the victims, we affirm. * * *

Dewald‘s contention that he believed that he acted lawfully when he stopped Trovatore and Draper and that he therefore did not commit the crime of confinement "knowingly" is unavailing. "A person engages in conduct 'knowingly‘ if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind. Code § 35-42-2-2(b). Even if we take Dewald at his word that he fully believed that he was permitted by law to detain third parties when trying to locate his bail customers (which he had no reason under Mishler to believe), it is well-settled that ignorance of the law is no excuse for criminal behavior. [cites omitted] * * *

The evidence is sufficient to support Dewald‘s two convictions for Class D felony criminal confinement. Further, we decline Dewald‘s request that we expand the authority of bail bondsmen to permit them to detain third parties for investigatory purposes. The judgment of the trial court is affirmed.

Brenda Saalfrank v. Scott Saalfrank - "The trial court did not clearly err in declining to modify Father‘s existing child support obligation. The trial court did not abuse its discretion in determining parenting time or in ordering Mother to pay Father $4070 in attorney fees. Mother‘s appeal was not frivolous or in bad faith. Affirmed. "

In State of Indiana v. Charles Tungate and William Reynolds, a 14-page opinion, Judge Robb writes:

In this consolidated appeal involving several drug-related and theft charges, the trial court suppressed evidence seized from Charles Tungate and William Reynolds (the “Defendants”) because the warrants authorizing the seizure of such evidence were not supported by probable cause. On appeal, the State raises the sole issue of whether the trial court properly concluded the warrants were not supported by probable cause. Concluding that there was probable cause to search some, but not all, of the areas described in the warrants, we affirm in part and reverse in part. We also address the proper standard of review to apply in cases such as this where the trial court suppresses evidence after a magistrate determined there was probable cause to issue a warrant. [ILB - see pp. 5-7 of opinion re standard of review.]
Randy Gibbs v. State of Indiana - [See separate ILB entry here]

In Jesus A. Valenzuela v. State of Indiana, a 7-page opinion, Judge Najam writes:

[W]e address only the following dispositive issue: whether the trial court sentenced Valenzuela in accordance with the terms of his guilty plea agreement. We reverse and remand for resentencing. * * *

Valenzuela contends that the trial court violated the terms of his plea agreement when it sentenced him to an aggregate sentence of forty-five years, with thirty-two years executed. The State responds that the plea agreement is ambiguous but the course of the parties’ negotiations demonstrates that the thirty-five-year cap recommended by the State only applied to the executed portion of the sentence. We cannot agree with the State that the plea agreement is ambiguous. However, even if it were, we would agree with Valenzuela that that ambiguity is to be construed against the State.

Rodney Newkirk v. State of Indiana - "We agree with the trial court that there are no significant mitigators in this case. Therefore, in light of the horrific nature of the offenses and Newkirk‟s demonstrated likelihood to reoffend, we cannot say his sentence is inappropriate. Affirmed."

State of Indiana v. Williams Jenkins - " The State appeals the trial court‟s grant of Williams Jenkins' motion to suppress. Specifically, the State contends that because Jenkins, who was arrested for public intoxication and other crimes in the courtyard area of his apartment complex, was intoxicated in a public place, the trial court erred in granting his motion to suppress. We conclude that an outside, unenclosed courtyard area of an apartment complex is sufficiently distinguishable from an interior common area of an apartment building such that State v. Culp, 433 N.E.2d 823 (Ind. Ct. App. 1982), trans. denied, is not controlling. Accordingly, we find that Jenkins was in a public place and reverse the grant of his motion to suppress. "

NFP civil opinions today (4):

Ezra Bradshaw v. Gary Chandler and Affirmative Ins. Co. (NFP) - "Ezra Bradshaw appeals the trial court‟s grant of summary judgment in favor of Affirmative Insurance Company, Bradshaw‟s insurer, disposing of Bradshaw‟s claim for uninsured motorist benefits. On appeal, Bradshaw raises one issue, which we restate as
whether the trial court properly concluded Bradshaw‟s claim was time-barred pursuant to the two-year limitation period of the parties‟ auto insurance policy. We affirm, concluding that the trial court properly found Bradshaw‟s claim was time-barred because it was filed more than two years after the date of the accident, and neither the discovery rule nor Indiana Trial Rule 15(C) control the policy‟s limitation period. "

Paternity of B.C. and H.C. (NFP) - " However, we cannot determine without an offer of proof the nature of the excluded evidence sufficient to determine its relevancy. As a result, we cannot say that the trial court committed plain error by excluding this testimony. Affirmed. "

Gary Community School Corporation v. Lolita Roach-Walker and Victor Walker (NFP)

Sam Gates v. Ronald G. Pierson and Deborah J. Pierson (NFP)

NFP criminal opinions today (12):

Gene Smith v. State of Indiana (NFP)

Jeffrey Puckett v. State of Indiana (NFP)

Christopher Tyler v. State of Indiana (NFP)

Luciano D. Yzaguirre v. State of Indiana (NFP)

Absalom Julius v. State of Indiana (NFP)

Richarh Tyson v. State of Indiana (NFP)

Ronald Daniels v. State of Indiana (NFP)

Victor Salazar v. State of Indiana (NFP)

Cory Mayberry v. State of Indiana (NFP)

Wendell Iddings v. State of Indiana (NFP)

Timothy Harvey v. State of Indiana (NFP)

Deana I. Powell v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana cases from 7th Circuit at year's end

In Joseph E. Corcoran v. Buss (ND Ind., Judge Sharp), a 33-page, 2-1 opinion, Judge Bauer concludes:

The district court’s finding that Corcoran was competent to waive his post-conviction proceedings is AFFIRMED. However, the decision of the district court to grant Joseph Corcoran habeas relief is REVERSED and REMANDED with instructions to deny the writ, and the State of Indiana is at liberty to reinstate the death penalty.

[p. 25] WILLIAMS, Circuit Judge, concurring in part and dissenting in part. I agree with the majority regarding Corcoran’s Sixth Amendment claim, and I join that part of the opinion. However, I disagree with my colleagues’ conclusion that Corcoran was competent to waive postconviction review.

In Rochester Holmes v. Potter (ND Ind., Magistrate Judge Rodovich), a 10-page opinion, Judge Williams writes:
Rochester Holmes maintains that his former employer, the United States Postal Service, breached a settlement agreement signed after the mediation of a complaint he brought under the Rehabilitation Act. In particular, he contends that the USPS breached the agreement by requiring him to repay a voluntary withdrawal he had taken from his retirement account, by improperly calculating his retirement amount using his time in the military, and by adjusting his annual leave payment based on an existing negative leave balance. Because the settlement agreement is unambiguous, integrated, and contains no provisions detailing how benefits were to be calculated, the USPS did not breach the agreement. Therefore, we affirm the grant of summary judgment in the USPS’s favor.

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Bradford sworn in for last term as Porter County judge"

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

VALPARAISO -- The first swearing-in ceremony in for a Porter County official also marked an end Monday.

Judge Roger Bradford announced that the early ceremony would mark the last six years he'll serve in Superior Court 1, ending a career that began in July 1979.

Bradford's announcement followed a comment by Judge Jeffrey L. Thode of Superior Court, who swore Bradford in for the 2009-2015 term, then said, "I hope to be here in six more years and do it one more time."

Bradford replied, "You may be back here in six years, but it won't be swearing in me."

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Indiana Courts

Ind. Gov't. - Issues continue with state's new welfare eligibility system

A lengthy report today in the Evansville Courier & Press, reported by Bryan Corbin and Eric Bradner, includes the following quotes:

INDIANAPOLIS — Indiana lawmakers say they continue to be inundated with complaints from constituents about the state's new welfare eligibility system.

It was supposed to allow Hoosiers in need to sign up by phone or online for Medicaid, food stamps or welfare benefits, but lawmakers field frequent complaints the system loses clients' documents, causes long delays, furnishes incorrect information and is hard for the elderly and disabled to navigate.

Complaints about the Indiana Family and Social Services Administration's welfare modernization program have both Democrats and Republicans proposing the Legislature halt the program from expanding until problems are fixed. * * *

Republican Gov. Mitch Daniels, whose administration negotiated the privatization contract for welfare modernization to deter waste and fraud, was not pleased that legislators of his own party might try to pass a bill to put his program on hold.

"Let me just say, they'd better come here first (to the governor's office) because we are not turning around on this very important reform," Daniels said Dec. 19.

In late 2006, the Daniels administration awarded a team of vendors led by IBM Corp. a $1.16 billion, 10-year contract to process applications for Medicaid, food stamps and welfare benefits that 1.1 million Hoosiers receive.

Replacing most of the caseworkers in county welfare offices, the new system encourages clients instead to apply for benefits on the Web or by phoning call center representatives in Marion, Ind., although county welfare offices remain open.

The privatization rollout has reached 59 counties, including Southwestern Indiana. It has not reached 13 counties in northwestern and north-central Indiana and 20 counties in central Indiana. The date of the next rollout hasn't been decided.

With Evansville already in the rollout area, local legislators say they field multiple complaints each week from constituents and health care providers about problems obtaining or keeping Medicaid benefits, food stamps or Temporary Assistance for Needy Families. Legislators routinely ask the FSSA to review cases to correct mistakes.

While the phone- and Web-based application options work fine for some clients, they are harder to navigate for the elderly or mentally disabled, who might lack Internet access or computer skills. Being placed on hold for long periods is burdensome to those who rely on prepaid cell phone minutes, they said. * * *

FSSA officials repeatedly have stressed they are aware of the complaints and are working hard to address them. The outgoing FSSA secretary, Mitch Roob, said Oct. 22 that legislators' proposals to pause the modernization rollout would be "very unhelpful" and a step backward.

Daniels said the old welfare system was plagued with fraud and abuse, and Indiana faced tens of millions of dollars in federal government penalties if changes weren't made.

"Let me tell you what: They (the legislators) are hearing complaints from people who made money off the past system. That's where the complaints are principally coming from. It wasn't a bad system; it was the worst in America," Daniels said.

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Indiana Government

Ind. Courts - Delaware Circuit Judge Robert Barnet Jr. issues final sentence

Douglas Walker reports today in the Muncie Star-Press in a story that begins:

MUNCIE -- Convicted felon Darin Joe Wooten had a final comment Tuesday for Judge Robert Barnet Jr., who had just sent him to prison for the second time in 21 years.

"Have a happy retirement, judge," a handcuffed Wooten said as he was led from the Delaware Circuit Court 3 courtroom by deputies.

Wooten -- given a 10-year sentence after pleading guilty to burglary and other charges -- proved to be the last of hundreds of criminals sent to prison by Barnet over the past three decades.

The 62-year-old judge is retiring today after serving five six-year terms on the bench.

"I'm going to miss all of you people," Barnet told a group of court employees and others who entered the courtroom after the Wooten hearing and gave the judge a round of applause.

"But I'm not going to miss what I've been doing," he added, referring to four sentencing hearings conducted Tuesday.

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Indiana Courts

Environment - "IDEM suspends grants for pollution prevention, recycling"

Two stories today: Gitte Laasby has this report in the Gary Post-Tribune; Rick Callahan of the AP has this report.

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Environment

Environment - "Ex-Dana site fueling fears; Angola eyes cleanup plan"

Becky Manley reports today in the Fort Wayne Journal Gazette on the question of who is responsible for cleanup costs at the former Dana Corp. Site near Angola. (For background, see three earlier ILB entries on this issue, the most recent being this entry from Dec. 19th.) From today's story:

Angola officials have been invited to Monday’s Steuben County commissioners meeting to discuss a cost-sharing proposal to clean a former Dana Corp. site of contamination that could threaten the city’s water supply.

The permanent cleanup at 203 Weatherhead St., located within Angola’s city limits, could cost from $5.5 million to $7.5 million, Angola Mayor Richard Hickman said.

Currently, a hydraulic system prevents contaminated groundwater and oils from reaching Angola’s city water supply, but Hickman said that operation might shut down in early 2009 when Dana’s bankruptcy proceedings come to a close.

According to Indiana Department of Environmental Management records, Dana closed its Angola operation in 1993.

In 1995, the company entered into a voluntary remediation agreement with the state in which Dana agreed to keep the contaminants from spreading.

Dana operated a brass foundry and manufactured brass parts and fittings, IDEM records said. The site had at least two underground fuel storage tanks, an on-site wastewater treatment plant and a lagoon constructed before 1958 that remained in operation through at least 1973 until it was abandoned, according to IDEM records.

Dana’s agreement with IDEM was a factor behind the decision by Univertical Corp. to relocate its operations from Detroit to the former Dana site in Angola in 1997, according to a letter sent by Univertical President W. Chuck Walker to IDEM in August 2006.

The company’s relocation brought more than 55 jobs to Angola, Walker wrote.

Now, Hickman said, Univertical is poised to purchase another plant in North Carolina. At that point, the company could either bring more jobs to Angola, or the opposite could occur if the local jobs are relocated outside the state.

Univertical officials have made it clear they cannot afford to buy the North Carolina plant and pay for the local cleanup costs, Hickman said.

Hickman said he understands the position taken by Univertical officials and that the city would lose 55 “good-paying jobs” and still be stuck with a contaminated site if the company were to move. * * *

After Dana sought Chapter 11 bankruptcy protection in March 2006, it notified IDEM and Walker that it would shut down the system that keeps the contaminants out of the water supply. The company subsequently agreed to continue to operate the site’s remediation equipment, but Hickman said that may change when Dana’s bankruptcy proceedings end as early as late January.

Now, after two years of review by city officials, Hickman said a proposal is being developed that would split the cost of permanently cleaning the site among the city, county and Univertical.

As of Tuesday, Hickman said it hadn’t been determined exactly how the costs would be divided. * * *

However, before county officials agree to help, officials will need to know how county coffers will be replenished if Univertical were to relocate, Sanders said.

“There’s still a lot of unanswered questions that need to be clarified before we go into it.”

Posted by Marcia Oddi on Wednesday, December 31, 2008
Posted to Environment

Tuesday, December 30, 2008

Courts - "NY Chief Judge Is Retiring, Leaving Trail of Successes for Women on the Bench"

John Eligon of the NY Times has this report on the retirement of NY State's Chief Judge, Judith S. Kaye. A quote from the lengthy story:

Now, after reaching the mandatory retirement age of 70, Judge Kaye will retire on Wednesday, ending a quarter-century on the bench having vaulted women to new heights in the judiciary.

Besides knocking down the last major hurdles for women in the judiciary, Judge Kaye, court observers agree, left a record of successes in her stewardship of the Court of Appeals and in her role as chief executive of one of the largest state court systems in the nation.

She has served longer than any other chief judge in New York history, becoming one of the country’s most highly regarded judges. She was considered by President Bill Clinton for the position of United States attorney general, and at other times for the United States Supreme Court — positions she shunned to remain on New York’s high court.

“She leaves a legacy for advancing the court system into places and dimensions where it had never been,” said Albert M. Rosenblatt, one of Judge Kaye’s former colleagues on the court and the author of a book on the history of judges in the Court of Appeals.

As an administrator, Judge Kaye pushed the court system to address societal problems by creating courts or assigning judges for specific issues like drug abuse, mental health and domestic violence — initiatives that other states followed.

Judge Kaye, appointed by a liberal governor, led the charge to broaden the powers of the State Constitution, supported gay rights and voted against the death penalty.

One of her most noted opinions came on the losing side, in the court’s 2006 decision against gay marriage. Her dissent was cited by the high courts in California and Connecticut when they endorsed gay marriage this year. (Voters in California banned gay marriage by amending the State Constitution last month.)

Posted by Marcia Oddi on Tuesday, December 30, 2008
Posted to Courts in general

Environment - More on: "Spill renews debate over coal ash: Toxicity, slurry pond safety are questioned"

Updating this ILB entry from Dec. 27th, see this NY Times story today by Shaila Dewan, headed "At Plant in Coal Ash Spill, Toxic Deposits by the Ton ."

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

Ind. Courts - "Greene Superior Court Judge Dena Benham Martin took her oath of office on Tuesday morning"

"Looking on at left are the couple's two daughters, six-year-old Edan and three-year-old Ande." See the great photo here, via the Greene County Daily World.

Posted by Marcia Oddi on Tuesday, December 30, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In State of Indiana v. William Hunter , a 9-page opinion, Judge Darden writes:

As a reserved question of law, the State appeals the trial court's ruling to exclude evidence during a bench trial which resulted in the acquittal of William Hunter on the charge that he committed class A misdemeanor operating a vehicle while intoxicated. We affirm.

Issue: Whether the trial court erred when it excluded the report of blood test results because the State had failed to establish the requisite foundation as to the drawing of Hunter's blood. * * *

[T]he trial court found that the forensic report on the analysis of Hunter's blood was inadmissible because the State failed to establish the requisite foundation under Indiana Code section 9-30-6-6 [which provides a protocol pertaining to the collection/obtaining of bodily substance samples]. * * *

[I]n Combs v. State, 895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008), the appellant argued that “the State failed to lay a proper foundation for admitting” blood test results” because it did not present evidence that the person who drew Combs's blood acted under proper protocol.” We stated that inasmuch as our Supreme Court had noted that “the foundation for admission of laboratory blood drawing and testing results, by statute, involves technical adherence to a physician's directions or to a protocol prepared by a physician,” the foundational requirement of Indiana Code section 9-30-6-6 could “not be ignored.” * * *

Here, as in Combs, the State has failed to present evidence that Nurse VanContron was “acting under the direction of or under a protocol prepared by a physician[.]” I.C. § 9-30-6-6(a). Moreover, unlike in Combs, the State failed to present any evidence that Nurse VanContron was “a person trained in obtaining bodily samples.” Id. Therefore, the inadequacy of the foundation is even more pronounced.

Nevertheless, the State argues that the statute “is inapplicable” here because Nurse VanContron drew Hunter's blood pursuant to a court-authorized warrant. However, it cites no authority for this proposition, and we find none. Further, we do not find that because a search warrant directed hospital personnel to obtain a bodily substance sample, such should not trump and/or negate the legislature's statutory requirements outlining the prescribed protocol for obtaining such samples. The State further argues that the statute is inapplicable because it merely concerns “the proper taking of the bodily substance sample, i.e., how, when and by whom,” which “should have no affect [sic] on the admissibility of the test results in a criminal proceeding” against the person whose bodily substance was taken. Again, we find no merit in such a contention. Indiana statute and common law require a specific evidentiary foundation for the admission of bodily substance sample test results. Here, the State failed to establish that foundation. Affirmed.

In Julie McCoy, Janice Buckholtz and Jessica Buckholtz v. American Family Mutual Insurance Co., a 6-page opinion, Judge May writes:
Janice Buckholtz and her daughter Jessica Buckholtz obtained a judgment against Julie McCoy, who had a homeowners policy issued by American Family Mutual Insurance Company. American Family sought a declaratory judgment that it did not have to satisfy the judgment. The trial court granted summary judgment for American Family, and we affirm. * * *

The parties agree that McCoy did not own or rent the ATV and she was not operating it at the time of the accident. The Buckholtzes argue the ATV was on loan to McCoy, because it was kept on her property and it was available for her and her children to ride whenever they wished. The ATVs were on the property because Shoemaker resided there, not because they were always on loan to McCoy. Shoemaker might have authorized McCoy to give others permission to ride the ATVs; however, it is undisputed that McCoy was not present while Jessica was riding the ATV. Shoemaker was present, and he presumably could have overridden any permission extended by McCoy. * * *

Shoemaker owned the ATVs, and he was the only one directing the use of the ATVs at the time of the accident. Shoemaker granted temporary use of the ATV to Jessica, and we agree with American Family that the ATV was on loan to Jessica rather than McCoy. Because McCoy did not own, operate, rent, or loan the ATV, the accident falls within the vehicle exclusion, and the trial court did not err by granting summary judgment for American Family.

Tina Sue Day v. State of Indiana - "Tina Sue Day appeals her seventeen-year sentence for Class B felony promoting prostitution. We find nothing inappropriate about a seventeen-year sentence for a woman who accepted cash in exchange for allowing multiple men to molest her twelve-year old daughter. We therefore affirm."

Troy R. Shaw v. State of Indiana - "The post-conviction court determined trial counsel was not ineffective for objecting to the aggravated battery instruction, nor was appellate counsel ineffective for failing to argue the trial court erred in allowing the charging information to be amended after the omnibus date. Shaw has not shown the evidence leads unerringly to a decision opposite to that reached by the post-conviction court. As a result, we may not set aside the judgment. Affirmed."

In Peg Zaremba v. Jessica and John Nevarez , an 11-page opinion, Judge Brown writes:

Peg Zaremba appeals the trial court's dismissal with prejudice of her claim against Jessica Nevarez and John Nevarez for rent and damages. Zaremba raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Zaremba's motion to correct error concerning the trial court's dismissal with prejudice of Zaremba's complaint. We reverse and remand. * * *

Small Claims Rule 10 is specific and “[d]ismissal with prejudice is contemplated only when the plaintiff again fails to appear after the claim has been refiled.” Here, the record does not reveal that Zaremba failed to appear after the claim was refiled. Thus, Ind. Small Claims Rule 10(A) does not contemplate dismissal with prejudice under the circumstances. As previously mentioned, the Nevarezes did not file an appellee's brief, and we will not develop arguments on their behalf. With this in mind, we conclude that the trial court abused its discretion by dismissing Zaremba's claim with prejudice and denying Zaremba's motion to correct error. See Multivest, 671 N.E.2d at 201-202 (reversing and remanding for a determination on the merits after a presentation of the evidence). For the foregoing reasons, we reverse the trial court's dismissal of Zaremba's claim against the Nevarezes and remand for proceedings consistent with this opinion. NFP civil opinions today (4):

In Dwyer Instruments Inc. v. James Keller (NFP), a 6-page, 2-1 opinion, Judge Crone concludes:

Here, the trial court did not hold a hearing before it granted Dwyer’s motion to dismiss and granted the motion on the very day it was filed. Thus, Keller was not afforded an opportunity even to file a response or request a hearing to show cause why his case should not be dismissed. It was not until he filed his motion for relief that he was given his day in court and could produce evidence of a meritorious defense regarding his compliance with the discovery order. To its credit, the trial court ultimately granted Keller an opportunity to be heard and set aside its order to dismiss. We cannot say that the trial court abused its discretion in doing so. Accordingly, we affirm.

VAIDIK, J., concurs.
KIRSCH, J., dissents with opinion: I respectfully dissent. Gladstone’s admonition that “Justice delayed is justice denied” is often quoted, but too rarely followed. This case is the latest example. The facts giving rise to this case occurred in 2005. In the intervening three and a half years, very little has happened to bring the case to a just and efficient resolution. The plaintiff’s failure to respond in a timely fashion to the defendant’s discovery is the primary reason for the delay. Nothing in the documents before us justifies or explains such delay. As my colleagues note, there is no requirement that a trial court hold a hearing when it dismisses a case under trial Rule 37. I would reverse the trial court’s order setting aside its order of dismissal.

Thomas Fine v. Robert G. Harp and Delores C. Harp (NFP) - "We now grant rehearing for the limited purpose of correcting the above-quoted portion of the opinion so as to reflect that Fine originally filed his status report on July 21, 2008 and cured the filing defect on July 29, 2008. We deny the petition for rehearing in all other respects and deny the Harps’ request for attorney fees."

The Marriage of John M. Farrell v. Nicole T. Farrell (NFP) - "John Farrell appeals the modification of his child support. He challenges the court's authority to modify support, the amount of income the court assigned to him, the date from which the court modified payment of college expenses, and the order that he pay a portion of attorney fees for his ex-wife, Nicole. While the court had authority to modify the child support order, the order lacks sufficient clarity for us to determine whether the evidence supports the income assigned to John. Accordingly, we affirm in part, reverse in part, and remand. "

Saiful Sam Islam v. Brenda Colleen Meadows (NFP) - "Saiful Sam Islam (“Father”), pro se, appeals the trial court‟s order dissolving his
marriage to Brenda Meadows (“Mother”). We affirm."

NFP criminal opinions today (8):

State of Indiana v. Albert P. Villareal (NFP)

Derek E. Baker, Sr. v. State of Indiana (NFP)

Vincent E. Simon v. State of Indiana (NFP)

Ragena Dennis v. State of Indiana (NFP)

William Cornett v. State of Indiana (NFP)

Timothy Brewer v. State of Indiana (NFP)

Allen E. Vaughn, Jr. v. State of Indiana (NFP)

Joseph G. Ross v. State of Indiana (NFP)

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

Ind. Law - Yet more on "Approving a proposed constitutional amendment that would put limits on property-tax bills, so it can be put on the ballot for ratification in 2010"

Updating this ILB entry from Dec. 7th, Bryan Corbin of the Evansville Courier & Press reports today in a lengthy story that begins:

INDIANAPOLIS — Property tax caps passed in March by the Indiana Legislature were praised at the time as a money-saver for homeowners but also reviled by some officials because they ratcheted down the flow of dollars to local government services.

As the Legislature convenes Jan. 7, the other shoe is about to drop. Lawmakers will be asked to begin the process to write those property tax caps into the state constitution.

The difference is significant: A law, or statute, can be overturned through majority votes of the House and Senate, along with a governor's signature. An amendment to the state constitution, once ratified, is much harder and more time-consuming to reverse.

Supporters say amending the property tax caps into the constitution would protect taxpayers and prevent the statutory caps from ever being overturned in court as unconstitutional.

"This is an extremely important objective. I think it's better for everyone here if the General Assembly finishes its part of this process now," said Republican Gov. Mitch Daniels, who originally proposed the tax caps in his relief plan last year.

Opponents say more time is needed to determine the caps' effect on funding local governments and public safety, so they advocate waiting a year.

"One needs to know what the impacts are before we unilaterally stick it in the constitution," said Rep. Russ Stilwell, D-Boonville.

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

Ind. Gov't. - Valid driver's license in tragedy baffled some

A story Saturday, Dec. 27 in the Evansville Courier & Press, reported by Libby Keeling, included the following:

Prosecutors say they are puzzled over why the driver of a car that caused a fatal, head-on crash on Green River Road on Thursday night had an Indiana driver's license.

Court records indicate Daniel Joe English II, 34, of Evansville had a history of alcohol-related arrests and had been adjudged a habitual traffic offender in 2005. His driving privileges were suspended for life by Vanderburgh Superior Court. * * *

"I don't see how that can be ...," said Vanderburgh Deputy Prosecutor Camala Cooley, who is assigned to the case. "I've never seen this, but I have seen where the (Bureau of Motor Vehicles) records may not be completely accurate. ...

"Monday, I'll probably have one of our investigators contact the BMV and see what their records show, and that can be an additional charge that we can have against him."

Today the same reporter has a story headed "County Clerk Kirk takes blame for error." Some quotes:
Daniel Joe English II apparently had a valid Indiana driver's license on Christmas night, when his drunken driving allegedly caused an accident that killed another driver on Green River Road.

But the 34-year-old Evansville man's license had been suspended for life three years ago in Vanderburgh Superior Court.

The Indiana Bureau of Motor Vehicles issued a news release Monday maintaining it had no record of English's court-ordered suspension.

The county clerk also issued a statement Monday acknowledging the office had made a mistake.

"Unfortunately, we are all going to make mistakes once in a while, and the clerk's office will take the responsibility for ours. Our thoughts and prayers go out to the Sharp family," said County Clerk Susan Kirk.

The victim, Onterrio T. "Terry" Sharp, 20, was enrolled at Ivy Tech Community College and was planning a career in law enforcement.

Both Kirk and Evansville Police Chief Brad Hill noted officers previously had arrested English for driving on a suspended license.

"You can suspend a guy's license, but you cannot keep him from getting in a car," Hill said.

However, Kirk noted, "This does not excuse the mistake the clerk's office made concerning this horrible tragedy."

It was an error, she said. No policy changes or reprimands were required.

According to the statement from the BMV, the clerk's office said English's lifetime suspension documents never had been sent.

"Following the BMV's communication with the clerk's office this morning, the clerk issued an order, dated (Monday), for a lifetime suspension of Mr. English's driving privileges.

"The BMV promptly processed this order and will continue to collaborate with Vanderburgh County officials to confirm that the BMV has received appropriate records documenting all actions of Vanderburgh County courts."

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

Ind. Courts - "No respite in store for Delaware County prosecutor in '09"

Jou Leiker reports today in the Muncie Star-Press:

After a year of upheaval for the Muncie-Delaware County Drug Task Force and its attorney, the new year promises to be the start of a long political fight for Prosecutor Mark McKinney.

The May 2010 primary is 17 months away, and already Republican attorneys are talking about challenging McKinney, a first-term Democrat who is at the center of the DTF storm. * * *

The DTF investigation, and McKinney's handling of related cases, most certainly will be a focus of the next campaign. Last week Judge Richard Dailey ordered McKinney to repay thousands of dollars in attorney fees he collected in 40 civil forfeiture cases connected to DTF arrests.

A special prosecutor still is studying whether McKinney committed any crimes, and the Indiana Supreme Court Disciplinary Commission has yet to rule on any violations the prosecutor may have committed. The disciplinary commission could still dismiss the complaint, filed by Mayor Sharon McShurley, or it could decide that McKinney's actions warrant disciplinary action.

At the same time, the DTF itself is recovering from an early 2008 reorganization, in which the city's officers all were pulled from the force and reassigned to Muncie's streets. The change led to hard feelings, but also caused some friction between the city and county officers, and prompted McKinney to criticize the new city DTF officers, saying that in their first six months on the job they hadn't presented a prosecutable case to his office.

Posted by Marcia Oddi on Tuesday, December 30, 2008
Posted to Indiana Courts

Ind. Courts - "Two Jeff annexations hang in the balance"

An unattributed story today in the LCJ has these quotes:

Two areas that Jeffersonville had sought to annex this year could remain independent for another year unless courts allow them to become part of the city by Wednesday.

The areas – the well-established Oak Park Conservancy neighborhood southeast of Middle Road and a roughly 30-acre tract near Stacy Road north of Ind. 62 -- include 7,800 acres and 9,000 residents.

The city proposed in August 2007 to take over the areas. But both efforts are tied up in court cases challenging the annexations, and Indiana law doesn’t allow an annexation to take effect the year before a U.S. Census. The next federal census is in 2010. * * *

Larry Wilder, a lawyer for Jeffersonville in the case, said today he was still hoping the Indiana Supreme Court will decide by Wednesday not to review Oak Park’s case. But he acknowledged that if the court doesn’t do that, the annexation can’t take effect until 2010.

Oak Park residents appealed after the annexation was upheld by Clark Circuit Court and the Indiana Court of Appeals.

“The Supreme court is well aware” of the importance of acting by year’s end, Wilder said.

Kathy Dolan, a spokeswoman for the Indiana Supreme Court, said the court had received just today all the documents requesting it to consider the Oak Park case.

“Typically, it is a matter of a few weeks” before the court decides whether to accept such appeals, she said. But “each case is different.” * * *

Denise Poukish, a leader of opposition to the annexation near Stacy Road, said she and her neighbors in the Bethany Farms subdivision who are fighting that takeover would like it to be delayed for another year.

Special Judge Ted Todd has scheduled a hearing for Wednesday at 1:30 p.m. on whether that annexation can take effect immediately. Todd already ruled Dec. 17 in favor of the city in the lawsuit by Bethany Farms residents, whose neighborhood isn’t being annexed but is adjacent to the Stacy Road property.

The opponents want Todd to grant a stay of the annexation pending an appeal.

Posted by Marcia Oddi on Tuesday, December 30, 2008
Posted to Indiana Courts

Ind. Courts - Changes in Marion county courts [Updated]

Jon Murray has a useful story today in the Indianapolis Star on the upcoming changes to Marion County courtrooms:

A massive shuffling is under way this week as more than a third of Marion County's elected judges prepare to join the bench or switch courtrooms.

The result will be a larger Marion Superior Court, with 36 judges. A new civil court opening this week follows the addition of three criminal courts in 2007.

Six newly elected judges, including Circuit Judge-elect Louis Rosenberg, received their black robes during a ceremony Monday.

Most have visited the courts to learn the ropes, including Kurt Eisgruber, a Republican who will oversee a major-felony court. During remarks in the City-County Building's Public Assembly Room, the former deputy prosecutor and private attorney said his new role will require a new approach.

"I must temper the (public's) outrage with recognition of the burden of proof the state must bear," Eisgruber said.

Indiana Supreme Court Justice Theodore Boehm presided over the swearing-in ceremony for Rosenberg and 16 Superior Court judges, including incumbents, who will begin new six-year terms Thursday.

Among changes coming to the Superior Court system:

Judge-elect Timothy Oakes and outgoing Circuit Judge Theodore Sosin -- moving to Superior Court -- will oversee civil courts. New Judges Marc Rothenberg and Kimberly Brown, the sister of Judge Linda Brown, will preside over criminal courts.

Judge-elect James Osborn will move to his permanent D-felony post after filling in for major-felony Judge Grant Hawkins while he is on suspension, awaiting possible removal, in a disciplinary case. Osborn expects the state Supreme Court to appoint another temporary judge for Hawkins' court.

Judges Patricia Gifford, John Hammel, Kenneth Johnson and Gary Miller will step down at the end of their terms.

Eight sitting judges plan moves to different courts, including Lisa Borges to major-felony, William Young to traffic and Tanya Walton Pratt to probate.

The presiding-judge position on the executive committee will pass next month from the Democrats to the Republicans for a two-year term.

[Updated 12/31/08] See this story by Jon Murray, headed "Six Marion Co. judges sworn in."

Posted by Marcia Oddi on Tuesday, December 30, 2008
Posted to Indiana Courts

Ind. Courts - More on "LaPorte deputy prosecutor shot"

Updating this ILB entry from Dec. 24th, Stan Madddux, correspondent to the NWI Times, reports today under the headline "Special prosecutor appointed in LaPorte County attorney shooting":

LAPORTE | A prosecutor from outside LaPorte County will decide whether the shooting of Jennifer Evans, who was elected as a judge in November, was a crime.

LaPorte County Chief Deputy Prosecutor Atley Price filed a petition Monday morning in LaPorte Superior Court 1 requesting a special prosecutor to review evidence in the case.

Judge Kathleen Lang granted the petition and asked the St. Joseph County prosecutor's office be appointed to review the case.

Evans, 34, has been a LaPorte County deputy prosecutor for about a decade. She is due to take over as judge in LaPorte Superior Court 3 on Thursday.

LaPorte County Prosecutor Rob Beckman said an independent review will ensure public trust in the investigation.

''We wished to avoid even the appearance of impropriety,'' Beckman said.

Evans was taken by ambulance Dec. 22 from her home on Victoria Circle in LaPorte after a gunshot grazed her head. A full recovery is expected.

Beckman would not comment on a published report last week that quoted Evan's husband, Stephen Koethe, as saying Evans didn't know the gun was loaded while she was handling it.

Beckman last week said there were no obvious factors to indicate whether the shooting was a crime or an accident.

He said any further comment about the case would have to come from police or the St. Joseph County prosecutor's office, which will render an official ruling in the case following a thorough review.

Posted by Marcia Oddi on Tuesday, December 30, 2008
Posted to Indiana Courts

Monday, December 29, 2008

Courts - Kentucky judge retirements leave racial void on bench

This AP story today in the Lexington Herald-Leader begins:

LOUISVILLE, Ky. -- Kentucky's largest county will be left with no black judges presiding in any of its trial courts after two African-American judges retire in January.

Janice Martin, who became the first black female judge in the state in 1992, is one of the retirees. She says it puts Jefferson County, which is 19 percent black, back at "square zero."

"It is very disturbing and disheartening," Martin told The Courier-Journal.

Judge Toni Stringer also is retiring, leaving the county without a black judge among the 40 in district, circuit or family courts.

But as many as seven seats are opening in Jefferson district and circuit courts by the end of next month, and one or more of those appointments could go to an African-American attorney. * * *

The Commission on Racial Fairness is working on a resolution that points out the importance of diversity on the bench.

"It is almost unbelievable that we will not have any African-Americans on the trial bench" in Jefferson County, said Kentucky Court of Appeals Judge Denise Clayton, who oversees the commission. The commission was created to specifically examine racial fairness in Jefferson County courts.

Clayton, the first black woman to become a Kentucky Circuit Court judge, moved to the appeals court last year.

"The bench should reflect the diversity of the community," she said.

Posted by Marcia Oddi on Monday, December 29, 2008
Posted to Courts in general

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

Here is the transfer list for the week ending Dec. 26, 2008. It is one page long.

Two transfers were granted last week, both with opinion (both opinions posted 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, December 29, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Bernice Sommers, et al. v. Wendy Sommers, et al. , a 6-page opinion, Judge Bailey concludes:

The Estate argues that failure to file a motion to vacate, modify or correct does not prohibit them from defending a motion to confirm with one of the prescribed exceptions in Sections ten and eleven. Federal caselaw dictates otherwise. In Cullen v. Paine, Webber, Jackson & Curtis, Inc., a panel of the Eleventh Circuit followed the lead of the Second Circuit, holding that a party's failure to move to vacate, modify or correct an arbitration award within the three-month window provided by Section twelve precludes that party from later seeking such relief when opposing a motion to confirm the award. Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851, 853 (11 th Cir. 1989). The Cullen Court also noted that other Circuit Courts of Appeal arrived at the same conclusion in analogous scenarios involving state arbitration statutes that contain similar three-month statutes of limitation. Id. at 853-54 (including Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1025 (7th Cir.1980) (Indiana statute)). Therefore, because the Estate failed to file a motion to vacate, modify or correct within the prescribed time it has waived these arguments in defending the Nieces?s motion to confirm. The trial court properly confirmed the arbitration award. Affirmed.
In TWH, Inc. v. Jennifer Binford, a 6-page opinion, Judge Najam writes:
TWH, Inc., d/b/a Tom Wood Honda (“TWH”), brings this interlocutory appeal from the trial court’s denial of its motion to compel arbitration in this action on Jennifer Binford’s complaint alleging breach of warranty and fraud against TWH. TWH presents several issues for our review, but we address a single, dispositive issue, namely, whether the trial court erred when it denied TWH’s motion to compel arbitration. We reverse and remand with instructions.
In James Gibson, et al. v. Indiana Dept. of Correction, et al. , a 32-page opinion, Judge Crone writes:
Effective July 1, 2007, the Indiana statutes providing for a sex offender registry were amended to create a sex and violent offender registry (“Registry”). Ind. Code § 36-2-13-5.5 (amended by P.L. 216-2007, § 52). Thus, one who is convicted of murder, voluntary manslaughter, attempted murder, or attempted voluntary manslaughter who fails to register required information 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 the fall 2007, James Gibson and other former violent offenders (“Appellants”) filed a complaint asserting that their inclusion on the Registry and the imposition of the various registration requirements violate the Indiana Constitution, specifically Sections 23 and 12 of Article 1. The complaint was filed against the Indiana Department of Correction and various county sheriff’s departments and prosecutors (“Appellees”).

Following a hearing, the Marion Superior Court, on March 13, 2008, issued findings of fact, conclusions of law, and entry of preliminary injunction regarding the enforcement of lifetime registration by violent offenders. Appellants, now certified as a class, appeal the denial of the preliminary injunction with respect to the ten-year registration requirement for violent offenders. Appellees, also having received class certification, cross-appeal the portion of the preliminary injunction that bars lifetime registration by certain violent offenders. We affirm in part and reverse in part with instructions.

In resolving this case, we must address the following issues:

I. Whether the imposition of the Registry’s requirements on persons convicted of murder, voluntary manslaughter, attempted murder, and attempted manslaughter violates Article 1, Section 23 of the Indiana Constitution;

II. Whether the imposition of the Registry’s requirements on persons convicted of murder, voluntary manslaughter, attempted murder, and attempted manslaughter violates Article 1, Section 12 of the Indiana Constitution;

III. Whether the Appellants demonstrated either irreparable harm or that the balance of harms and public interest favors a preliminary injunction; and

IV. Whether the trial court erred in entering a preliminary injunction limiting the Registry requirements to ten years rather than lifetime. * * *

[Re Issue I, the Court rules, citing and quoting the Appellees' brief]

Because Murder and Voluntary Manslaughter, along with attempts and conspiracies to commit those crimes, involve voluntary and intentional acts by persons either designed to take the life of another person or very intentional and voluntary acts to commit certain serious felonies where commission of the crimes might reasonably cause the death of another person, the General Assembly was within its authority consistent with Article 1, Section 23 of the Indiana Constitution to determine that persons who have committed Murder and Voluntary Manslaughter represent a greater, continuing threat to society than persons who committed other crimes resulting death, so that their inclusion on the [R]egistry was warranted. Thus, contrary to [Appellants’] claims, there are inherent differences that make expedient different or exclusive treatment of persons who have committed crimes resulting in deaths.
[Re Issue II] * * * Considering our deference to legislative policies (regardless of our position as to the policies), the fact that there is some (albeit slight) recidivism among violent offenders at least for some time after release, and that community notification about violent offenders provides an opportunity for enhancing public safety (legitimate state interest), the requirement that violent offenders register for at least some19 amount of time meets the low threshold of rational relation. Thus, we see no violation of Article 1, Section 12. * * *

[Re Issue III]
Given that we have not found a constitutional problem, Appellants’ preliminary injunction argument fails on the first prong, likelihood of success on the merits. Again, if the movant fails to prove even one of the prongs, the injunction cannot be granted. Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 863 (Ind. Ct. App. 2006). Therefore, we cannot say the court abused its discretion to the extent it denied Appellants’ request for a preliminary injunction. * * *

[Re Issue IV] To the contrary, applying Indiana Code Section 11-8-8-19(d) only to sex offenders is the more logical reading of the statute. Accordingly, we clarify that a violent offender is required to comply with the Registry for ten years, unless he/she also falls within Subsections (b), (c), or (e) of Indiana Code Section 11-8-8-19, in which case lifetime registration is warranted. Therefore, we conclude that the court’s preliminary injunction should apply only to members of the subclass represented by Wade. Such members are violent offenders who are or will be more than ten years removed from the later of the date they were released from prison, placed on parole or probation, or placed in a community corrections, and who are not sexually violent predators, were not convicted of an offense while over the age of eighteen against a victim less than twelve, and have not been convicted of two or more unrelated offenses under Indiana Code Section 11-8-8-5(a). To the extent that the trial court’s order would grant a preliminary injunction against lifetime registration for all violent offenders, we reverse and remand with instructions to clarify the preliminary injunction consistent with this opinion. In all other respects, we affirm the trial court.

Owen J. Fought v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to prove beyond a reasonable doubt that Fought committed public intoxication. Affirmed. "

In Larry L. McGhee v. State of Indiana - a 2-1 opinion, Judge Riley concludes:

The State does cite Clark v. State, 808 N.E.2d 1183, 1191-92 (Ind. 2004), where our supreme court held that “if the police have a good faith basis for a statement, even if technically false, it does not rise to the level of deception.” That is true, but Detective Cole did not have a good faith basis for his statement that consensual sex with an adult relative is lawful. The basis for his statement was that he did not know the law. We would set a dangerous precedent if we were to hold that a lack of knowledge of the law amounts to a good faith basis for a material misstatement. Such a holding would give police officers an incentive to not know the law.

In sum, we conclude that McGhee’s confession was involuntary and, therefore, inadmissible. Thus, the trial court abused its discretion by admitting it. The State makes no argument that the trial court’s error was harmless. As such, we reverse McGhee’s conviction and remand for a new trial. * * *

BAILEY, J., concurs.
BRADFORD, J., dissents with separate opinion. [that concludes] Given the nature of the statement at issue, in my view the trial court was fully justified in concluding that it did not constitute a direct promise of immunity or leniency. To the extent the statement constituted an indirect promise to that effect, I am unpersuaded that it rendered McGhee’s confession involuntary. I would affirm the judgment of the trial court.

NFP civil opinions today (1):

Patricia Sue Beck v. Mark Allen Beck (NFP) "Based on the foregoing, we conclude that the trial court did not err in applying the college expenses provision of the parties’ property settlement agreement. Affirmed. "

NFP criminal opinions today (7):

State of Indiana v. Anthony J. Cohee (NFP)

Marvin Guy Riddle v. State of Indiana (NFP)

J.V. v. State of Indiana (NFP)

Antwain Hines v. State of Indiana (NFP)

Larry Weathers v. State of Indiana (NFP)

John B. Myles v. State of Indiana (NFP)

Antonio C. Putman v. State of Indiana (NFP)

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

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

In U.S. v. Wooden (ND Ind., CJ Miller), a 6-page opinion, Judge Easterbrook concludes:

A constitutional obligation to defer action pending an investigation into the possibility that a 911 caller may be out to cause mischief would cripple the emergency- response system; far better to act quickly and later prose- cute any mischief-makers who can be caught. Judges must not underestimate the value of deterrence for 911 callers, as well as for those who may be committing other crimes, for as this case shows callers’ identity may be pinned down with enough time, whether or not they identify themselves. If this 911 call was an effort by someone who knew an incriminating fact (that Wooden was carrying a gun) to mislead the police by asserting something else that was not true (that Wooden had drawn his gun to intimidate a companion), the best remedy is to prosecute the caller rather than allow a gun-toting felon to escape punishment. The judgment of the district court therefore is AFFIRMED.

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

Courts - "California judges will lose the perks unless lawmakers decide to help"

From an interesting story by Mike McKee of The Recorder:

Any hope the California Supreme Court might resolve a politically sensitive imbroglio over extra judicial benefits dissipated Tuesday when the high court refused to review the case that stirred things up.

The Supreme Court's unanimous vote -- minus participation by Justice Kathryn Mickle Werdegar, who was absent -- means the judges will lose the perks unless lawmakers decide to help.

The Supreme Court's decision to not take up Sturgeon v. County of Los Angeles , S168408, lets stand a lower court ruling that could void L.A. County's 20-year practice of supplementing judges' $178,000 salaries and state-provided benefits with perks that amounted to almost $50,000 a year.

The Oct. 10 ruling by San Diego's 4th District Court of Appeal held that the practice violated the state Constitution's requirement that the Legislature "prescribe compensation for judges." County-funded judicial perks occur in many of the state's 58 counties, but Los Angeles' appear to be the most lucrative.

One wonders if the result in Indiana would be just the opposite. Our Constitution states:
Art. 7, Section 19. Pay. The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office. (History: As Amended November 3, 1970).
See, for instance, this ILB entry from Dec. 4, 2007, headed "Retired Grant Circuit Judge Thomas Hunt wins pay suit,"and its related links.

Posted by Marcia Oddi on Monday, December 29, 2008
Posted to Courts in general

Ind. Law - "Who must use seat belts?"

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on Indiana's seat belt law. Some quotes from the story:

Just a few years ago, people in pickup trucks were not required to wear seat belts.

But Indiana law now requires people, whether they're in a car or truck, to wear a seat belt. Children younger than 8 must be restrained in a child safety seat or booster seat.

And, whereas police once had to stop a person for an offense like speeding in order to ticket them for a seat belt violation, authorities can now pull a person over solely for not wearing a seat belt.

Indiana law also makes it illegal to ride in the bed of a pickup truck or to have more occupants in a vehicle than there are seat belts.

The strengthening of the seat belt law and the use of Click It or Ticket seat belt enforcement blitzes has combined to increase seat belt usage, officials say. * * *

There are some people who don't have to wear seat belts, including those who have a doctor's note exempting them, delivery drivers who make frequent stops, driver examiners, people in a farm truck on a farm, people in a parade, people riding in the back of a recreational vehicle or ambulance, people in the sleeping area of a semi, people riding in a public utility vehicle in an emergency and occupants other than the operator of a garbage truck, truck on a construction site or tow truck.

The child restraint laws don't apply in the cases of school buses, taxi cabs, ambulances, religious or youth vehicles that seat at least 10, antique vehicles, motorcycles, law enforcement vehicles, vehicles being used in an emergency and funeral vehicles in a procession or returning from one.

Readers may recall a controversy over whether occupants of a truck bed are actually covered by the seat belt law. See, for example, this ILB entry from July 10, 2007. Please correct me if I'm wrong, but I'm not aware that the statutes have been clarified.

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

Courts - "Court weighs whether to identify authors of critical and anonymous postings on the Internet"

Recalling these earlier ILB entries:

  • "Harsh Words Die Hard on the Web": Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks - Sept. 6, 2008

  • "Two Indiana newspapers fight anonymous poster identity subpoenas" - Sept. 22, 2008
Tricia Bishop of the Baltimore Sun reported Sunday in a story that began:
You may not be as anonymous online as you think.

Maryland's highest court will soon decide how easy it is to unmask those who use pseudonyms to post critical comments on the Internet. So far, the state has been operating without a set of rules for identifying those people, but the issue has surfaced over criticism of an Eastern Shore developer.

The issue of Internet anonymity has cropped up in other courts around the country, but this is the first time that Maryland's Court of Appeals has confronted it. This month, the judges heard arguments that invoked the right to anonymous free speech and the right of defamed people to sue their attackers.

The outcome will have implications for the thousands of people who post critical comments, true or not, on Internet message boards, chat rooms and blogs.

Decisions in similar cases around the country have varied.

A Delaware Superior Court ordered Comcast to divulge the identity of an Internet poster critical of a councilman who filed a lawsuit. But the decision was overturned by the state's Supreme Court in 2005 "because the trial judge applied a standard insufficiently protective of [the poster's] First Amendment right to speak anonymously." A year earlier, a Texas court said an Internet poster couldn't file a lawsuit response anonymously even though he claimed the suit targeting him was intended to silence critics.

Web sites themselves, meanwhile, have not generally been held liable for carrying such critical comments - a policy enshrined in federal law and designed to encourage the free flow of opinion, information and ideas online.

Posted by Marcia Oddi on Monday, December 29, 2008
Posted to Courts in general

Ind. Courts - "Floyd County's newest judge a history maker"

Harold J. Adams reports today in the Louisville Courier Journal:

She's a new judge in a new court -- and she made history in Floyd County.

Real estate attorney Maria Granger will be sworn in Wednesday as judge of the newly created Floyd Superior Court 3, and in the process she will become the county's first African-American judge.

In fact, Indiana has never had an African-American judge south of Bloomington and has had only one south of Indianapolis, according to Lake County Circuit Judge Lorenzo Arredondo, vice chairman of the Indiana Supreme Court's Commission on Race and Gender Fairness.

Granger, 39, a Democrat and former deputy prosecutor in the county, defeated Republican Rick Fox in the Nov. 4 election.

"It's great that we finally have a minority elected in Floyd County," said Nicole Yates, president of the New Albany chapter of the NAACP and a Granger friend.

But the campaign focused on the qualifications of the candidates rather than the potential precedent-setting outcome.

Granger said she avoided race and other demographic labels such as age while campaigning.

"I considered that a distraction" from the question of who was better qualified, she said. * * *

Granger is a native of Washington in Daviess County. She graduated from Washington High School in 1987, Indiana University in 1990 and the IU Law School at Indianapolis in 1994.

In addition to being a former deputy prosecutor, she has served as a hearing officer appointed by the Supreme Court to hear evidence in cases where Indiana attorneys are accused of misconduct and recommend disciplinary action for the high court to consider.

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

Ind. Decisions - Upcoming oral arguments this week

No oral arguments are scheduled this week before either the Supreme Court or the Court of Appeals.

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

Sunday, December 28, 2008

Environment - "IDEM stops giving fines, punishments"

The Gary Post-Tribune has a story today by Gitte Laasby that begins:

MERRILLVILLE -- The Indiana Department of Environmental Management has stopped issuing fines against other state agencies in Indiana that violate their environmental permits.

For instance, the Indiana Department of Transportation violated wastewater permits for rest stops across the state more than 550 times over four years. It discharged sludge and ammonia into streams, causing algae blooms and potential damage to aquatic life. But INDOT got no fines. It got off with a legal slap on the wrist.

However, in my opinion, this story misses its mark.

First, Agreed Orders are the normal manner of resolving alleged violations of IDEM laws and rules. An agreement is reached between the party and IDEM, and is spelled out in an Agreed Order. The Order details the alleged violations, and the party agrees to what is often a variety of remedies. An important element of most Agreed Orders is a list of steps the party agrees to take in order to bring itself into compliance with the law. Often, but not always, the party also agrees to pay a specific civil penalty. Frequently, the Agreed Order in addition will list "stipulated penalties" that will become due if the party fails in some of the compliance steps agreed to.

(Where a party refuses an offer of an Agreed Order, IDEM will issue a Commissioner's Order, mandating actions and generally also imposing a civil penalty. As these are not settlements, they may be appealed. Only about 4.5% of enforcement actions are Commissioner's orders, as opposed to Agreed Orders.)

Whether or not to impose a monetary penalty on another state agency for violation of environmental requirements has been an issue debated at IDEM since its inception in the mid-1980s. I don't recall any Agreed Orders where this was done. The rationale is that with monetary penalties you are simply moving money from one state agency account to another, while the actual environmental practices may not be adequately addressed. Better, the theory goes, is to work with the errant agency to heighten its awareness and change its practices.

An example of this in action is set out in the INDOT Agreed Orders cited in the story -- 14208 is one of them. The details and current status of the violations (a number of which occurred in 2003), and what has been done since each of the violations were first noted, are detailed in pp. 1-20, where the Order itself begins, listing the specific additional steps Respondent INDOT binds itself to take to bring itself into compliance. This 27-page agreement seems much more than "a legal slap on the wrist."

In contrast, the story today cites Gary Tractor and Equipment, 14300, a private company. In this case, the Respondent agreed to pay a $5,000 civil penalty (see #14), plus meet a compliance schedule. A stipulated penalty table sets out additional penalties for failure to meet the timetable.

In sum, yes there is a $5,000 civil penalty imposed on the private company, but none on INDOT, an agency in the executive branch of government. But in each case the Respondent has entered into a binding legal settlement, committing itself to perform the steps necessary to achieve environmental compliance.

Posted by Marcia Oddi on Sunday, December 28, 2008
Posted to Environment

Legislative Benefits - Still more on: "Miller to seek lobbying curbs again"

Updating this ILB entry from Dec. 7, this item in the Indianapolis Star's "Behind Closed Doors" column this Sunday:

Lobbying legislation on tap

Momentum is building behind legislation that would require a one-year cooling-off period for lawmakers who want to take a job as a lobbyist.

Sen. Patricia L. Miller, R-Indianapolis, introduced such a bill earlier this month, and House Minority Leader Brian Bosma, R-Indianapolis, announced last week he plans to introduce similar legislation.

Bosma has backed similar legislation before, but it has failed to pass out of committee.

"More than half of the states have cooling-off periods," Bosma said. "The time has come for the General Assembly to embrace this same transparency."

The House in recent years has seen a handful of lawmakers leave the chamber for lobbying jobs.

Former Reps. Matt Whetstone, R-Brownsburg, and Robert Kuzman, D-Crown Point, did so before the 2008 session, as did former Rep. Luke Messer, R-Shelbyville, before the 2007 session.

Bosma called the cooling-off period "an important step in establishing more trust between Hoosier voters and their government."

Posted by Marcia Oddi on Sunday, December 28, 2008
Posted to Legislative Benefits

Ind. Courts - "Wieser's hat in ring for U.S. attorney"

Mark Kiesling, columnist for the NWI Times, writes today in a column that begins:

Since 1981, every U.S. attorney for the Northern District of Indiana has come from Lake or Porter counties, and if I was a betting man I'd say the trend is going to continue.

As president, Barack Obama will name all new U.S. attorneys, and if I had any money left after Christmas I would put some of it on Schererville lawyer Jim Wieser.

Wieser, 61, a longtime fixture in Democratic circles, was in on the bottom floor of the Obama campaign in Lake County. He was also instrumental in getting a judge to order early voting centers open in Hammond, Gary and East Chicago, a key to Obama's success in Lake County and his eventual victory in Indiana.

For having helped make Obama the first Democrat to win Indiana since Lyndon Johnson, it's natural for Obama's guys to look to Wieser as someone who can make things happen.

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

Ind. Courts - Further follow-up on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"

Updating this ILB entry from Oct. 8th, which began:

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."
Today Pablo Ros has this story in the South Bend Tribune. It begins
SOUTH BEND — St. Joseph Probate Court Judge Peter J. Nemeth stopped sending girls to the Indianapolis Girls School in 2007 after his staff found that girls were neither receiving adequate education nor being prepared for re-entry into the community.

Nemeth's staff also found that the girls were apparently being allowed to have frequent sex with each other.

But Nemeth has resumed sending girls to the only state-run facility for female juveniles, after his staff in September found that much-needed improvements had been made. The only lingering concerns, Nemeth said, were the need for at least two more psychologists, and for closer supervision of girls when they shower, in order to prevent overt sexual behavior.

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

Saturday, December 27, 2008

Law - "Laws to Track Sex Offenders Encouraging Homelessness"

Karl Vick of the Washington Post has a lengthy story today that begins:

LOS ANGELES -- Upon release from state custody, Ross Wollschlager began an intensive search for a home, one that abided by the restrictions imposed on convicted sex offenders in California -- and, in various versions, by about 30 other states. Obliged by law to return to Ventura County, the convicted rapist was forbidden to sleep within 2,000 feet of a school or a park.

He ended up in a tent on the dry bed of the Ventura River.

Strict new laws aimed at keeping track of sex offenders after they leave prison appear to be having the opposite effect, encouraging homelessness in a population believed more likely to re-offend if cast into the streets without structure or family support, say prosecutors, police, parole officials and experts on managing sex offenders.

The issue is starkest in California, where the number of sex crime parolees registering as transient has jumped more than 800 percent since Proposition 83 was passed in November 2006. The "Jessica's Law" initiative imposed strict residency rules and called for all offenders to wear Global Positioning System bracelets for the rest of their lives.

Posted by Marcia Oddi on Saturday, December 27, 2008
Posted to General Law Related

Environment - "Environmentalists worry about Ind. agency changes"

Updating this ILB entry from Dec. 24th, the Peru Tribune today has a long AP story that includes these quotes:

INDIANAPOLIS (AP) - Environmental groups alarmed by changes either in the works or recently implemented by Indiana's environmental agency are warning that the policy shifts could weaken protections for the state's air, land and water.

The change drawing the most concern will mean that before the state imposes penalties against polluters it would need evidence that a discharge, emission or spill had caused ‘‘actual'' or ‘‘significant'' threats to human health or safety or damage to the environment.

Environmental watchdogs have raised the possibility of suing over that change, which is at the heart of the Indiana Department of Environmental Management's recent move to redefine what constitutes serious environmental violations.

Kim Ferraro, a Valparaiso attorney for the Legal Environmental Aid Foundation, said the policy changes seem poised to undermine IDEM's efforts to regulate industries, businesses and municipalities and therefore weaken its mission of protecting the state's environment.

She said tying penalties to evidence of harm to humans or the environment is a flawed approach because years often pass before the impact of pollution becomes known.

‘‘If you're completely gutting IDEM's ability to enforce the law and waiting until actual harm is done, then there's really kind of no point in having the agency,'' Ferraro said.

Word of the pending policy change came as environmental activists were absorbing the news that IDEM has dissolved its Office of Enforcement, which responds to environmental violations and ensures businesses with a history of polluting comply with their permits.

IDEM is moving its 35 former Office of Enforcement employees from office space they once shared to new, separate offices in its divisions of air, water and land quality, where they will handle enforcement issue specific to those programs.

The agency maintains that the staffing change will make its enforcement process more efficient as well as more ‘‘speedy and effective.''

‘‘We're not ending our enforcement programs - a lot of people seem to be under the impression that we're doing that,'' IDEM spokeswoman Amber Finkelstein said. ‘‘Our goal is to allow the inspectors and enforce staff to work more closely together in order to enhance IDEM's ability to respond to compliance issues." * * *

IDEM officials said the goal of their move to end contracts with local pollution control agencies in Indianapolis and five other parts of the state is to streamline permitting, monitoring and compliance functions statewide.

Janet McCabe, executive director of the health-advocacy group Improving Kids Environment, said IDEM has assured her and others that it will not be scaling back air monitoring functions.

But McCabe, a former commissioner of IDEM's Office of Air Quality, worries that the change will shift decisions on local air quality to agency managers in Indianapolis.

She said IDEM doesn't have enough staff members to keep up the level of work the local air monitoring contracts could accomplish.

‘‘Just the amount of local legwork that's required to engage people is I think just realistically beyond the abilities of a state agency,'' she said.

State Sen. Beverly Gard, R-Greenfield, who is chairwoman of the Indiana Senate's environmental affairs committee, said she has discussed the changes in IDEM's enforcement program structure with agency officials but had not yet been briefed on the other changes.

She planned to find out in early January what the impact of that revised policy would be on how environmental violations will be handled. Gard said that environmental groups have expressed their concerns about the changes.

‘‘As far as the enforcement program, I guess my personal opinion is to give this a chance to work,'' she said. ‘‘There have been changes in IDEM's administrative structure under every governor.''

Gov. Mitch Daniels, who begins his second four-year term on Jan. 5, maintains that the changes will strengthen environmental protection in Indiana.

Posted by Marcia Oddi on Saturday, December 27, 2008
Posted to Environment

Ind. Gov't. - "Indiana Register Debate Heating Up "

This item was posted Dec. 25th in the Indiana Coalition for Open Government blog.

Posted by Marcia Oddi on Saturday, December 27, 2008
Posted to Indiana Government

Environment - Governor's office decrys reporter's use of public records law

This is about environment, and it is also about Indiana government. Gitte Laasby, environmental reporter for the Gary Post-Tribune, sent out this note to those on her e-mail list:

Remember that we asked Gov. Mitch Daniels' office whether the office only gets reports about positive, negative and neutral media coverage of the Indiana Department of Environmental Management or whether it's all departments? The office wouldn't answer the question so we made a public information request to get our answer. My editor wrote this column about the letter I got from the governor's office after they received my request.
Here is the column in today's paper, written by Rich Jackson, the Porter County editor for the Post-Tribune:
"I would also like to take this opportunity to note that your constant requests over the last several months have necessitated the expenditure of dozens -- if not hundreds -- of man hours by multiple state employees, who must scroll and review thousands of electronic documents that may or may not be covered by your fishing expeditions. Your latest request will trigger another such waste of time that is not in the public interest but is, nonetheless and unfortunately, within your power to inflict."

-- J. Sebastian Smelko, associate general counsel in Gov. Mitch Daniels' office.

That's a surprisingly snarky answer from an attorney for Gov. Mitch Daniels to Post-Tribune reporter Gitte Laasby.

If it's hard to understand, let me lay out my own hunt for the snark (with a shout out to Lewis Carroll).

In response to a previous open-records request, Laasby received multiple reports from officials at the Indiana Department of Environmental Management to Daniels' office. The document tracked media reports of the agency, labeling them so the governor's office could understand what the public sees about the department that is supposed to oversee environmental issues in the state.

The media reports were marked as positive, negative or neutral.

Laasby wrote about the media reports to Daniels, but the governor's office refused to comment about them. Further, it refused any comment whatsoever, including a response to whether any other agency sent similar reports to his office.

Laasby then did what any good reporter would do. She filed an open-records request, seeking similar reports from other state agencies to Daniels' office. Because they refused to speak to Hoosiers via the Post-Tribune, she used the law.

That's first-year law school stuff for J. Sebastian Smelko, a 2008 graduate of Valparaiso University School of Law.

When journalists come across such a strange report tracking media stories -- and essentially labeling them as friendly or unfriendly -- the natural question is: Does any other agency file similar reports? Whether the answer is "yes" or "no," the next question is "Why?"

We asked. We were told "no comment." So we asked again, using a perfectly valid open-records request. It should be noted that Indiana's public access counselor's office estimates that three-fourths of public records complaints come from citizens -- not the dastardly media.

That's where we come to the response of J. Sebastian Smelko.

I hate to let the snark out of the bag, but Laasby has sources who suggest what to request. Not much of the internecine workings of what we know make it to print, mostly because Laasby protects her sources. But the theme is clear: Longtime IDEM professionals deplore the politicization of the department.

And, as much as Laasby and other journalists hate to inflict the law -- as in open records -- on lawyers on the public dole, we do it because authority left unchecked becomes authoritarian.

Posted by Marcia Oddi on Saturday, December 27, 2008
Posted to Environment | Indiana Government

Environment - "Spill renews debate over coal ash: Toxicity, slurry pond safety are questioned"

Updating this ILB entry from Dec. 25th, James Bruggers of the Louisville Courier Journal has this long story today. First, a quote from the middle of the story:

Indiana Department of Environmental Protection spokesman Rob Elstro said he was unable to determine how many ash ponds the state had.
Now taking it from the top:
The fallout from this week's giant coal-ash slurry spill is reaching far beyond the blackened Tennessee valley that's now buried in power-plant waste.
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The spill has reignited the national debate over whether federal standards should be established to store and dispose of the waste left from burning coal.

It's also fueling a debate in Kentucky, which leads the nation in coal-ash production.

The spill is prompting renewed calls for the Kentucky General Assembly to require emergency-action plans for about 200 dams and impoundments (including at least four that contain coal ash) that are considered high-risk -- meaning they could cause death or serious damage if they fail.

State environmental officials are also making sure those high-risk dams are being inspected on schedule -- at least once every two years as the regulations require.

"Anytime something like that occurs, you have to reassess your situation to make sure you aren't vulnerable to the same thing," said Bruce Scott, commissioner of the Kentucky Department of Environmental Protection. "It's absolutely critical we make sure our inspections are occurring and (the inspectors) are checking for everything they need to check for."

The spill also comes at a vulnerable time for the coal industry -- just as a new Congress and President-elect Barack Obama prepare to rewrite the nation's energy policy to tackle climate change, blamed largely on fossil fuels.

"There's going to be a renewed emphasis particularly by the environmental advocacy groups to push against coal," said David Goss, executive director of the American Coal Ash Association. Coal-mining "states like Kentucky and West Virginia have a real battle on their hands."

Early Monday morning at the Tennessee Valley Authority's Kingston Fossil Plant in Harriman, Tenn., a dam broke and a 40-acre coal-ash containment pond spilled about 1 billion gallons of slurried ash over an area about the size of Louisville's Cherokee Park, covering it several feet deep in places and damaging at least 12 homes.

The spill dwarfs the 300 million gallons spilled in 2000 in the Massey Energy coal slurry disaster in Martin County, Ky.

More from the lengthy story:
Scott, with the state environmental agency, said Kentucky has 19 ash ponds at coal-fired power plants. Twelve are contained by some sort of dam, as was the ash at the TVA plant.

The four considered high risk are at Kentucky Power's Big Sandy Plant in Lawrence County; Kentucky Utilities' E.W. Brown Generating Station in Mercer County and Ghent Generating Station in Carroll County; and LG&E's Cane Run Generating Station in Jefferson County.

LG&E's Mill Creek plant has one of two "moderate risk" ponds in the state.

Scott said he's not aware of any Kentucky ponds where huge quantities of ash are allowed to pile up behind a dam, as the TVA allowed in Tennessee. The six other Kentucky ash ponds are dug into the ground, with no dams that could fail, he said.

"We don't have any mountains of ash," said Chris Whelan, a spokeswoman for E.On U.S., corporate parent of KU and LG&E. She said they expand the size of the ponds, if needed, and try as much as possible to use the ash. * * *

Ever since the Martin County spill, environmentalists and coal field residents pushed harder to require that impoundments classified as moderate or high hazard have a functioning emergency-action plan, said Tom FitzGerald, director of the Kentucky Resources Council.

These plans would identify emergency scenarios in case of a failure.

They would also determine who is at risk by mapping the potential "foot print" of any flood or spill, and include a public notification plan, FitzGerald said.

The lessons of the TVA spill are clear, said Judy Petersen, with Kentucky Waterways Alliance: "We just can't put all this waste in these huge ponds and expect it to be safe." * * *

With images of the blackened Tennessee landscape getting national attention, some environmentalists are asking whether coal can ever be described as a "clean" fuel.

That's a key debate to Kentucky and Indiana, which get more than 90 percent of their electricity from coal.

Taker a look at this LCJ slideshow titled "Coal ash near Louisville."

Posted by Marcia Oddi on Saturday, December 27, 2008
Posted to Environment

Ind. Decisions - "Rose Hill Estates residents lose; Plan Commission wins on appeal"

The Court of Appeals decision Dec. 24th in the case of Town of Chesterton Advisory Plan Commission v. Roger V. Abraham, Jr. et al (NFP) (see ILB summary here) was the subject of a story reported by Luke Nevers in the Dec. 26th Chesterton Tribune. Some quotes:

It took the better part of the year, but in the end the Chesterton Advisory Plan Commission won, residents of the Rose Hill Estates subdivision lost, and Porter Circuit Court Judge Mary Harper has found herself reversed.

On Wednesday the Indiana Court of Appeals sided with the Plan Commission and overturned Harper’s ruling in November 2007 which vacated the secondary plat of Phase IV of Rose Hill Estates, a planned unit development located on the north side of 1100N east of Bethlehem Lutheran Church.

Harper issued her ruling vacating Phase IV of Rose Hill—otherwise known as Lot 73—after residents of the subdivision petitioned for a vacation on three grounds: that the primary plat, approved by the Plan Commission in August 2002, shows only a blank spot for Lot 73 and does not specifically reference the 48 townhouse units which developer Randy Hall had proposed building there; that Hall had given residents reason to believe that Lot 73 would remain an undeveloped nature preserve; and that the Plan Commission did not hold a public hearing prior to approval of the secondary plat.

The Rose Hill PUD ordinance, endorsed by the Plan Commission and approved by the Town Council, does specify a maximum of 48 townhouse units in 24 structures on Lot 73—without, however, indicating their actual number and location—and required Hall to appear before the Plan Commission to secure secondary plat to settle those issues before he could build.

The Plan Commission subsequently approved the secondary plat for Lot 73 in March 2006, over the objections of Rose Hill residents, who remonstrated on the grounds that the secondary plat differed from the primary plat in that the latter only showed a blank spot. The residents also protested the fact that they were not allowed formally to voice their objections in the context of a public hearing.

Harper sided with the residents and vacated the secondary plat approval and ordered Hall—if he still wants to build those 48 units on Lot 73—to start from scratch, submit a new primary plat, and answer residents’ remonstrations at a public hearing.

More from the story:
In overturning Harper, the Court of Appeals ruled on two substantive issues:

• Whether the Plan Commission even has standing to pursue an appeal in the first place. The Rose Hill residents contended that the Plan Commission does not.

• Whether Harper erred in granting the residents’ petition for vacation. The Plan Commission contended that she did.

The Court of Appeals disposed of the standing issue first and ruled that the Plan Commission does indeed have the legal right to pursue an appeal, for three separate reasons:

• The Plan Commission was a “party of record in the trial court” and therefore “shall be party on appeal,” the Court of Appeals stated.

•Indiana Code explicitly confers standing on the Plan Commission. Thus I.C. 36-7-4-1016, the Court of Appeals cited, indicates that decisions reached by a plan commission regarding plat approval “may be reviewed by certiorari procedures in the same manner as that provided by the appeal of a decision by a board of zoning appeals.” By extension, the Court of Appeals further cited, under I.C. 36-7-4-1011 “An appeal may be taken to the court of appeals from the final judgment of the court reversing, affirming, or modifying the decision of the board of zoning appeals.”

• Finally, the Rose Hill residents themselves “invited” the Plan Commission to appeal by naming it as a party to begin with. “Therefore, if there is any error in allowing the commission to pursue this appeal, the neighbors invited the error, and cannot now complain on appeal,” the Court of Appeals stated.

On the second issue—whether Harper erred in granting the residents’ petition for vacation—the Court of Appeals ruled that she did, because the Rose Hill residents failed to submit their petition for vacation within the statutory 30-day deadline.

In fact, the Court of Appeals ruled, the clock on the 30-day deadline began ticking not after the Plan Commission granted secondary plat approval in March 2006 but after it granted primary plat approval in August 2002, more than three years earlier.

“The claims the neighbors now make concerning the lack of specificity in the primary plat,” the Court of Appeals stated, “could have and should have been made at the time of primary plat approval in 2002. . . . (W)e acknowledge that the secondary plat of Lot 73 made substantive changes to the primary plat. However, it was known at the time the primary plat was approved that the 24 structures and 48 living units ultimately planned by the developer on and allowed by the ordinance on Lot 73 were not shown on the plat. If that did not comply with the Town of Chesterton subdivision control ordinance, the time to raise the issue was within 30 days of primary plat approval. Accordingly, the neighbors’ petition, filed nearly four years after the commission granted primary plat approval to the Rose Hill PUD, was untimely and the trial court had no jurisdiction to entertain the petition.”

Appeals Court Judge C. Riley did issue a dissenting opinion on the matter of standing, concluding that the Plan Commission has none “to participate in the judicial review of its own decision.”

Posted by Marcia Oddi on Saturday, December 27, 2008
Posted to Ind. App.Ct. Decisions

Friday, December 26, 2008

Ind. Gov't. - Yet more on "State group appears victor for Lincoln Museum items"

Updating this ILB entry from Dec. 13th, one of the deciding factors in Indiana's success in retaining the contents of the Lincoln Museum was reportedly the ability of the Allen County library to digitize documents. More about that today in this lengthy story reported by Angela Mapes Turner of the Fort Wayne Journal Gazette. Some quotes:

Deep in the catacombs of the Allen County Library, in a darkened room, 10 black-cloaked “scribes” quietly pore over yellowed texts * * * .

But these scribes aren’t people – they’re state-of-the-art scanning machines from non-profit Internet Archive, the library basement’s out-of-sight secret. The basement lab will play a vital role in digitizing the former Lincoln Museum collection for public access.

Though housed in the library, Internet Archive is an independent operation, part of a national network of scanning centers that put rare books and documents on the Internet for public consumption.

Each scribe in the archive is a high-tech scanner, with a glass overlay to hold books open. An operator raises and lowers the overlay using a foot pedal, allowing pages to be turned easily.

In Allen County, the operation is directed by Jeff Sharpe, an enthusiastic advocate of the archive project who gives off a professorial vibe in his tweed blazer and glasses.

The project got off the ground in Allen County through support of Microsoft, which launched a project to scan books and scholarly articles for posting online.

In May, Microsoft announced it would end its support of the project, and some in Allen County worried the project would end before it got off the ground.

But Microsoft donated the machines to the Allen County library – a setup worth about $1 million, Sharpe said – and the project continues.

Internet Archive has other regional scanning centers in Boston, Toronto, Los Angeles and Washington, D.C.

Sharpe realizes Fort Wayne is playing in the big leagues. Other scanning centers are located in places such as the Library of Congress and the Princeton Theological Seminary.

That’s why he was so pleased by the announcement this month that the Fort Wayne center would help digitize the Lincoln Museum collection.

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

Environment - "Coal Ash Spill Revives Issue of Its Hazards"

That is the headline to a lengthy story published Dec. 24 in the NY Times. Some quotes:

KINGSTON, Tenn. — What may be the nation’s largest spill of coal ash lay thick and largely untouched over hundreds of acres of land and waterways Wednesday after a dam broke this week, as officials and environmentalists argued over its potential toxicity.

Federal studies have long shown coal ash to contain significant quantities of heavy metals like arsenic, lead and selenium, which can cause cancer and neurological problems. But with no official word on the dangers of the sludge in Tennessee, displaced residents spent Christmas Eve worried about their health and their property, and wondering what to do.

The spill took place at the Kingston Fossil Plant, a Tennessee Valley Authority generating plant about 40 miles west of Knoxville on the banks of the Emory River, which feeds into the Clinch River, and then the Tennessee River just downstream. * * *

Even as the authority played down the risks, the spill reignited a debate over whether the federal government should regulate coal ash as a hazardous material. Similar ponds and mounds of ash exist at hundreds of coal plants around the nation. * * *

[A] draft report last year by the federal Environmental Protection Agency found that fly ash, a byproduct of the burning of coal to produce electricity, does contain significant amounts of carcinogens and retains the heavy metal present in coal in far higher concentrations. The report found that the concentrations of arsenic to which people might be exposed through drinking water contaminated by fly ash could increase cancer risks several hundredfold.

Similarly, a 2006 study by the federally chartered National Research Council found that these coal-burning byproducts “often contain a mixture of metals and other constituents in sufficient quantities that they may pose public health and environmental concerns if improperly managed.” The study said “risks to human health and ecosystems” might occur when these contaminants entered drinking water supplies or surface water bodies.

In 2000, the Environmental Protection Agency proposed stricter federal controls of coal ash, but backed away in the face of fierce opposition from utilities, the coal industry, and Clinton administration officials. At the time, the Edison Electric Institute, an association of power utilities, estimated that the industry would have to spend up to $5 billion in additional cleanup costs if the substance were declared hazardous. Since then, environmentalists have urged tighter federal standards, and the E.P.A. is reconsidering its decision not to classify the waste as hazardous. * * *

Environmentalists pointed to the accident as proof of their long-held assertion that there is no such thing as “clean coal,” noting two factors that may have contributed to the scale of the disaster. First, as coal plants have gotten better at controlling air pollution, the toxic substances that would have been spewed into the air have been shifted to solid byproducts like fly ash, and the production of such postcombustion waste, as it is called, has increased sharply.

Second, the Kingston plant, surrounded by residential tracts, had little room to grow and simply piled its ash higher and higher, though officials said the pond whose wall gave way was not over capacity.

Environmental groups have long pressed for coal ash to be buried in lined landfills to prevent the leaching of metals into the soil and groundwater, a recommendation borne out by the 2006 E.P.A. report. * * *

United States coal plants produce 129 million tons of postcombustion byproducts a year, the second-largest waste stream in the country, after municipal solid waste. That is enough to fill more than a million railroad coal cars, according to the National Research Council.

Another 2007 E.P.A. report said that over about a decade, 67 towns in 26 states had their groundwater contaminated by heavy metals from such dumps.

For instance, in Anne Arundel County, Md., between Baltimore and Annapolis, residential wells were polluted by heavy metals, including thallium, cadmium and arsenic, leaching from a sand-and-gravel pit where ash from a local power plant had been dumped since the mid-1990s by the Baltimore Gas and Electric Company. Maryland fined the company $1 million in 2007.

Coal ash has long been an issue in Indiana. See this ILB report from Feb. 10, 2004, with a number of stories focusing on the Town of Pines in the Dunes National Lakeshore, along with this one from Feb 15th of 2004. This entry from Feb. 22, 2004 reports: "Town of Pines (Indiana) groundwater contamination the subject of national report."

Another group of ILB entries deals with disposal of coal ash in strip mines, including entries from April 25, 2004; April 29, 2004; Oct. 6, 2004 ("Critics: IPL's plan to use ash as fill is risky: Utility disputes the charge that putting coal ash in a flood plain could foul waterways"); and this entry from Aug. 25, 2006 ("A permit has been overturned that would have allowed the owner of the Rockport River Terminal to use waste from a nearby power plant as construction fill near the town water supply").

Posted by Marcia Oddi on Friday, December 26, 2008
Posted to Environment

Thursday, December 25, 2008

Courts - 6th Circuit strikes down down Kentucky's direct-selling restrictions

Michael Doyle of McClatchy Newspapers reported Dec. 24th:

WASHINGTON -- A 2005 Supreme Court opinion is the gift that keeps on giving for California winemakers hoping to sell directly to customers in other states.

It also has been proof that the law of unintended consequences lives on, however.

Continuing their legal winning streak, winemakers won an opportunity Wednesday to open up the Kentucky market. A federal appellate panel upheld a trial court's decision striking down Kentucky's direct-selling restrictions.

"The in-person purchase requirement in portions of Kentucky's statutory scheme discriminated against interstate commerce by limiting the ability of out-of-state small farm wineries to sell and ship wine to Kentucky consumers," the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled.

The Kentucky law in question permitted out-of-state wineries to ship directly only to customers who purchased the wine in person. Wineries that violated the law faced criminal penalties. * * *

"For a year and a half after the Supreme Court decision, it was like Valhalla," said Scott Miller, a winemaker in California's El Dorado County. "We saw a dramatic increase in out-of-state sales. But now, we have absolutely no cohesiveness in what we can and cannot do."

Miller, the owner of Single Leaf Vineyards in the small Sierra Nevada foothills town of Somerset, said different laws had been proliferating in different states since 2005. He called the result "an absolute zoo" that has complicated business for "mom and pop" wineries such as his own.

San Francisco-based attorney Tracy Genesen, for instance, noted that the 7th U.S. Circuit Court of Appeals, covering Midwestern states, recently upheld the same kind of in-person purchase requirements that the 6th Circuit judges deemed unconstitutional. The conflicting rulings governing Kentucky and Indiana could set the stage for a return to the Supreme Court, Genesen suggested.

Genesen, who's with the firm Kirkland & Ellis, won a separate case last month on behalf of the Family Winemakers of California striking down a Massachusetts law. It restricted the size of wineries that could ship directly to consumers, a tactic akin to what other states have tried.

"We've had wholesalers and some regulators acting in tandem to erect roadblocks to direct shipping," Genesen said. [Emphasis added by ILB]

See also this Oct. 25th ILB entry where the 6th Circuit found a Tenessee wine law unconstitutional.

[More]
Here is a link to the 17-page, Dec. 24th opinion of the 6th Circuit in the case of Cherry Hill Vineyards v. Lilly. (Note that James Alexander Tanford, INDIANA UNIVERSITY SCHOOL OF LAW, Bloomington, Indiana, appeared for Appellees.)

Posted by Marcia Oddi on Thursday, December 25, 2008
Posted to Courts in general

Ind. Law - "16 is Indiana's legal age of consent"

Here is Ken Kosky's "It's the Law" column in the NWI Times that I missed a month ago -- Nov. 24th to be exact. It focuses on "the age of consent and sex crimes against those who are not of the age of consent." From the story:

Even though a person can face serious prison time for engaging in sexual acts with someone under the age of consent, quite a few people don't even know the age of consent.

"The age of consent in Indiana is 16. There's a presumption in the law that prior to 16, you're not capable of consenting," Porter County Prosecutor Brian Gensel said.

Gensel said prosecutors have long used discretion when deciding whether to file charges in borderline cases -- like when an 18-year-old male is in a dating/sexual relationship with a girl who is about to turn 16.

Gensel said Indiana law was amended within the past few years to address such cases. Indiana law now states a person can have sex with someone under the age of consent as long as he or she is not more than four years older than the underage person and if the relationship was ongoing. So, a 19-year-old can be with a 15-year-old.

A person accused of a sex crime also might be able to avoid prosecution if he or she can prove they reasonably believed the victim was at least 16 years old.

The main laws that apply to people who engage in sexual activity with an underage person are child molesting and sexual misconduct with a minor.

Child molesting is defined as having intercourse or engaging in deviate sexual conduct with a child younger than 14. The Class B felony, punishable by as many as 20 years in prison, becomes a Class A felony, punishable by as many as 50 years in prison, if the perpetrator is at least 21; if the act was committed with a weapon or threat of force; if serious bodily injury results; or if the person knew the victim was slipped a drug without his or her knowledge.

Sexual misconduct with a minor is defined as a person at least 18 years of age engaging in intercourse or deviate sexual conduct with someone aged 14 or 15. The Class C felony, punishable by as many as eight years in prison, becomes a Class B felony if committed by someone at least 21. It becomes a Class A felony if committed while armed, if injury occurs or if drugs were slipped to the victim. If only fondling is involved, the offense drops one felony level.

The age of consent varies from state to state.

Here is a related story quoted in an ILB entry from July 8, 2007, headed "New law 'decriminalizes' some teen sex: 'Romeo and Juliet defense' may apply to couples." The story from the Lafayette Journal & Courier began:
For years in Indiana, the age at which a person could legally consent to have sex was 16.

But lawyers for young defendants accused of having sex with 14- and 15-year-olds now can pose a defense against charges of sexual misconduct with a minor.

Public Law 216 [HEA 1386], which went into effect July 1, contains a long list of criminal law changes related to sexual and violent offenses and the Indiana Sex Offender Registry, which has been renamed the Sex and Violent Offender Registry.

Among those changes, the law creates a legal defense, nicknamed the "Romeo and Juliet defense," against charges of sexual misconduct with a minor.

"The change in the law decriminalizes consensual sex among teenagers in a dating relationship if they are within four years age difference," said Larry Landis, executive director of the Indiana Public Defender Council.

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

Ind. Courts - More on "Accused Schererville attorney withdraws law license"

Updating this ILB entry from Dec. 18th, and this entry from Oct. 23rd headed "Attorney Crabtree charged with embezzling $1 million," Andy Grimm of the Gary Post-Tribune reports today under the heading "Attorney faces even more charges." From the story:

Federal prosecutors have added counts of mail fraud and tax evasion to the charges against a Schererville attorney who allegedly stole more than $2 million from his clients.

William Crabtree II allegedly used an elaborate series of forged checks, phony receipts, and bank transfers to steal money -- and cover up his thefts -- from clients of his law firm and a title company he owned. The allegations included in a new indictment filed by federal prosecutors add detail to charges filed against Crabtree in October.

"Crabtree engaged in a scheme to defraud that involved misappropriating at least $2.2 million from his clients," the indictment states. Crabtree spent the money on "himself and others, and paid back money to another client."

Crabtree was charged in October with two counts of wire fraud and a single count of mail fraud stemming from allegedly illegal transactions involving a client who received a large sum from a relative's estate and a client involved in a real estate deal.

Crabtree allegedly took money the estate client had intended to use to pay state and federal taxes -- which led to the tax evasion charges added this week to his indictment -- and then took money from another client to cover up the theft.

The new charges also state that Crabtree in 2006 also convinced a client to invest in a bogus condominium development in Chicago, creating phony deeds and closing documents, and promising a 20-percent payoff in 2008.

When the same client asked Crabtree to handle the $1.2 million sale of a restaurant in Shelbyville, prosecutors allege the lawyer kept the money and used $785,000 to pay back the estate client, who had discovered the missing tax payments.

When the real estate client asked for the money from the restaurant sale, Crabtree initially said the bank had failed to process a wire transfer, then said he would have to get a loan to pay the client.

Crabtree eventually sent the client a check for $1.2 million, but the check was phony.

Crabtree resigned his law license earlier this month, and has requested a court-appointed attorney because he said he has no money to pay for his defense. The state Supreme Court had suspended his law license and was conducting an investigation that could have led to Crabtree's disbarment.

Posted by Marcia Oddi on Thursday, December 25, 2008
Posted to Indiana Courts

Wednesday, December 24, 2008

Ind. Decisions - A second Supreme Court decision today, perhaps there are others [Updated]

In Therese Newkirk, Personal Representative of the Estate of Martha O'Neal v. Bethlehem Woods Nursing and Rehabilitation Center, a 6-page, 5-0 opinion, Justice Sullivan writes:

This is one of two cases we decide today involving the interaction of the statute of limitations provision of the Indiana Wrongful Death Act (“WDA”) and the statute of limitations provision for an underlying substantive tort claim. In this case, the limitations period for the underlying tort claim had expired before the lawsuit was filed, but the limitations period under the WDA had not. In Technisand, Inc. v. Estate of Melton ex rel. Melton, the other case we decide today, the sequence was reversed: the limitations period under the WDA had expired before the lawsuit was filed, but the limitations period for the underlying tort claim had not. --- N.E.2d ---, No. 30S01-0801-CV-28, slip op. (Ind. Dec. 24, 2008). Our decision in Ellenwine v. Fairley, 846 N.E.2d 657 (Ind. 2006), provides the answer in both cases, as explained below with respect to this case and in our separate opinion with respect to Melton. * * *

The Estate filed its complaint on October 22, 2003, more than two years after the last date upon which Bethlehem’s alleged negligent conduct could have occurred, but less than two years from O’Neal’s death. As discussed above, if death is caused by the malpractice, the malpractice claim terminates at the patient’s death, and a wrongful death claim must be filed by the personal representative within two years of the occurrence of the malpractice. Id. at 665. O’Neal’s death was alleged to have been caused by Bethlehem’s medical malpractice. As such, the wrongful death claim was required to have been filed by her personal representative within two years of the occurrence of the malpractice. The Estate did not do so and the trial court properly concluded that its claim was not timely filed.

[Updated at 3:00 PM] Yes, there is a third opinion today.

In Technisand, Inc. v. Jessie Melton, Personal Representative of the Estate of Patty Melton, a 6-page, 5-0 opinion, Justice Sullivan writes:

This is the second of two cases we decide today involving the interaction of the statute of limitations provision of Indiana‟s Wrongful Death Act (“WDA”), and the statute of limitations provision for an underlying substantive tort claim. Here, the limitations period under the WDA expired before the lawsuit was filed, but the limitations period for the underlying products liability claim had not. Our decision in Ellenwine v. Fairley dictates that the claim was not timely filed. 846 N.E.2d 657, 666 (Ind. 2006). * * *

We hold that a wrongful death claim with an underlying product liability claim must be filed within two years of the date of the decedent‟s death. Therefore, we vacate the decision of the Court of Appeals, and reverse the trial court‟s denial of Technisand‟s motion for summary judgment.

Posted by Marcia Oddi on Wednesday, December 24, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Henry Lewis v. State of Indiana , an 18-page decision with 3 seaprate opinions, Judge Vaidik writes:

Henry Lewis was convicted after a jury trial of burglary as a Class B felony and robbery as a Class B felony. Specifically, Lewis contends that the trial court abused its discretion in admitting identification evidence consisting of photo arrays and in refusing to give his tendered jury instructions regarding eyewitness credibility. He also contends that the evidence is insufficient to support his conviction for robbery as a Class B felony and asks us to reduce it to a Class C felony. Finding no abuse of discretion in the admission of the identification evidence and the refusal of the tendered jury instructions and concluding that the evidence is sufficient to prove that the victim suffered bodily injury, thereby proving Class B felony robbery, we affirm. * * *

CRONE, J., concurs in part and concurs in result in part with separate opinion.
KIRSCH, J., concurs in part and dissents in part with separate opinion.

NFP civil opinions today (5):

Sharon Elaine Edwards, Antoinette Elaine Edwards, et al v. Martin Gary Groff, Ph.D. (NFP)

In the Matter of T.T. (NFP)

Eric D. Smith v. William K. Wilson, et al. (NFP)

Marion County Auditor and Treasurer v. Revival Temple, et al

In Town of Chesterton Advisory Plan Commission v. Roger V. Abraham, Jr. et al (NFP), a 20-page, 2-1 opinion, Judge Robb writes:

The Town of Chesterton Advisory Plan Commission (the “Commission”) appeals the trial court's issuance of a Writ of Certiorari to the petitioners (collectively, the “Neighbors”) and the trial court's Order vacating the Commission's approval of the secondary plat for Rose Hill Estates Planned Unit Development (“Rose Hill PUD”) Lot 73. For our review, the Commission raises two issues: 1) whether the trial court erred in granting the Neighbors' petition for writ of certiorari; and 2) whether the trial court erred in vacating the secondary plat. In addition, we address the following issue raised by the Neighbors: whether the Commission has standing to appeal the trial court's orders. Concluding that the Commission has standing to bring this appeal and that the Neighbors' petition was untimely, we reverse the trial court's order vacating the Commission's secondary plat approval for Lot 73. * * *

For the reasons stated above, the Commission has standing to pursue this appeal. The Neighbors' petition for writ of certiorari alleged deficiencies in the August 15, 2002, approval of the Rose Hill PUD primary plat and was required by statute to be filed within thirty days of that approval. Because it was filed after the time allowed by statute, the trial court had no jurisdiction and its order vacating the secondary plat approval is reversed.

BAKER, C.J., concurs.
RILEY, J., dissents with separate opinion. [which begins] I respectfully dissent. I would dismiss the appeal because the Chesterton Plan Commission does not have standing to pursue this appeal.

NFP criminal opinions today (2):

Jonathan Washington v. State of Indiana (NFP)

Garland Whaley v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court posts one today

[This case is currently erroneously listed online as a COA decision]

In Randall and Marla Wagler, et al. v. West Boggs Sewer District, Inc. , a 10-page, 5-0 opinion, Justice Sullivan writes:

In this case, certain property owners appealed a trial court’s order of condemnation and appropriation in respect of land for sewer easements and persuaded the Court of Appeals to stay the trial court’s order requiring an appeal bond. We assumed jurisdiction of the case to vacate the action of the Court of Appeals and now affirm the judgment of the trial court on the merits.

Posted by Marcia Oddi on Wednesday, December 24, 2008
Posted to Ind. Sup.Ct. Decisions

Law - "Top 10 Wackiest Wine Laws That Still Exist"

Okay, here is #5 on the list:

5. Seven states still enforce Prohibition-era Bans on Election Day - Not even a cocktail in Indiana, Kentucky and South Carolina! ("The only states that still cling to statewide Election Day sales bans of alcohol at restaurants, bars and package stores are Kentucky, Indiana and South Carolina. Utah and West Virginia still ban the sale of alcohol at package stores on Election Day. Alaska and Massachusetts also ban Election Day alcohol sales, except that local governments are authorized to provide an exemption from the ban".) Can you imagine being stuck at an airport on Election Day?
See all 10 here.

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

Ind. Decisions - Tax Court releases 4 NPD opinions, dated Dec. 23

Victory Chevrolet Cadillac v. Wayne Township Assessor (Wayne County, Indiana) (NFP)

Jim Hadley Chevrolet-Cadillac, Inc. v. Madison Township Assessor (Jefferson County, Indiana) (NFP)

Joseph Timmons v. John Scott, as Porter Co. Assessor, et al (NFP)

Studebaker Buick Pontiac GMC, Inc. v. Wayne Township Assessor (Wayne County, Indiana) (NFP)

Posted by Marcia Oddi on Wednesday, December 24, 2008
Posted to Ind. Tax Ct. Decisions

Environment - "IDEM actions raise eyebrows, questions"

Here is a story, reported by Rod Shaw, that appeared in the Dec. 23rd edition of the Martinsville Reporter-Times:

Activists and some elected officials fear recent actions by the Indiana Department of Environmental Management represent a step backward for public health and the envrionment. * * *

IDEM has raised eyebrows with three decisions:

— It is canceling longtime contracts with six local pollution control agencies and assuming authority for all permitting, compliance inspection, air monitoring and complaint response activities in Indiana. Contracts with agencies in Indianapolis, Evansville, Anderson, Gary, Hammond and Vigo County have been funded with money the state receives annually from the federal Environmental Protection Agency.

— It is eliminating its enforcement branch as a separate office within the agency and reassigning enforcement specialists to existing programs.

— It is proposing to change its official enforcement policy in ways that critics say will make it harder to take action against polluters.

IDEM has said that the moves will improve efficiency and compliance with environmental regulations. Critics aren’t buying it.

Janet McCabe, an advocate for children’s health and a member of the Indianapolis Air Pollution Control Board, called the decision to eliminate local agency contracts “a bad one for children’s health in Indiana.”

“With limited state resources and the loss of local expertise, we are certain that the attention to local air quality issues will decrease,” she said in a statement posted on the Web site of the organization she heads, Improving Kids’ Environment.

And it isn’t just activists who are asking questions.

“I am concerned this action by IDEM could be a big step backward in terms of our efforts to mitigate air quality issues,” Evansville Mayor Jonathan Weinzapfel said in a statement posted on his office’s Web site.

Lack of notice is a major complaint of IDEM’s critics. Local agencies said they had no warning their contracts were being axed prior to an IDEM news release on Dec. 1, and there was no formal announcement of the elimination of the IDEM enforcement office before the Gary Post-Tribune broke the news in a story this week.

“Since no specific information has been made available to the public, it is very difficult to determine what the net effect of these changes will be,” wrote Jesse Kharbanda, executive director of the Hoosier Environmental Council, in a letter to IDEM commissioner Thomas Easterly that was posted on the HEC Web site.

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

Ind. Courts - Delaware County prosecutor ordered to repay lawyer fees, seized money

Rick Yencer reports today in the Muncie Star-Press in a story that begins:

Delaware County Prosecutor Mark McKinney and a deputy prosecutor were ordered to repay thousands of dollars in attorney fees and seized money from more than 40 drug forfeiture cases where confidential agreements were used without a court order.
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Delaware Circuit Court 2 Judge Richard Dailey issued the order Tuesday after more than six hours of testimony and evidence in the trial to determine whether McKinney and Deputy Prosecutor Eric Hoffman were entitled to legal fees on civil forfeiture cases that violated the law.

Dailey already ruled last month that McKinney repay $18,392 in attorney fees from 10 cases, but withheld final judgment because more cases were added where confidential settlements were used. There was no immediate estimate for the fees and assets from the 40 cases.

A beleaguered McKinney, who took the stand in his own defense, testified that he never had anything to do with how the city accounted for seized drug money and property that went to the Muncie-Delaware County Drug Task Force through confidential settlements instead of being adjudicated by the court.

And as far as attorney fees that usually were 25 percent of seized money and property, McKinney said, "For me, it was never about the money. It was taking the money from the bad guys that I was concerned about."

If the lawyers were to blame, said McKinney's attorney Kevin McGoff, it was because their client, the city, did not provide them good information.

McGoff argued that former mayor Dan Canan's administration ignored seven years of writeups by the State Board of Accounts because forfeited money and property from accused drug dealers was not going into local government or state coffers as required by law.

More from the story:
McKinney, with his wife Joann nearby, declined to comment, deferring to McGoff, who said he planned to appeal. Bryan also plans an appeal.

Both had tried to remove Dailey as judge. McKinney also attempted this summer to have the Indiana Supreme Court remove Dailey, but the court gave Dailey jurisdiction to adjudicate civil drug forfeiture cases.

The Supreme Court's disciplinary commission continues to investigate a misconduct complaint against McKinney for misleading the court by using confidential settlements in drug forfeitures. A spokesman for the disciplinary commission said this week there still is nothing to announce as to whether McKinney will face disciplinary action.

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

Ind. Courts - "LaPorte deputy prosecutor shot" [Updated]

Stan Maddux, a NWI Times correspondent, reports today:

LAPORTE | LaPorte County Deputy Prosecutor Jennifer Evans remained hospitalized Tuesday after being shot.

Evans, 34, who in November was elected judge of LaPorte Superior Court 3, was expected to survive, LaPorte County Prosecutor Rob Beckman said.

"My understanding is she will fully recover and it's not life threatening," Beckman said. * * *

LaPorte police directed all questions from the media to Beckman, who would not comment on specifics of the case.

He also would not reveal where Evans had been shot.

Beckman did say he was contacted immediately about Evans, a standard practice involving a representative of the prosecutor's office being alerted right away to any shooting.

Given that Evans is a high ranking official, "I'm at the top of the list automatically," Beckman said.

When pressed for answers, Beckman said, "I will not be commenting on the ongoing investigation at this point."

He also would not disclose if any arrests had been made. * * *

LaPorte Superior Court 3 Judge Paul Baldoni said he and his staff also were stunned by the news.

"We were just in a state of shock. It was like somebody kicked us in the stomach," said Baldoni, who chose not to seek re-election after 32-years on the bench.

Baldoni said Evans had been coming into his office in recent weeks to prepare for assuming his duties.

[Updated at 1:55 PM] An AP story begins:
A LaPorte County deputy prosecutor who was elected as a judge last month accidentally shot herself while handling a gun she didn't think was loaded, her husband said.

Jennifer Evans, 34, was grazed in the head by the shot late Monday at her home, her husband, Stephan, told WNDU-TV on Wednesday. She remained hospitalized, but was expected to return home soon, he said.

Here is the story from WNDU-TV.

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

Ind. Decisions - "Court rules on robo call ban: Law applies to political messages"

The Supreme Court's decision yesterday in the case of State of Indiana v. American Family Voices, Inc., Jim Gonzalez, et al (see ILB summary here), is the subject of a story today in the LCJ reported by Lesley Stedman Weidenbener. Some quotes:

INDIANAPOLIS – In a case that began with the Ninth Congressional District race two years ago, the Indiana Supreme Court ruled yesterday that a state law banning pre-recorded, automated phone calls applies to commercial and non-commercial calls -- even those made for political purposes.

The 5-0 decision means Attorney General Steve Carter can proceed with an enforcement action against American Family Voices for allegedly using autodialing machines during the 2006 campaign between Democrat Baron Hill and Republican Mike Sodrel.

But the legal battle may be far from over.

Jim Bopp, a Terre Haute attorney representing the state Republican and Democratic parties in the case, said the court didn't address the larger issue of whether banning automated political calls violates constitutionally protected free speech.

"It could not have been a more limited ruling," Bopp said. "When it goes back to the trial court, those issues can be raised … and we'll be arguing the same issues again."

The focus of the court was whether the 1988 law applied only to calls involving sales or other commercial messages. The ruling was that the law was meant for "all autodialer calls, not just consumer transaction calls with commercial messages." * * *

Although Indiana's law was passed 20 years ago, it wasn't enforced against campaigns until 2006, when [Attorney General Steve] Carter wrote to the parties to warn them that it applied to political calls. The parties abided by the ban, but some out-of-state special-interest groups -- including American Family Voices -- did not.

After receiving six complaints from Ninth District voters, Carter filed a lawsuit against American Family Voices seeking penalties of up to $5,000 for each alleged violation of the law.

Posted by Marcia Oddi on Wednesday, December 24, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Federal sex registry law not retroactive"

Updating this ILB entry from Dec. 23, Monday's 7th Circuit decision of two sex offender cases with Indiana defendants (see ILB summary here) is the subject of a story today by Andy Grimm of the Gary Post-Tribune:

CHICAGO -- An appeals court ruling will free a Michigan City man serving a five-year sentence for failing to register as a sex offender when he moved from Indiana to South Carolina.

Marcus Dixon turned himself in to authorities in April 2007 after a friend was arrested for violating a federal sex offender registry law. Dixon thought he was facing a 60-day sentence, as state law stipulated at the time, but found out federal law -- and an order from the U.S. Attorney General two months earlier -- had extended the sentence to up to 10 years in federal prison.

The 7th Circuit Court of Appeals on Monday ruled that Dixon couldn't be prosecuted because although the Attorney General's order required sex offenders to register when they moved from one state to another, it didn't give notice to the offenders.

Dixon had presented seven arguments challenging his guilty verdict, including one that questioned the federal government's Constitutional power to impose sex offender laws on the states, but the court considered only the "ex post facto" argument in their ruling, said Bryan Truitt, Dixon's attorney.

"There are other people in the 7th Circuit that have put their appeals on hold for this ruling and maybe 1,000 nationwide in the same situation as Dixon," Truitt said. "When they release all these people, the prison system is going to have to notify them of their duty to register."

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

Enironment - Even more on: DC Circuit strikes down the Clean Air Interstate Rule (CAIR)

James Bruggers of the Louisville Courier Journal reports today on yesterday's action by the DC COA (reported here by the ILB, along with links to the opinions). Today's story begins:

A federal appeals court in Washington, D.C. is having second thoughts about a key air-quality regulation it previously struck down as being "fundamentally flawed."

The court yesterday agreed with the U.S. Environmental Protection Agency to allow its Clean Air Interstate Rule to remain in place while the EPA makes changes.

That means power plants in Kentucky and Indiana that have installed what are called selective catalytic reduction units will need to start running them year-round staring Jan. 1, rather than only during the summer ozone pollution season.

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

Law - Still more on "Feds take Gov. Blagojevich into custody"

In this Dec. 9th entry, the ILB linked to the 78-page criminal complaint (provided via the Chicago Tribune) filed against Illinois Gov. Rod Blagojevich by U.S. Atty. Patrick Fitzgerald.

Today the Tribune has posted the 5-page report of contacts with Governor Blagojevich or his office prepared by attorney Greg Craig for the Pesident-Elect.

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

Tuesday, December 23, 2008

Enironment - Still more on: DC Circuit strikes down the Clean Air Interstate Rule (CAIR)

Updating there earlier ILB entries, this afternoon Cary O’Reilly and Bob Van Voris of Bloomberg News are reporting:

Dec. 23 (Bloomberg) -- U.S. regulations limiting air pollution from power plants in 28 states can remain in effect until new rules are put in place, a federal appeals court said.

A three-judge panel of the court in Washington unanimously struck down the regulations in July, saying the U.S. Environmental Protection Agency went beyond its authority in 2005 when it created the Clean Air Interstate Rule.

The court, acting on a request by the Bush administration, backpedaled today, saying that the rules, which reduce allowable emissions of sulfur dioxide and nitrogen oxide from power plants, can remain in effect until the EPA redrafts them. It rejected a request by states including North Carolina to set a deadline for implementing revised rules.

“We do not intend to grant an indefinite stay of the effectiveness of this court’s decision,” the court said in its order. “Our opinion revealed CAIR’s fundamental flaws, which EPA must still remedy.”

The regulations were intended to reduce air pollution in steps during the next decade. By 2015, the rule would have cut emissions of sulfur dioxide by more than 70 percent and nitrogen oxide by more than 60 percent, compared with 2003 levels, the EPA said.

Utilities have spent billions of dollars installing sulfur- dioxide scrubbers and nitrogen-oxide controls to comply with the EPA regulation. * * *

The regulations also created a cap-and-trade system, allowing companies that exceed their emissions limits to buy credits from those that polluted less.

Here is the 4-page opinion on rehearing. The 60-page July 11th opinion is here.

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

Courts - Indiana decisions cited in Coleman-Frankin Senate dispute

The NY Times column on Bush v. Gore I quoted from in this ILB entry earlier today noted:

Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken.
According to this note I just received from Indianapolis attorney Bill Groth, some Indiana decisions are also involved:
Although this may not be of interest to anyone other than the handful of election lawyers in Indiana, the petition filed by the Coleman campaign with the Minnesota Supreme Court which is being heard this afternoon, and the answer filed by the Franken campaign, each refers to and (in the case of the Coleman campaign) relies heavily upon two Indiana cases, the US Supreme Court’s 2008 decision in Crawford v. Marion County Election Board, and, even more obscurely, a 1981 Indiana Supreme Court decision, Wright v. Gettinger, 428 N.E.2d 1212. The citations to those cases are found in paragraphs 37-41 [pp. 18-20] of the Coleman petition and Franken answer. (This link is included in the note.)

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

Ind. Decisions - Supreme Court holds the robo-call law applies to all autodialer calls, not just consumer transaction calls with commercial messages

In State of Indiana v. American Family Voices, Inc., Jim Gonzalez, et al, a 9-page, 5-0 opinion, Justice Sullivan writes:

In this case, the State Attorney General attempts to enforce the Indiana Autodialer Law against telemarketers who used autodialers to send pre-recorded messages to Indiana residents. The trial court dismissed the complaint pursuant to Ind. Trial Rule 12(B)(6) because there was no allegation that the telemarketers were making consumer transaction calls with commercial messages. We hold that a complaint filed under this statute is not required to allege that consumer transaction calls are at issue because the law applies to all autodialer calls, not just consumer transaction calls with commercial messages.

The State seeks an injunction prohibiting the defendants American Family Voices, Inc. (“AFV”), Jim Gonzalez, and John Does 2-10 from making telephone calls using an automated dialing-announcing device, civil penalties for each violation, reasonable attorneys fees, and costs against the defendants. The trial court dismissed the lawsuit under the authority of T.R. 12(B)(6) for “failure to state a claim upon which relief can be granted.” The State appealed and petitioned that this Court grant immediate transfer and expedited consideration pursuant to Ind. Appellate Rules 4(A)(2), 21(B), and 56(A). We granted the State’s request transfer under App. R. 56(A). * * *

As can be easily inferred from the presence of the Democratic and Republican State Central Committees as amici in this case, this litigation raises questions as to the extent to which the Autodialer Law limits and may constitutionally limit the use of autodialers to convey political messages. However, all parties agree that no such questions are before this Court at this stage of the litigation and we express no opinion with respect thereto. * * *

We conclude that no language in the statute exempts non-consumer and non-commercial calls from its reach and we decline to read such an exemption into the Law for at least two additional reasons. First, the Legislature provides an exemption for some non-consumer and non- commercial calls in the statute (e.g., messages from school districts to inform parents), from which we infer it intended no exemption for all other non-commercial calls. This reflects the principle of statutory construction known as expressio unius est exclusio alterius – in this case, the Legislature’s exemption of certain specified calls excludes all other calls from that exemption. Second, the Legislature has shown its ability to craft such an exemption in other statutes, see, e.g., I.C. § 24-5-14-8 (placing hour limitations specifically on “commercial telephone solictation”); I.C. § 24-4.7-1-1(categorically exempting certain types of calls from Indiana’s “Do- Not-Call-Law”); and Congress has provided models as well, see, e.g., Telephone Consumer Protection Act, 47 U.S.C.A. § 227(b)(2)(B)(i) (West 2001 & Supp. 2008) (authorizing the FCC to exempt calls not made for commercial purposes from restrictions on making calls using autodialers). Despite these models, the Legislature has not done so here. * * *

For the reasons discussed above, we hold that the State is not required to allege that the defendants made consumer transaction calls with commercial messages using an autodialer in order to defeat a motion to dismiss under T.R. 12(B)(6). The State presented a claim for which relief can be granted for the violations under I.C. § 24-5-14-5(b) alleged in its complaint.

Conclusion. Having previously granted transfer pursuant to App. R. 56(A), the trial court’s dismissal of the State’s complaint is reversed. We remand this case to the trial court for further proceedings.

For background, see these earlier ILB entries.

Posted by Marcia Oddi on Tuesday, December 23, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In American United Life v. The Restaurant Hospitality, a 19-page, 2-1 opinion, CJ Baker concludes:

In light of our discussion above, we conclude that the designated evidence established that the negotiations between the parties left nothing open for future determination and that the appellees are unable to point to any material term of the stop loss policies on which the parties did not agree. Indeed, the appellants issued the stop loss policies to the appellees according to the precise terms that were requested, including the subject matter, the risk insured against, the amount the duration of the risk, and the premium. Hence, the appellees were obligated to pay the premiums, and the appellants were bound to pay the amount insured in the event of a loss. As a result, we conclude that the trial court erred in granting the appellees' motion for summary judgment and, because the material facts were not in dispute, the trial court should have granted the appellants' motion for summary judgment.
The trial court's judgment is reversed and remanded with instructions to grant the appellants' motion for summary judgment and to enter final judgment on their behalf.

MATHIAS, J., concurs.
BROWN, J., dissents with opinion. [that begins] I respectfully dissent from the majority's reversal of the grant of summary judgment to the associations. I conclude that a meeting of minds did not occur and that the trial court properly granted the associations' motion for summary judgment.

In State of Indiana v. William A. Holley , an 8-page opinion, Judge Kirsch writes:
William A. Holley was charged with possession of marijuana1 as a Class A misdemeanor. Holley filed a motion to suppress the evidence obtained during a search of his vehicle. The trial court granted the motion, which effectively precluded further prosecution. Pursuant to Indiana Code section 35-38-4-2(5), the State appeals raising the following issue: whether the trial court erred as a matter of law in granting Holley's motion to suppress evidence seized during a warrantless search conducted after the police officer smelled raw marijuana in the vehicle and on Holley's person. We affirm. * * *

On the basis of this evidence, we cannot say that the State sustained its burden of proof justifying the warrantless search of Holley's vehicle. The evidence of Officer Boles's qualifications to identify the presence of raw marijuana by odor alone was not without conflict and is insufficient to overturn the negative judgment of the trial court. While the testimony of a police officer shown to be qualified by training or experience to detect the odor of raw marijuana may be sufficient in a particular case to demonstrate the existence of probable cause as a matter of law, the State failed to make such a showing here.

Valentino Griffith v. State of Indiana - "For the foregoing reasons, we affirm Griffith’s convictions for criminal recklessness as a class D felony, intimidation as a class D felony, and battery as a class A misdemeanor. Affirmed. "

In In re: The Paternity of N.L.P. , a 9-page opinion, Judge Kirsch writes:

Jill S. Swope appeals the trial court?s award of her fees for acting as the Guardian Ad Litem (“GAL”) in the paternity case of N.L.P. between Robert S. Pendowski (“Father”) and Lisa A. Sizemore, n/k/a Lisa A. Brandenberg (“Mother”). Swope raises the following restated issue: whether the trial court erred when it failed to award her total fees and expenses incurred while serving as GAL. We vacate and remand with instructions. * * *

We conclude in this case that the GAL fees were not properly determined and were not reasonable. The fees submitted to the trial court by Swope were not “reasonably commensurate to the time and work involved.” Ford, 651 N.E.2d at 1195 (quoting In re the Estate of Meguschar, 511 N.E.2d at 311). Swope, acting as both the GAL and an attorney, should have billed her duties separately and differentiated between when she was performing duties as the GAL and when she was performing legal work as an attorney. The trial court found the fees to be unreasonable, but instead of engaging in an analysis of what a reasonable fee would have been, it arbitrarily chose $20,000.00 to be a reasonable amount of fees for this paternity action. We believe that a more complete careful analysis of the duties performed is required, and we vacate the portion of the trial court?s order regarding the GAL fees and remand for a careful consideration of the fees in accordance with this opinion.

In Darrick T. McClain v. State of Indiana , a 5-page opinion, Judge Najam writes:
Darrick McClain appeals from his conviction for Failure to Register as a Sex Offender, as a Class D felony, following a jury trial. He presents a single issue for our review, namely, whether the trial court abused its discretion when it permitted evidence regarding his prior sexual battery conviction at trial. We reverse and remand for a new trial. * * *

Here, the question presented is whether, in light of McClain’s offer to stipulate to his status as a sex offender, the probative value of the registration form was outweighed by the danger of unfair prejudice. We hold that it was and that the evidence should have been excluded. * * *

Here, we also find that the reasoning in Old Chief applies and hold that McClain’s offer to stipulate that he is a sex offender precludes admission of the registration form at trial. The prejudicial impact of the details of his sexual battery conviction is clear, and that evidence has no probative value in relation to the instant offense. The trial court abused its discretion when it admitted the registration form into evidence over McClain’s objection and despite his offer to stipulate. * * *

We cannot say, beyond a reasonable doubt, that the probable impact of the prejudicial evidence upon the fact finder was sufficiently minor so as not to affect McClain’s substantial rights. See id. We reverse and remand for a new trial.

NFP civil opinions today (3):

Cheri Miller v. Thomas Paul Miller (NFP)

In Re: The Termination of the Parent-Child Relationships of B.L. and C.M. (NFP)

Niles D. Schwartz, M.D. v. Parker Shelton (NFP)

NFP criminal opinions today (6):

Steven J. Mallory, Jr. v. State of Indiana (NFP)

Nathaniel D. Miller v. State of Indiana (NFP)

Larry D. Bobbitt, Jr. v. State of Indiana (NFP)

Larry L. Martin v. State of Indiana (NFP)

Eric Cobb v. State of Indiana (NFP)

Jara Clairday v. State of Indiana (NFP)

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

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

In Hansen, Sondra v. Bd Trustees Hamilton SE School Corp (SD Ind., Judge McKinney), a 33-page opinion, Judge Kanne writes:

Dmitri Alano, a teacher and assistant band director at Hamilton Southeastern High School (“HSE”), engaged in an improper sexual relationship with a student. The student’s parents, the Hansens, filed suit individually and on behalf of their daughter against both Alano and the Hamilton Southeastern School Corporation (“HSSC”). They brought claims against both defendants under Indiana law, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. The district court granted summary judgment in favor of HSSC on all claims. The Hansens appeal, arguing that the district court erred by (1) granting summary judgment against them on their Title IX claim, (2) exercising supplemental jurisdiction over their state claims against HSSC, and (3) granting summary judgment against them on those state claims. We consider whether the district court’s decisions were proper, and we conclude that they were. * * *

III. CONCLUSION. The Hansens failed to demonstrate a genuine issue as to whether HSSC had actual knowledge of Alano’s misconduct for their Title IX claim. After dismissing the Title IX claim, the district court properly exercised supplemental jurisdiction over the Hansens’ state claims. The district court did not err by granting summary judgment against the Hansens on each of those claims. The Hansens did not establish a genuine issue as to whether HSSC knew or should have known of Alano’s misconduct, nor whether the school district acted negligently in light of any knowledge it may have had. Further, Alano’s misconduct was outside the scope of his employment as a matter of law. Therefore, we AFFIRM the district court’s decision granting summary judgment in favor of HSSC on all claims against it.

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

Courts - Meaning of "dictum"?

No surprises here, IMHO.

Lawrence Solum of the Legal Theory Blog notes that:

Josh Blackman (George Mason University - School of Law) has posted Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum on SSRN.
What is the author's conclusion? From the abstract:
Based on the arbitrary nature with which courts define dictum, and the varying weight courts assign to dictum, even from superior courts, I conclude that the holding/dictum distinction is a standardless standard. Unlike generally accepted standards of review, labeling an opinion as holding or dictum is an entirely subjective process, which I argue enables judges to easily evade precedent without needing to justify the departure; or in the alternative create precedent where none existed before.

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

Courts - Despite SCOTUS, Bush v. Gore being used as precedent

Adam Liptak's column today on the NY Times is headed "Bush v. Gore Set to Outlast Its Beneficiary ." It begins:

The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

That sentence, translated from high legal jargon into English, was often taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.

But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. “You’re starting to see courts invoke it,” said Samuel Issacharoff, a law professor at New York University, “and you’re starting to see briefs cite it.”

Divorced from its earlier context, the growing point of the case is to impose order on often chaotic election processes in the states.

“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

More from the column:
Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken. The candidates’ briefs cited the case some 20 times, arguing in earnest detail about how the Supreme Court’s understanding of the role of equal protection in election administration applied in Minnesota.

“Bush v. Gore has a future,” said Edward B. Foley, an election-law specialist at Ohio State. “We’re now starting to see it. There is a sense, eight years later, that some of the initial reaction was an overreaction.”

In the early days, of course, the case was mocked as illegitimate in both its reasoning and its result. “That was so completely the prevailing wisdom” in the law schools, Professor Issacharoff said, “that there were even challenges as to whether Bush v. Gore could be taught as a serious case.”

Many judges flatly refused to consider the decision as precedent for anything, relying on the Supreme Court’s admonition and a more general unease. No Supreme Court opinion, including concurrences and dissents, has ever cited Bush v. Gore.

“It hasn’t been cited even in cases where it should have been cited,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles and is the author of “The Untimely Death of Bush v. Gore,” published last year in The Stanford Law Review. “The case is radioactive. Anyone who touches it knows he’s playing with something very dangerous.” * * *

Until the recent Sixth Circuit decision, the most important invocation of Bush v. Gore by a federal appeals court probably came in a 2006 case decided by a different panel of the same court. The decision was later vacated as moot by the full court, but the testy interaction of the panel’s judges remains instructive.

The dissenting judge on the three-judge panel criticized his colleagues for relying on “the Supreme Court’s murky decision in Bush v. Gore” in a case about the use of punch-card ballots in Ohio. The judge, Ronald Lee Gilman, pointed to the one-ride-only language and what he called the Supreme Court majority’s ideological inconsistency and lack of intellectual seriousness.

The judges in the majority were having none of that. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” they wrote, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it — ‘Supreme Court’ — carries more weight with us.”

“Whatever else Bush v. Gore may be,” Judge Boyce F. Martin Jr. wrote for the majority, “it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”

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

Ind. Decisions - "Federal sex registry law not retroactive"

Yesterday's 7th Circuit decision of two sex offender cases with Indiana defendants (see ILB summary here) is the subject of a brief story today by Bob Kasarda of the NWI Times:

A federal appeals court in Chicago ruled Monday that an enhanced federal sex offender registry law cannot be applied to those who violated the law before it took effect.

The ruling was good news for Valparaiso-based attorney Bryan Truitt and his client, Marcus Dixon, who will be released from custody four years earlier than expected.

The ruling also could have a ripple effect on as many as 1,000 similar cases across the country, Truitt said.

"This thing could have a nationwide impact," he said.

Dixon was found guilty a year ago of failing to register as a sex offender when he cut an electronic monitoring bracelet off his ankle and moved from South Carolina to Michigan City during May 2006. He was sentenced to 55 months in prison under the enhanced penalties of the Sex Offender Registration and Notification Act, which took effect a few months after his offense.

The act requires sex offenders to keep their registration current no matter where they live and carries a potential sentence of up to 10 years, as compared to 90 days under South Carolina law and up to one year under the former federal law.

The 7th Circuit Court of Appeals did not go so far as to uphold Truitt's challenge to the constitutionality of the federal registry law. Truitt had argued in part that the law illegally treads on rights reserved for the states.

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

Monday, December 22, 2008

About this blog - ILB monthly reader

I'm working on something. I thought it might be nice to be able to look at a month's worth of ILB entries online, preceded by a Table of Contents. Or to be able to print out a month's worth of ILB entries, preceded by a TOC, and place it in a binder.

So far I've produced these samples:

  • The November 2008 entries, to view online, preceded by a handy Table of Contents that will take you directly to the entry. To go back, use the browser's back key.

  • The November 2008 entries, in PDF format to print out. November is 143 pages long. The TOC items are numbered and keyed to numbers added to each individual blog entry.
If you think either of these would be useful, let me know.

Posted by Marcia Oddi on Monday, December 22, 2008
Posted to About the Indiana Law Blog

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

Here is the transfer list for the week ending Dec. 19, 2008. It is four pages long.

Three transfers were granted last week: one granted with opinion; one granted transfer and remanded to the COA with no opinion; and one, the case of Rudrappa and Jayashree Gunashekar v. Kay Grose, d/b/a America's Affordable Housing J & K Mfg. (NFP) - a 2-1 opinion, was granted transfer Dec. 18th.

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, December 22, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court decides one today

In Abjul K. Johnson v. State of Indiana, a 4-page, 5-0 opinion, Justice Sullivan writes:

In its unpublished opinion affirming the trial court, the Court of Appeals relied primarily on our opinion in Moshenek v. State, 868 N.E.2d 419 (Ind. 2007). Like Johnson, Moshenek sought permission to file a belated direct appeal under P-C.R. 2 after having had a petition for post-conviction relief under P-C.R. 1 pending for an extended period of time. We held that Moshenek had not demonstrated the requisite diligence to warrant a belated appeal. Id. at 424. But Johnson’s situation differs from Moshenek’s in a crucial and dispositive way. Whereas Johnson’s P-C.R. 1 proceeding explicitly challenged his sentence, Moshenek’s P-C.R. 1 petition did not. In fact, Moshenek waited more than 16 years — from sentencing in 1989 until the filing of his P-C.R. 2 petition in 2005 — without challenging his sentence in any way. Johnson, by contrast, filed his P-C.R. 1 petition less than three years after sentencing. * * *

But we think it would be unfair to use Moshenek to deny Johnson permission to file a belated appeal here. Johnson’s P-C.R. 1 petition explicitly challenging his sentence was filed within a reasonable period of time under pre-Collins practice. And once the procedures for challenging a sentence imposed following an open plea were made clear in Kling, Johnson acted almost immediately to follow its dictates. * * *

We grant transfer and remand this case to the trial court with instructions to enter a final judgment granting Johnson’s petition for permission to file a belated appeal. Johnson’s petition did not include a proposed notice of appeal as an exhibit. Accordingly, the time for filing a notice of appeal is governed by Appellate Rule 9(A).

Posted by Marcia Oddi on Monday, December 22, 2008
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Josa Williams v. State of Indiana , a 5-page opinion, Judge Crone writes:

Josa Williams appeals his conviction for class A misdemeanor possession of marijuana. The sole issue on appeal is whether the trial court abused its discretion in admitting evidence of marijuana seized from Williams's person during his arrest. We affirm. * * *

The State contends, and Williams concedes, that a police officer may search a defendant pursuant to a lawful arrest. * * * Here, Officer Smith learned of an active warrant for Williams's arrest when he accessed his police computer during a routine traffic stop. He subsequently arrested Williams, searched his person, and found marijuana in his pocket.

Williams argues that the State failed to prove that the arrest was lawful and that, as such, evidence of the marijuana produced in the search should not have been admitted. See Best v. State, 817 N.E.2d 685, 689 (Ind. Ct. App. 2004) (holding search of defendant?s person impermissible where arrest warrant is invalid at time of search). Here, Williams never challenged the validity of the warrant, and there was no evidence that the warrant was invalid. However, he argues that the State's failure to place the arrest warrant in evidence amounts to reversible error.

Indiana courts have not addressed the question of whether the State must produce an active arrest warrant when the defendant has not challenged the warrant?s validity. * * *

In Carter v. State, 788 A.2d 646 (Md. 2002), the Court of Appeals of Maryland addressed the question of whether the State must produce an arrest warrant at a suppression hearing where a search of the defendant's lunchbox incident to arrest produced marijuana cigarettes:

We can find no authority in Maryland or elsewhere that the lawfulness of an arrest can be vitiated by the State?s failure to produce an arrest warrant at a suppression hearing when the defendant already has a copy of it and has not specifically challenged the legality of the warrant.
We find Carter persuasive, given that Williams did not challenge the warrant's validity, and that the record is otherwise devoid of any indication of invalidity. To the extent Williams argues that he had no access to the warrant, we note that the warrant was referenced in detail by cause number in the probable cause affidavit filed with the charging information. As such, Williams easily could have filed a motion to compel discovery of the warrant. We also note that the warrant is a public record easily accessible to Williams, and there is no indication of any motion to compel discovery of it.

The trial court acted within its discretion in admitting evidence of the marijuana found on Williams's person. Accordingly, we affirm.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Brittani N. Stouts-Coats v. State of Indiana (NFP)

Ronald Price v. State of Indiana (NFP)

Daymon Holbert v. State of Indiana (NFP)

Amanual K. Girma v. State of Indiana (NFP)

Bobby Wayne Tabor v. State of Indiana (NFP)

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

Ind. Decisions - One today from Tax Court

In Allied Collection Sevice, Inc. v. Indiana Dept. of State Revenue, a 12-page opinion, Judge Fisher writes:

Allied Collection Service, Inc. (Allied) appeals the Indiana Department of State Revenue?s (Department) imposition of Indiana use tax on collection letters Allied purchased from an out-of-state vendor in 2003 and 2004 (the years at issue). The matter is currently before the Court on the parties? cross-motions for summary judgment. The issue for the Court to decide is whether Allied acquired those letters in a taxable “retail unitary transaction.” * * *

If there is any doubt when ruling on a motion (or motions) for summary judgment as to what conclusion the Court could reach, the Court will conclude that summary judgment is improper, given that it is neither a substitute for trial nor a means for resolving factual disputes or conflicting inferences following from undisputed facts. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind. 2001) (citations omitted). In this case, neither party has put forth sufficient evidence from which the Court can determine whether the subject transactions are divisible. Consequently, neither party is entitled to summary judgment. The Court will, under separate order, schedule a case management conference with the parties to discuss pre-trial matters and scheduling.

Posted by Marcia Oddi on Monday, December 22, 2008
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases today, in one opinion

In U.S. v. Macrus Dixon (ND Ind., CJ Miller), and U.S. v. Thomas Carr (ND Ind., Judge Springmann), a 13-page opinion, Judge Posner writes:

We have consolidated for decision the appeals in two cases that raise overlapping issues, primarily under the ex post facto clause of Article I, section 9, of the Constitution.

Both defendants were convicted—Dixon after a bench trial on stipulated facts, Carr after conditionally pleading guilty—of violating the Sex Offender Registration and Notification Act (part of the Adam Walsh Child Protection and Safety Act of 2006), 18 U.S.C. § 2250. The Act, which went into effect on July 27, 2006, imposes criminal penalties on anyone who, being required by the Act to register, being a convicted sex offender under either federal or state law, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he can prove that “uncontrollable circumstances” prevented him from doing so. 18 U.S.C. §§ 2250(a), (b)(1). Congress instructed the Attorney General to “specify the applicability of the requirements of [the Act] to sex offend- ers convicted before [its enactment] or its implementation in a particular jurisdiction” and to “prescribe rules for the registration of any such sex offenders . . . who are unable to comply with” the requirement, also imposed by the Act, of registering before they are released from prison or, if they do not receive a prison sentence, within three days after being sentenced, and furthermore of re- registering within three days after a change of name, residence, employer, or student status. 42 U.S.C. §§ 16913(b), (c), (d). * * *

The Attorney General issued an interim regulation on February 28, 2007, that makes the Sex Offender Registration and Notification Act applicable to persons, such as Dixon and Carr, who were convicted of sex offenses before the Act was passed. 72 Fed. Reg. 8896, 28 C.F.R. § 72.3. They were convicted for failing to register in Indiana—to which they had come before the Act was passed—after the issuance of the regulation.

In Dixon's case, the Court writes:
Whatever the minimum grace period required to be given a person who faces criminal punishment for failing to register as a convicted sex offender is, it must be greater than zero.
In Carr's case, the Court writes:
Carr’s case, to which we now turn, is simpler than Dixon’s. Although his interstate travel like Dixon’s preceded the application of the Sex Offender Registration and Notification Act to him, and although he assumes (as Dixon argues) that the Act requires that the travel postdate that application, the only ground of his appeal is that his conviction violated the ex post facto clause. But he does not and cannot complain that he was not given enough time to register in Indiana in order to avoid violating the Act, because he admits that he had still failed to do so “on or about July, 2007,” almost five months after the Attorney General’s regulation was issued that made the statute applicable to him. Five months is a sufficient grace period. Remember that on our interpretation of the statute as filled out by the regulation, the duty to register does not come into force on the day the Act becomes applicable to a person, or on the next day or next week, but within a reasonable time; and Carr had a reasonable time within which he could have registered. Had he done so, he could not have been convicted of violating the Act. Since his violation was not complete when the Act became applicable to him, his rights under the ex post facto clause were not violated.

The judgment in Dixon’s case is reversed with directions to acquit; the judgment in Carr’s case is affirmed.

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

Ind. Law - "Don't drive left of center"

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on "how it is illegal to drive left of center to park or do anything else." A few quotes form the story:

There is one law that some people violate on purpose and others violate accidentally. It's the law prohibiting people from driving left of center.

Police say some people intentionally cross the center line of a roadway to make a delivery, snatch up a good parking spot on the other side of the road or to remove their mail from their mailbox.

There's another group that accidentally crosses the center line because they're distracted by talking on their cell phone, applying makeup, reading, eating or adjusting their stereo.

Whether intentional or not, violators can be ticketed. * * *

[Valparaiso police Sgt. Michael] Grennes said people who manage to pull into a parking space the wrong way without being spotted by police could find a parking ticket on their car when they return to it. People must remember that their car, when parked along a curb, must be facing the same direction that traffic is heading. * * *

Grennes said he has ticketed drivers who use the passing lane as a driving lane and who cause cars to back up behind them. It is not a defense that the violator is traveling the speed limit or that he is trying to slow other motorists for their own safety. Grennes notes that drivers who cause backups in the passing lane often anger motorists who want to pass, leading to road rage incidents.

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

Ind. Courts - Delaware County Judge Barnet prepares for life after the bench

John Carlson reports in the Muncie Star-Press in a long story that begins:

If your image of a typical jurist springs from words like pompous and pontificating, chances are you haven't hung around Bob Barnet Jr. much.

"I always wanted to be a lawyer," the Circuit Court 3 judge explained from behind his desk in the Delaware County Justice Center recently, "because my curve ball wasn't good enough to get me in the major leagues, and my putt wasn't good enough to get me on tour."

Just kidding? Maybe, but maybe not.

After all, the judge grew up the son of Bob Barnet Sr., the late, legendary Muncie Star sports editor, a wordsmith of the highest order and a man whose reputation gained young Bob entree to Kentucky Derbies, Indy 500s, World Series and even a heavyweight championship bout.

"I was always very proud that he was my dad," Barnet recalled, smiling. "He always supported me being a lawyer."

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

Courts - Still more on "McDonald's sanctioned in strip-search case"

Updating this Nov. 15th ILB entry on a Kentucky case, ramifications from the McDonald's case appear to be impacting a bar race.

A lengthy story today by Andrew Wolfson of the Louisville Courier Journal is headed "Bar association candidate accused of ethics violation." The report begins:

Just as the Kentucky Bar Association's president was stripped of some of her powers for inappropriate conduct last week, a candidate for another bar office was being accused of ethics violations.

Bar elections are normally polite affairs. But in what bar leaders say is an extraordinary and unprecedented attack, a Louisville attorney has questioned the honesty and integrity of a candidate for vice president of the 15,000-member organization.

Historically, the vice president eventually becomes president of the bar.

The accusations against attorney Margaret "Maggie" Keane come not from her opponent in the bar race, Scott Madden of Manchester, but from her adversary in the fiercely contested McDonald's strip search lawsuit, Ann Oldfather.

In a letter sent to about 600 lawyers last week, Oldfather alleges that Keane knowingly misled the court in that case, when she said all documents concerning prior strip searches at McDonald's stores had been turned over to the plaintiff's legal team.

In fact, Oldfather says in her Dec. 15 letter, it was later discovered that about a week before she insisted there were no such materials, Keane had been sent "the exact documents she denied having."

"Had we simply accepted Ms. Keane's representations as an officer of the court ... critically important documents would never have been produced ... and the outcome of the case could well have been different," Oldfather says in the letter.

Posted by Marcia Oddi on Monday, December 22, 2008
Posted to Courts in general

Courts - "Abuse Victims Seek Court Date With Vatican"

Here is an interesting legal story I woke up to this morning, reported by Barbara Bradley Hagerty of NPR. Here are a few quotes:

Until recently, no federal court has allowed a case to proceed against the Vatican — and few really believed the Holy See would ever be open to lawyers or its treasury subject to money damages. It is considered a foreign state with sovereign immunity.

But there are exceptions to the immunity, including one called the "tortious act" exception. If Turner can show that U.S. bishops are officials of the Vatican, and that they harmed children by failing to report sex abuse, then he has a chance of getting to trial.

Recently, a federal court in Oregon and the Sixth Circuit Court of Appeals in Ohio said they're open to this idea.

"Never before has a court said that victims of childhood sex abuse can come into U.S. courts and hold a foreign nation such as the Vatican accountable," says Turner's attorney, William McMurry, who won the preliminary victory in the Sixth Circuit.

It's a small step with huge implications. McMurry is readying demands for documents from the Vatican's secret archives, as well as a witness list that includes Pope Benedict XVI, who oversaw all investigations in his previous position as Cardinal Josef Ratzinger. * * *

As Exhibit A, McMurry points to a document, called "Crimen Sollicitationis," signed by Pope John XXIII. The document tells bishops how to handle, among other things, child sex-abuse cases. The document was written in 1962 but only surfaced five years ago.

When former Benedictine priest Patrick Wall saw it, he thought, "Oh my, I can't believe they just handed over the map!"

Wall used to handle sex-abuse cases for the church. He left the priesthood and is now an investigator for plaintiffs.

"This is how I was instructed as a priest to handle the different accusations," he recalls. "I had never seen the document but, lo and behold, that's exactly the process I was taught as a 27-year-old priest of how to do this."

The document states that abuse cases must be "pursued in a most secretive way," and that all involved be "restrained by a perpetual silence." That includes the bishop, the priest prosecutor and the judge, the accuser and the accused, even the notary.

"Every single person involved in the case is absolutely obligated to the grave to remain silent," Wall says. "Otherwise they will be excommunicated and damned to hell."

But Nicholas Cafardi, a law professor at Duquesne Law School, says this document applies only to internal church trials, and has nothing to do with reporting abuse to prosecutors.

Posted by Marcia Oddi on Monday, December 22, 2008
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Monday, Dec. 22th:

9:00 AM - State of Indiana v. Steve Hernandez - Hernandez was convicted on two charges of murder and sentenced on December 1, 1975 to two life terms in prison. The Supreme Court affirmed. See Gutierrez v. State, 388 N.E.2d 520 (Ind. 1979). In 2008, Hernandez successfully secured post-conviction relief from the Lake Superior Court upon a finding that Indiana Code § 11-13-3-2(b)(3) is unconstitutional under the ex post facto clause as applied to Hernandez. Citing Appellate Rule 4(a)(1)(B), the State appealed directly to the Supreme Court. Attorney for State: David A. Arthur, Indianapolis, IN. Attorney for Hernandez: Mark Small, Indianapolis, IN.

9:45 AM - Mahmoud M. Basileh v. Arwa G. Alghusain - After the parties dissolved their marriage in Indiana in 2002, Alghusain relocated to Monterey County, California, with the parties' two children. Basileh, the children's father, left Indiana for the Middle East in 2004 but asserts Indiana residency. In 2007, the trial court in Indiana issued an order ceding jurisdiction over child support and enforcement matters to Monterey County, California. The Court of Appeals affirmed. Basileh v. Alghusain, 890 N.E.2d 779 (Ind. Ct. App. 7/28/2008), 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 Basileh: David W. Stone, IV, Anderson, IN. Attorneys for Alghusain: Peter S. French and Joseph P. Rompala.

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:

None scheduled.

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

Sunday, December 21, 2008

Ind. Law - "Barnes & Thornburg's involvement in city business troubles some"

That is the subhead to this lengthy story today on the front-page of the Indianapolis Star, reported by Brendan O'Shaughnessy. Some quotes from the story:

A review by The Indianapolis Star shows just how tightly the law firm is woven into the fabric of the Ballard administration. Day to day, those with past or current connections to Barnes & Thornburg help decide how to spend hundreds of millions of tax dollars, set crime-fighting policy, decide whether to keep parks open and determine how best to defend the city against lawsuits and more. Consider:

Either Grand or Loftus, who headed Ballard's transition team, regularly sit in on Ballard's weekly meetings with key staff.

Ballard's public safety director, Scott Newman, is a former Barnes & Thornburg attorney.

Chris Cotterill, who heads the corporation counsel office, also worked at Barnes & Thornburg.

Four other key members of Ballard's administration have to one degree or another a connection to Barnes & Thornburg or to Grand, one of the top GOP fundraisers and lobbyists in the state.

Ballard appointed Grand chairman of the Capital Improvement Board, considered the top prize among city boards because it controls millions in contracts as well as fancy suites for Colts and Pacers games.

Barnes & Thornburg was paid $96,000 this year to lobby at the federal level for the city.

Loftus was paid $60,000 this year to be the city's lobbyist at the Statehouse and an additional $55,000 to act as the administration's special counsel.

Everyone from the mayor on down says they have been careful to avoid any such conflicts.

" 'Does Barnes & Thornburg represent someone?' is not the right question," Grand said. "The question for any person in the administration is, 'Has anybody at the firm contacted you on behalf of issue X?' That would be wrong."

More from the story:
Ballard stressed that the city has cut overall legal fees by more than half compared with the previous administration.

And he said the firm helped the city save millions of dollars by helping to persuade the state to take over the city's police pension and child welfare liabilities as part of property tax reforms passed by the legislature earlier this year.

"I think they (Grand and Loftus) are acting in the best interest of the city," Ballard said. "If they were acting in their own interest, the numbers would show something else."

Besides, he added, "I get a lot of advice from a lot of people."

Inexplicably, the online story does not include the graphics that were in the print version

One of the charts, which I considered to be the most informative, is labeled "An abrupt shift in where money goes" and has this intro:

A comparison of outside legal service costs between 2007 and most of 2008 shows Mayor Greg Ballard has cut such expenses by more than half. It also shows a major shift in where the money is going -- mostly a shift from Baker & Daniels, which had close ties to former Mayor Bart Peterson, to Barnes & Thornburg, where Robert Grand and Joe Loftus work.
The bottom line, from the chart:
In 2007 BT earned $145,571 from the City, and B&D earned $2.49 million.

In 2008 BT earned $670,861 from the City, and B&D earned $0.

Total to all lawfirms in 2007, $7.55 million. In 2008, $3.37 million.

For another view, see this entry from the blog of Paul Ogden, who is also quoted in today's story.

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

Ind. Decisions - Yet more on: "Jury rejects pollution suit against New Albany power plant"

This ILB entry from May 24th quoted an Indianapolis Star story that reported a federal jury had decided:

A coal-burning plant in West Terre Haute [the Wabash River Power Station in Vigo County] violated the U.S. Clean Air Act when it substantially upgraded several areas more than a decade ago without installing pollution controls. But changes at four other plants were cleared.
Sat. Dec. 20 the Indianapolis Star ran on p. B2 a story from Bloomberg News that the ILB has since been unable to find online, either on the Star site, or on the Bloomberg site, or anywhere else online. My conclusion, which is merely speculative, is that the story was pulled because it contained information from a sealed order, which would be #1507 on this list.

Document #1506, however, which is not sealed, is a very interesting order to show cause. Access it here.

Posted by Marcia Oddi on Sunday, December 21, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Madison Superior Court 2 Judge Jack Brinkman retiring

Shawn McGrath of the Anderson Herald Bulletin has a story today on some of retiring Judge M
Brinkman's cases, although, as the judge notes:

Brinkman, who retires Jan. 1, said the most gratifying cases had been those involving helping juveniles, a large chunk of the cases he presided over in his courtroom. But because of the sensitive nature of those cases — and the ages of the parties — the outcomes are usually confidential.

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

Ind. Courts - More on "Vanderburgh Little Hatch Act cases set for Jan. 8"

Updating this ILB entry from yesterday, today Thomas B. Langhorne of the Evansville Courier & Press has a lengthy report that includes these quotes:

What Vanderburgh County Republicans knew and when they knew it will be key issues in the GOP's lawsuit seeking to have Democrats Steve Melcher and Ed Bassemier declared ineligible to seek office.

Citing a 1958 Indiana Supreme Court case in which a losing candidate unsuccessfully challenged the winner's eligibility, Bassemier's lawyers argued in court papers filed Friday that the GOP's lawsuit is moot because the party didn't act before the Nov. 4 election.

That case, Oviatt vs. Behme, also was cited in the Nov. 13 Indiana Court of Appeals decision that inspired the local GOP's lawsuits.

Bassemier's team cites "Indiana's well-established common law rule that a successful post-election challenge cannot be maintained on the grounds of the winning candidate's ineligibility unless the voters knew of that ineligibility and wasted their votes accordingly." * * *

In separate suits that will be heard by a Vanderburgh County judge on Jan. 8, Republicans argue Bassemier, who won an at large County Council seat, and Melcher were prohibited from seeking office under the Little Hatch Act. The federal law limits the political activities of people whose jobs are funded at least in part by federal money.

The story also provides a link to 2 pages filed by "Contestee" Ed Bassemier, listing his affirmative defenses.

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

Saturday, December 20, 2008

Ind. Decisions - "Just Call This Deal Hoosier Baroque"

Gretchen Morgenson Sunday financial column in the NY Times this week features the Hoosier Egergy - John Hancock dispute.

The ILB had an entry on Nov. 25th headed "Judge gives reprieve to Hoosier Energy," with a follow-up on Dec. 12.

Some quotes from the Morgenson story:

COLLATERAL damage from the credit crisis continues to crop up in the most unlikely places. Consider southern Indiana, where the Hoosier Energy Rural Electric Cooperative, serving 800,000 farm, small-business and residential customers, is under threat.

Unlike many other enterprises today, Hoosier is not in financial distress. It is, in fact, thriving.

What imperils the cooperative is the kind of financial alchemy that has magnified our money mess: an atrociously convoluted deal that Hoosier struck with the John Hancock Life Insurance Company in 2002.

Because part of that deal is now in jeopardy, John Hancock is trying to force a termination payment of $120 million that could push Hoosier into bankruptcy protection.

Problems with the Hoosier-John Hancock transaction are the subject of a lawsuit in federal court in Indianapolis. David F. Hamilton, chief judge in the Southern District of Indiana, recently granted Hoosier’s request for a preliminary injunction preventing any termination payment from being made until the dispute between the parties could be resolved.

BTW, the story mentions the Nov. 25 order, but not the Dec. 13th opinion, where the court found that infsofar as injunction security was concerned, "John Hancock is adequately protected by a total of four different forms of security, plus a further restriction on Hoosier Energy’s ability to take on additional debt while the preliminary injunction is in effect."

Posted by Marcia Oddi on Saturday, December 20, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Drug forfeiture cases go to trial next week"

Rick Yencer of the Muncie Star-Press reports today in a story that begins:

The trial to determine whether Delaware County Prosecutor Mark McKinney was entitled to thousands of dollars in attorney fees for his involvement in civil drug forfeiture cases will move forward next week despite last-minute pleas on the prosecutor's behalf.

Delaware Circuit Court 2 Judge Richard Dailey denied efforts Friday by McKinney, Deputy Prosecutor Eric Hoffman and the state to get Dailey to appoint a new judge.

McKinney's Indianapolis attorney, Kevin McGoff, sought to get Dailey to appoint a new judge in the case, alleging he had conflict as a potential witness in criminal proceedings against McKinney.

Posted by Marcia Oddi on Saturday, December 20, 2008
Posted to Indiana Courts

Ind. Courts - "Vanderburgh Little Hatch Act cases set for Jan. 8"

Thomas B. Langhorne reports today in a brief story in the Evansville Courier & Press that begins:

A judge today set Jan. 8 as the hearing date for two Vanderburgh County Republican Party lawsuits seeking to reverse the election of Democratic County Commissioner-elect Steve Melcher and Democrat County Councilman-elect Ed Bassemier.

Circuit Court Judge Carl Heldt's action formally ends any doubt about whether the GOP will be successful in preventing Melcher and Bassemier from being sworn in on Jan. 1.

The lawsuits argue that Melcher and Bassemier were prohibited from seeking office under the Little Hatch Act, a federal law limiting the political activities of people whose jobs are funded at least in part by federal money.

Melcher is facilities manager for the Community Action Program of Evansville, a not-for-profit agency that runs a federally funded Head Start early childhood and health program. Bassemier has been safety director at Evansville Regional Airport since 2002.

Lawyers for Melcher and Bassemier say their clients do not handle federal funds or direct federally funded projects.

The GOP lawsuits are inspired by the Indiana Court of Appeals’ Nov. 13 finding that Terre Haute Mayor Duke Bennett was ineligible to run for that office in 2007.

See this ILB entry from Nov. 23 for background.

Posted by Marcia Oddi on Saturday, December 20, 2008
Posted to Indiana Courts

Ind. Courts - "Bruns appointed Muncie City Court judge"

Rick Yencer of the Muncie Star-Press reports today IN A STORY THAT BEGINS:

Veteran attorney William Bruns was appointed Friday by Gov. Mitch Daniels as the next judge of Muncie City Court.
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On Jan. 1, Bruns -- like the governor a Republican -- will succeed Democrat Linda Ralu Wolf, elected last month as judge of Delaware Circuit Court 3. Wolf has been City Court judge since 1988.

Bruns, 72, has more than 40 years of experience practicing both criminal and civil law. Former Mayor Alan Wilson had also applied for the appointment.

The governor's selection of Bruns was news at the Muncie Bar Association's yearly Christmas party Friday night at Vera Mae's.

"It's a great choice," said John Brooke, president of the bar association.

Tom Cannon Jr., Bruns' longtime partner, added, "He is a lawyer's lawyer."

Cannon last month was elected judge of Delaware Circuit Court 5, and will also take office Jan. 1.

Bruns said the appointment was a good cap to his legal career, adding he would maintain a civil practice along with holding the judge's position, which pays $52,000 year.

Posted by Marcia Oddi on Saturday, December 20, 2008
Posted to Indiana Courts

Ind. Courts - Economy forces plan shifting local court costs to state to the slow track

Most of the state's papers today have stories on the local government overhal proposed by the Governor and his blue-ribbon commission last year. Niki Kelly's lengthy story in the Fort Wayne Journal Gazette begins:

INDIANAPOLIS – Round 1 of the latest fight to overhaul local government began Friday after Republican Gov. Mitch Daniels laid out his legislative agenda and Democratic House Speaker Pat Bauer responded by saying lawmakers should focus on the economy.

Bauer said the General Assembly has to write a new state budget, fix the state’s unemployment trust fund and help Hoosiers who need food, shelter and health care.

“With all that, I am not sure the legislature needs to be carving out chunks of time in 2009 to deal with proposals that offer an academic’s view of how government should operate, without any consideration given to whether such ideas are practical – or even feasible – in the real world,” he said.

But Daniels anticipated and rejected the argument as an excuse even before Bauer made it. “It is because resources are going to be so tight that we cannot afford not to make the changes that will both protect taxpayers and improve the quality of service for citizens of our state,” he said. “So now is exactly the time. The facts are the best friends of reform. Inertia is its largest enemy and together we must overcome it.”

Changes to the state court system proposed by the Kernan-Shepard report are not detailed in the main story, but are listed at the end of a side-bar:
Transfer the responsibility for funding of the state’s trial court system to the state over a period of years
Several other reports, such as that of the LCJ and the Indianapolis Star, do not mention the court system at all. Patrick Guinane's story in the NWI Times does include "Gradually shift responsibility for funding local trial courts to the state, but not until the state's financial outlook improves." in a list of "Local government reforms sought by Gov. Mitch Daniels."

Bryan Corbin's story in the Evansville Courier & Press conclude's:

Joining Daniels on Friday was Indiana Chief Justice Randall Shepard, who co-chaired the Kernan-Shepard Commission with former Gov. Joe Kernan. Shepard underscored another proposal in Daniels' plan: To have the state eventually assume the costs of local trial courts, public defender services and probation.

Annual costs of indigent defense are about $70 million statewide, of which the state pays about $20 million with local taxpayers paying the rest. Statewide costs to local taxpayers for probation is $33 million.

Shepard is proposing the state phase in its funding over five years, but the idea might have to wait until the economy and state revenues improve.

The ILB has had several entries on Recommendation #7 of the Kernan-Shepard Report, which recommends transferring the responsibility for all funding of the state’s trial court system to the state, including public defenders and probation, including this entry from Sept. 6th.

[More] Here are some quotes from the Governor's press release from Friday:

The Commission's recommendation is italicized, followed by the governor's recommendation, then a brief rationale. If the recommendation includes a change to the Commission's original recommendation, the change is also described. * * *

7. Transfer the responsibility for all funding of the state's trial court system to the state including public defenders and probation. - Recommended with changes

Rationale: Once the state's fiscal circumstances improve, it would make sense for the state to assume the costs of the trial court system over a period of years, including probation officers and public defenders. Indiana's courts could operate more efficiently and fairly, ensuring that all citizens have the same access to justice. A transition period would be necessary to allow time for currently serving judges to complete their terms in office.

Posted by Marcia Oddi on Saturday, December 20, 2008
Posted to Indiana Courts

Friday, December 19, 2008

Ind. Decisions - Transfer granted yesterday

The ILB has now received notice that the case of Rudrappa and Jayashree Gunashekar v. Kay Grose, d/b/a America's Affordable Housing J & K Mfg. (NFP) - a 2-1 opinion, was granted transfer yesterday, Dec. 18th.

See the ILB summary from August 12th here - 7th case. See also this ILB entry from Aug. 13th, and and the latter part of this ILB entry from yesterday

Posted by Marcia Oddi on Friday, December 19, 2008
Posted to Indiana Transfer Lists

Environment - Still more on: Who is responsible for cleanup costs?

Updating this ILB entry from Dec. 2, here again are some quotes from the earlier WLKI story:

Steuben County Commissioners and Angola City Council members met with representatives from Univertical yesterday and last night to discuss solutions to enviromental problems at the former Dana Corporation site in Angola which may force Univertical to leave Indiana. * * *

Dana had an agreement with IDEM to clean up the property after they left Angola some 15 years ago. But Dana is no longer liable for the clean up after they went into bankruptcy. Angola Mayor Dick Hickman said during last night's City Council meeting that solutions were still being explored by company, state and local officials. * * *

No IDEM representative was at last night's City Council meeting which prompted Council Member David Martin to say that spoke volumns to him. Steuben County Commissioners are expected to discuss the matter further during their December 18th meeting. A representative from IDEM has been invited to attend.

This WLKI story from yesterday reports:
(ANGOLA) - Indiana Department of Enviromental Management Commissioner Thomas Easterly presented several clean up options for the former Dana Weatherhead site in Angola at this mornings Steuben County Commissioners meeting.

He said the site where the Univertical plant is now located is heavily contaminated and that groundwater there is unusable. Easterly said at best, the pump and treat system operated by Dana for the past 10 years has slowed the spread of the pollution but an October sampling showed the first evidence of Angola's water supply being contaminated. It was also added in the presentation that the water supply is still considered safe for all uses.

Easterly said a multi party clean up would include use of a Dana stock settlement. But Dana stock was trading at 70 cents a share yesterday. It has been as high as $12 per share during the past year.

In addition, Univertical would contribute to the clean-up costs and the Indiana Finance Authority State Revolving Fund would provide low interest loans to the city and county for the balance of the funding. There would also be economic incentives to keep Univertical in Angola.

Other options include a federal government Superfund and an Indiana Brownfield Grant but certain criteria would have to be met.

With Univertical pledging $1 million towards the clean up, it's estimated the local share would come to $6.4 million. The cost for the entire project is estimated to be about $7.5 million.

Angola Mayor Dick Hickman said the city hopes to have a response shortly. County Commissioners took no formal action following Easterly's presentation and a question and answer session.

The Commissioners meeting room was packed for the presentation this morning with numerous state and local officials as well as representatives from Univertical on hand.

Posted by Marcia Oddi on Friday, December 19, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Jacqueline Fortner v. Farm Valley - Applewood Apartments , a 12-page opinion, Chief Judge Baker writes:

Appellant-defendant Jackie Fortner appeals the judgment of eviction and damage award entered in favor of appellee-plaintiff Farm Valley-Applewood Apartments (Farm Valley). Specifically, Fortner argues that the notice of eviction she received from Farm Valley was inadequate and Farm Valley’s failure to follow certain grievance procedures violated her right to procedural due process. Moreover, Fortner contends that the evidence presented at trial did not support the judgment of eviction and damage award. Farm Valley cross-appeals, claiming that the trial court improperly limited the amount of attorney’s fees to which it was entitled.

We conclude that the eviction order and damage award were supported by the evidence. However, we also find that the trial court erred in determining the amount of attorney’s fees that Fortner was obligated to pay to Farm Valley. Thus, we affirm in part, reverse in part, and remand this cause with instructions that the trial court conduct a hearing to determine the reasonableness of the fees and award such fees in an amount not to exceed $3,335.04.

NFP civil opinions today (4):

Marshane Bonaparte v. Phyllis Bonaparte (NFP) - "On appeal, Marshane raises three issues, which we restate as 1) whether the trial court abused its discretion when it refused to find Phyllis in contempt of court; 2) whether the trial court abused its discretion when it calculated Marshane’s child support arrearage; and 3) whether the trial court abused its discretion when it calculated Marshane’s weekly child support obligation. Concluding that the trial court abused its discretion when it refused to find Phyllis in contempt, but that the trial court did not abuse its discretion when it calculated Marshane’s child support arrearage and weekly child support obligation, we affirm in part and reverse in part."

In the Matter of the Supervised Estate of Clarence L. Brown (NFP) - "Jack R. Zirkle, David A. Zirkle, Thomas A. Zirkle, Toby A. Zirkle, and Tracy E. Zirkle (referred to collectively as the Zirkles) appeal the trial court’s construction of the Last Will and Testament of Clarence L. Brown (the Will). The Zirkles contend the trial court erroneously ordered them to pay $117,870 to each Ruth E. Staggs and Delores Jean Dearing as a condition to the Zirkles receiving certain real estate under the Will. We reverse and remand. "

W.H. v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc. (NFP) - "W.H. (“Father”) appeals the trial court’s termination of his parental rights over his three minor children, W.R.H., Ti.M., and Ta.M. Father raises a single issue for our review, namely, whether the trial court’s order terminating his parental rights is clearly erroneous because the children are not currently in pre-adoptive homes. We affirm. "

Joel Hawn v. Ispat Inland, Inc. (NFP) - "Joel Hawn filed an Application for Adjustment of Claim with the Worker?s Compensation Board of Indiana (the “Board”) against his employer, ISPAT Inland, Inc. (“Inland”). Inland moved the Board to dismiss the Application, and a Single Hearing Member granted that motion. Thereafter, Hawn petitioned the Full Board, which affirmed the Single Hearing Member?s dismissal. Hawn now appeals and presents a single issue, namely, whether the Board properly dismissed his Application pursuant to Indiana Code Section 22-3-2-13. We affirm."

NFP criminal opinions today (7):

David Shively v. State of Indiana (NFP)

Danny L. Richards v. State of Indiana (NFP)

David R. Ruckle v. State of Indiana (NFP)

Booker Sewell, III v. State of Indiana (NFP)

Todd N. Martin v. State of Indiana (NFP)

Kenneth Scott v. State of Indiana (NFP)

Johnnie Lamont Walker v. State of Indiana (NFP)

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

Environment - Still more on: IDEM dissolves office of enforcement

Updating earlier ILB entries from Dec. 14th and Dec. 16th, today the Fort Wayne Journal Gazette has this editorial. Some quotes:

Enforcing environmental regulations and then punishing violators is the raison d’être for the Indiana Department of Environmental Management. But for some indefensible reason, IDEM officials have made two decisions recently that call into question their willingness to fulfill their responsibility to protect Hoosiers and the environment.

IDEM is closing its office of environmental protection.

Equally questionable is IDEM’s move to adopt new policies that narrow the definition of environmental harm and investigate only after the environmental damage has been done. State officials charged with protecting people from environmental law violations will instead be asking Hoosiers to prove they were harmed by such things as chemical spills, air pollution that exceeds permitted standards or animal feces flowing freely into state waterways.

Proving environmental harm can be a difficult and lengthy process. It can take decades for a cancer cluster to become evident. Citizens should not have to wait until a whole neighborhood gets sick before state regulators decide to enforce state laws. * * *

The wrongheaded moves are yet more black marks against Gov. Mitch Daniels’ already spotty record for supporting environmental protection. The environmental management department is quickly becoming a joke. But the further dismantlement of government oversight over polluters is no laughing matter.

More News. The ILB has learned that while IDEM is moving Office of Enforcement employees into the air, water and land departments, it is at the same time moving environmental rules development out of the individual departments and into the Commissioner's office.

More on IDEM Enforcement. In earlier entries this week, I noted that I had never seen the 2003 policy document that IDEM is proposing to replace.

The currently "pending" version [08-006-NPD -- Pending] states that it supersedes the policy titled "Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003."

I suggested that until the pending nonrule policy document (NPD) was finalized pursuant to the requirements of IC 13-14-1-11.5 , the 2003 document governing environmental enforcement presumably was still in effect.

But I could not locate it on the IDEM website and wrote: "I asked folks in IDEM external affairs office for a copy of the 2003 policy first thing Monday morning (Dec. 15th). They are attempting to locate it." Yesterday, Thursday Dec. 18th, I inquired as to their progress in locating the document and in response received an official document essentially acknowledging that they had received my request, stating part:

A search for the information will be will conducted and once the search has been completed you will be contacted informing you of whether any information was found. If the information is located then the number of pages; cost to copy, request for copying form and information for payment of copying will be sent to you or you will receive a telephone call from one of the Central File Room staff members.
This, for a document that sets out the State's current environmental enforcement policy? The whole purpose of the nonrule policy document law, IC 13-14-1-11.5, is to prevent IDEM from implementing "nonrule" policies that are not available to the public. As a result, the NPDs are all available here on the IDEM website, except it seems for 2003 document at issue.

Fortunately, the ILB has obtained a copy of the 16-page document, "Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003," from another source, and has posted it here.

To understand the IDEM changes, the two documents must be reviewed side-by-side. To do that, both versions must be available.

Posted by Marcia Oddi on Friday, December 19, 2008
Posted to Environment

Ind. Courts - "Marion County Judge Grant Hawkins petitions court not to remove him"

Jon Murray reports today in the Indianapolis Star on the 41-page Petition for Review filed by Judge Grant W. Hawkins with the Supreme Court Dec. 11, 2008. Murray's story begins:

A Marion County judge has filed a petition acknowledging he made mistakes in a case in which a man found guilty of rape remained in prison nearly a year after the court set aside his conviction. But Judge Grant Hawkins also insists none of those mistakes warrants his removal from the bench.

In his 41-page petition, Hawkins, whose fate is in the hands of the Indiana Supreme Court, also said a commissioner who oversaw the case was not convinced the evidence totally cleared the defendant.
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Rather than take the rare action of removing a judge, Hawkins suggested, the justices could suspend him. He was provisionally suspended last month pending the outcome of the case.

The disciplinary case against Hawkins stems from the successful appeal by Harold David Buntin, who presented new DNA evidence in Hawkins' court in 2005 that helped him win his freedom.

But Buntin had to wait in prison nearly a year -- he spent a total of 13 years behind bars -- until the discovery of the court order setting aside his conviction. That order had sat in his file for nearly a year, possibly longer.

Hawkins, elected to the bench in 2000, apologized to Buntin at his release hearing.

Two panels, including the Indiana Commission on Judicial Qualifications, have rebuked Hawkins and pressed for his removal for giving misleading statements to investigators who looked into the matter.

For background, start with this ILB entry from Nov. 25th.

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

Ind. Law - "State Board of Accounts findings don't always bring results"

Today's story by Joy Leiker in a now week-long series in the Muncie Star-Press on the Delaware County Drug Task Force (DTF) operations addresses the State Board of Accounts. Some quotes from the long story:

For 10 years the SBA criticized the Muncie Police Department for depositing seized money into the wrong accounts, thus skirting state law.

But no one stopped the MPD, or more specifically the Muncie-Delaware County Drug Task Force, from making those deposits. And the writeups in the annual audits continued like clockwork.

If there are wrongs to be corrected, or laws broken, the SBA relies on prosecutors or police, often the Indiana State Police, to take enforcement upon themselves. SBA reports often become evidence in those cases.

But in instances when police or prosecutors are on the hot seat, there's no provision for someone else to correct the wrongs committed.

According to state statute and SBA's own mission statement, it is intended to serve as an independent force so as to give Hoosiers "complete confidence in the integrity and financial accountability of state and local governments (and) to ensure that these institutions are operating efficiently in compliance with applicable statutes."

This series started on Sunday, Dec. 14th with a story by Ms. Leiker headed "What went wrong?: The DTF began 20 years ago to fight Muncie drug culture," which the ILB missed. It began:
For 20 years, prosecutors in Muncie collected money and property from drug dealers, ostensibly to fund the police work that went into the busts.
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It seemed so simple and reasonable. Create a task force specifically focused on fighting Muncie's drug culture. Arrest the bad guys. Use any seized money and property from these arrests to fund more operations and put any remaining money into a state fund as mandated by law.

But somewhere along the way, something went wrong. Police and prosecutors began to spend seized money on more than just the war on drugs -- carpeting, gym equipment, trainers -- and a closed-door, possibly illegal system of secret deals came into play. Criminals were stripped of cash and property, sometimes before charges were even filed, and some defendants reached deals and never were charged at all.

Posted by Marcia Oddi on Friday, December 19, 2008
Posted to Indiana Law

Ind. Law - "New Albany will tighten adult-club regulations"

Grace Schneider reports today in the Louisville Courier Journal:

With about 40 members of an anti-pornography group looking on last night, New Albany City Attorney Shane Gibson told the city council that he has enlisted a legal expert to help draft a new ordinance to help tighten regulation of adult-entertainment businesses.

While a new ordinance might not prevent the continued operation of a controversial gentleman's club that opened recently, an updated ordinance would toughen regulations on similar businesses looking to locate in New Albany, Gibson said. * * *

The city hasn't attempted to enforce a 2001 ordinance aimed at regulating adult-entertainment clubs because Gibson said he didn't think several of its provisions, including a $5,000 licensing fee for managers and dancers, were legally enforceable.

The ordinance was drafted seven years ago amid fears that adult businesses thriving in Louisville would "spread" into Southern Indiana, Gibson said.

Gibson promised to provide compact discs packed with information for council members in the next week so they can review court cases and other legal issues surrounding the regulation of such establishments.

Council President Jeff Gahan asked members Bob Caesar, Diane Benedetti and Kevin Zurschmeide to serve on a committee to review and comment on the development of the ordinance.

During the meeting, Bryan Wickens, a New Albany lawyer who is president of ROCK, praised the city for starting the effort.

He said he and other members of the group would gladly work behind the scenes to help craft a sound ordinance that could withstand court tests.

The city is still fighting a legal battle stemming from a separate ordinance dealing with adult bookstores and movie venues. An ordinance was adopted in 2004 in an attempt to block the opening of New Albany DVD, which sold videos and other items on West Main Street.

But the business, now called Cleopatra's Adult Bookstore, has been allowed to remain open after a federal judge issued an injunction against the city to prevent it from trying to close the store, saying the city's zoning ordinance was too broad.

The case is on appeal before the 7th U.S. Circuit Court of Appeals in Chicago.

The case, New Albany DVD v. City of New Albany, was argued before the 7th Circuit on Sept. 27, 2005. Judge Sara Evans Barker issued the district court opinion on Jan. 6, 2005

But, as noted in this comprehensive ILB entry from July 4, 2008:

[There is] another Judge Barker ruling - Annex Books Inc, et al v. City of Indianapolis - that is even older, from August 30th, 2004 -- see this ILB entry from Sept. 7, 2004. (Court of Appeals Docket #: 05-1926) Oral arguments in the as-yet-to-be-decided case were held before Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005.

Posted by Marcia Oddi on Friday, December 19, 2008
Posted to Indiana Law

Thursday, December 18, 2008

Law - Illinois and national "right of conscience" rules at issue

In a decision issued this morning, per a report from the Springfiled State Journal-Register:

llinois Supreme Court justices, in a 5-2 decision issued this morning, sidestepped the issue of whether pharmacy owners have a state-granted "right of conscience" to turn away customers seeking so-called "morning-after pills."

But justices overruled a lower court ruling and sent back to Sangamon County Circuit Court the pharmacy owners' appeal of Gov. Rod Blagojevich's 2005 first-in-the nation rule that requires pharmacies to fill prescriptions for Plan B and other emergency contraceptives.

The high court chose not to grant the request of pharmacy owners Luke Vander Bleek of Morrison and Glenn Kosirog of Wheaton, who wanted the justices to strike down the governor's rule. The businessmen, who also are pharmacists, believe that Plan B can cause what they consider to be the equivalent to an abortion. They contended that pharmacy owners are exempt from the rule because they are covered by an existing law called the Illinois Health Care Right of Conscience Act.

And a different, but related story today, this one from Laura Meckler of the Wall St. Journal, is headlined "Bush-Era Abortion Rules Face Possible Reversal: Obama Team Looks at Regulation Set to Be Finalized This Week Letting Medical Staff Refuse to Take Part in Practices They Oppose." It begins:
WASHINGTON -- The outgoing Bush administration this week will finalize a regulation establishing a "right of conscience" allowing medical staff to refuse to participate in any practice they object to on moral grounds, including abortion but possibly birth control and other health care as well.

In transition offices across town, officials in the incoming Obama administration have begun considering how and when to undo it.

The regulation is one of a swath of abortion and other reproductive-health issues under review by the Obama team, which is preparing to reverse a variety of Bush measures, according to officials close to the transition. The review is part of a sweeping scrutiny of Bush-era legislation and regulation on issues across the federal government, from environmental and labor rules to defense spending.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to General Law Related

Ind. Decisions - "BMV license policy questioned"

Here is the preview description for the case of Lyn Leone, et al vs. Commissioner of the Bureau of Motor Vehicles, argued before the Court of Appeals on Tuesday, Dec. 16:

Appellants-Plaintiffs appeal the trial court's Findings of Fact, Conclusions of Law and Order denying their Motion for Preliminary Injunction. The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration. The Scheduled Panel Members are Judges Riley, Bailey and Bradford.
Here is the report today of Sandra Chapman of 13 Eyewitness News - WTHR:
Thousands of Indiana residents with legal name changes don't have it so easy. Under the BMV's new process, they've been stripped of their licenses and ID cards despite state law.

"Indiana law recognizes that people's legal names may be different than what's on their Social Security records," said Ken Falk, Indiana Civil Liberties Union.

For example, thousands of Indiana women take their husband's name. But the government doesn't require them to report that to Social Security, since earnings and taxes are tracked through their issued numbers. It's good enough for them, but not Indiana's BMV.

"What we're talking about is more than 15,000 people who in April were told their licenses or IDs would be invalidated, many of them who have had them invalidated. We're saying that violates Indiana law," said Falk.

The Indiana Civil Liberties Union wants the State Court of Appeals to reinstate those licenses and IDs, forcing the BMV to explain its actions.

"The BMV was not sending out invalidation notices to people," said Frances Barrow, deputy attorney general.

"Yes, they were," said Judge Patricia Riley at the Indiana Court of Appeals. "They were going to take their license away."

"It was a notice of the bureau's interpretation of existing law," said Barrow.

"Didn't they say if you didn't come in and take care of it, that your license or ID card would be revoked?" said Judge Cale Bradford.

"That's the concern," said Barrow. "That somebody has a Social Security card with a name on it that's not the one that they're using as their legal name."

Even if drivers have a certified court order showing a legal name change, the BMV won't restore the license. The agency only wants one thing: the legal Indiana name to match the Social Security record.

"It's a matter of a national database that shows everyone's names that is on the Social Security records - that are birth records that this is who people are," said Barrow.

"Now you're scaring me," said Judge Riley.

You can watch the entire oral argument here or if that doesn't work, this should start the nearly one-hour RealAudio video (after about 3 minutes of "title only.").

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In State v. Charlene Davis, an 11-page, 5-0, decision, Justice Rucker writes:

Today we examine the question of whether it is a violation of fundamental fairness to hold criminal charges over the head of an incompetent defendant who will never be able to stand trial. The answer in this case is yes. * * *

We can conceive of a number of instances in which the State would have some legitimate interest in determining the guilt or innocence of an accused even though the accused, in effect, had already been punished. * * *

In this case however the State makes no claim that any of the cited examples are applicable. Nor does the State otherwise argue on appeal that there is any substantial public interest to be served by the determination of Davis‟ guilt or innocence now that she may no longer be required to serve any further confinement. We also observe that the indefinite prolonging of criminal charges carries the very real likelihood of subjecting Davis to the “anxiety and scorn accompanying public accusation,” such that the trial court‟s action may be supported. * * *

Conclusion. Because Davis‟ pretrial confinement has extended beyond the maximum period of any sentence the trial court can impose, and because the State has advanced no argument that its interests outweigh Davis‟ substantial liberty interest, we conclude it is a violation of basic notions of fundamental fairness as embodied in the Due Process Clause of the Fourteenth Amendment to hold criminal charges over the head of Davis, an incompetent defendant, when it is apparent she will never be able to stand trial.

The trial court did not abuse its discretion in granting Davis‟ motion to dismiss. We therefore affirm the trial court‟s judgment.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Mikel A. Schilling v. Huntington County Community School Corp., et al , an 18-page, 2-1 opinion, Judge Najam writes:

Mikel A. Schilling appeals the trial court's grant of summary judgment to the Huntington County Community School Corporation (“Huntington”), the Huntington County Community School Corporation Employee Benefit Trust, and American Health Care Partnership, Inc. (“AHCP”) (collectively, “the School”). Schilling raises two issues for our review, which we restate as whether the trial court properly determined that the School?s Employee Health Plan (“the Health Plan”) is unambiguous and operates to exclude Schilling from recovering for injuries sustained in a farm-related accident. * * *

In sum, the trial court properly granted summary judgment to the School. Exclusion 33 is unambiguous and operates to exclude from the Health Plan's coverage all injuries that would be covered by Indiana's Worker's Compensation Act, regardless of whether worker's compensation was actually obtained by the insured. Further, Exclusion 33 is not contrary to public policy. Accordingly, we affirm the trial court. Affirmed.

ROBB, J., concurs.
MAY, J., dissents with separate opinion. [which begins, on p. 12] The majority's interpretation of Exclusion 33 would require any School employee who might possibly be eligible for worker's compensation coverage, from whatever source, to buy it or risk losing insurance benefits provided by the Health Plan. The policy language before us cannot properly be read to have that effect, and I must therefore respectfully dissent.

In Terry Gerstbauer and Capitol Speedway, Inc. v. Stephen W. Styers, a 27-page, 2-1 opinion, Judge Najam wrtites:
Terry P. Gerstbauer and Capitol Speedway, Inc. (“Capitol”) appeal from the trial court’s order on attorneys’ fees. They raise three issues for our review, which we consolidate and restate as whether the trial court abused its discretion in determining the reasonableness of Gerstbauer and Capitol’s attorneys’ fees. On cross-appeal, Stephen W. Styers also challenges the trial court’s award of fees as well as its judgment that he cannot recover on his statutory trespass claim. We affirm in part and reverse and remand in part. * * *

Under the circumstances, unless Gerstbauer wanted to concede or be defaulted, he had no choice but to continue employing his attorneys throughout this litigation. The amount of fees incurred by both parties in this case appear unreasonable “on their face,” as the trial court recognized. Appellants’ App. at 22. But a proper consideration of Professional Conduct Rule 1.5(a) supports our attorneys’ fee award in this appeal.

The trial court abused its discretion in awarding Gerstbauer attorneys’ fees. The court misinterpreted Paragraph 12 of the parties’ lease, and it misapplied Professional Conduct Rule 1.5(a). Accordingly, we must reverse the court’s fee award. However, rather than remand for reconsideration, we hold that Gerstbauer reasonably incurred $79,577.89 in attorneys’ fees, and we direct the trial court to enter a judgment against Styers that includes that sum. We also hold that the issues raised by Styers on cross- appeal are without merit.

Affirmed in part and reversed and remanded in part.

ROBB, J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 25] I agree with the majority that the trial court should not have determined Gerstbauer’s attorney fees by looking only to the amount of the judgment. However, the majority’s decision to award fees based solely on evidence presented by Gerstbauer’s opponent amounts to an improper reweighing of the evidence that was before the trial court. I would remand so the trial court could properly recalculate attorney fees based on its analysis of the evidence before it in light of the legal standards the majority has articulated.

In Art Hill, Inc. v. Review Board of the Indiana Dept. of Workforce Development, and Terrence Horan, a 9-page opinion, Judge Najam concludes:
Therefore, we hold that a party to an unemployment hearing may voluntarily waive the opportunity for a fair hearing where the party received actual notice of the hearing and failed to appear at or participate in the hearing.

In compliance with Indiana Code section 22-4-17-6 and 646 Indiana Administrative Code 3-12-21(d), the ALJ provided notice of the telephone hearing and instructions to both parties that required each party to provide a single telephone number where the party could be contacted at the time of the hearing. Although the ALJ requested written notice of the contact telephone number, he also specifically authorized notice by telephone or fax if time would not permit notice by mail to arrive prior to the hearing. Art Hill provided a single contact telephone number to the ALJ two days prior to the hearing. However, Art Hill failed to notify the ALJ that its contact telephone number had changed prior to the hearing. Art Hill also failed to take the simple step of leaving a representative at extension 5353 to accept and transfer the ALJ’s incoming call. Rather, Art Hill waited until fifteen minutes after the scheduled beginning of the hearing to attempt to contact the ALJ. By that time, the ALJ had concluded or nearly concluded the hearing.

Based on these facts, Art Hill cannot say that it was denied a reasonable opportunity for a fair hearing. * * * Therefore, Art Hill was not denied due process when the ALJ conducted the telephone hearing without its participation.

Conclusion. Art Hill was not denied due process when the ALJ conducted an unemployment hearing by telephone without Art Hill’s participation where Art Hill was not available at the contact telephone number provided to the ALJ. Therefore, the Review Board did not err when it affirmed the decision of the ALJ granting unemployment benefits to Horan. Affirmed.

NFP civil opinions today (3):

Lowell Abbe and Carolyn Abbe v. The Cadle Company (NFP) - "The Abbes contend that the law of the case doctrine prohibited the trial court from reconsidering its earlier decision on Cadle’s motion for relief from judgment. But the law of the case doctrine provides that “an appellate court’s determination of a legal issue is binding in subsequent appeals given the same case and substantially the same facts.” Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1048-49 (Ind. Ct. App. 2007). In other words, the doctrine bars subsequent litigation of a fact or issue decided by an appellate court. The doctrine does not apply to rulings made by a trial court, which, again, may reconsider its rulings at any time so long as the action is pending resolution. See Ind. Trial R. 53.4; Stephens, 734 N.E.2d at 1135. Thus, the Abbes’ contention that the trial court lacked the power to review its earlier decision in this case would render Trial Rule 53.4 meaningless and is without merit. Affirmed."

Michael Poulimas v. Angel Ewing (NFP) - "Michael Poulimas appeals the trial court’s decision regarding his personal property and its award to Angel Ewing. We affirm. * * *

"Shortly before moving in together, Ewing and Poulimas entered into a Joint Cohabitation Agreement (“JCA”) on February 6, 2004. The JCA was drafted by Poulimas. Neither party disputes the validity of the JCA or any of its provisions. The couple purchased a home in Sharpsville. The JCA detailed procedures to deal with the home in the event that the couple ended the relationship. * * *

"The trial court’s findings and conclusions regarding the personal property of the parties and the $12,060.98 award with respect to the real property are not clearly erroneous. We affirm. "

Timberland Lumber Co., et al v. Marrill Getche (NFP) - "Tim Boone and Timberland Home Center (collectively, Timberland, unless otherwise indicated) appeal a judgment in favor of Marrill Getche in Getche‟s small claims action against Timberland and A & B Windows for breach of contract. Timberland presents the following consolidated, restated issue for review: Did a contract exist between Getche and Timberland? We affirm. "

NFP criminal opinions today (5):

Rex Johnson v. State of Indiana (NFP)

Sidney G. Hopkins v. State of Indiana (NFP)

Jeremiah Jonas Walls v. State of Indiana (NFP)

Daryl M. Payne v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues three Indiana decisions today

In U. S. v. Derek S. Davey (ND Ind., CJ Miller), a 12-page opinion, Judge Wood writes:

In United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), this court held that explicit sexual talk does not, by itself, amount to the kind of “substantial step” needed to prove an attempt to violate 18 U.S.C. § 2422(b), which forbids knowingly persuading, inducing, enticing, or coercing a person under the age of 18 to engage in criminal sexual activity. The present case requires us to decide whether defendant Derek Davey’s conduct similarly fell short of an attempt to violate § 2422(b), or if Davey crossed the line that demarcates criminal conduct. Davey’s case is further complicated by the fact that he pleaded guilty to the § 2422(b) violation and was unsuccessful in persuading the district court to allow him to withdraw his guilty plea. We conclude that the district court did not abuse its discretion when it denied the motion to withdraw, and that the factual basis for Davey’s plea establishes that he took several substantial steps toward completion of the offense. We therefore affirm.
In U.S. v. Donald Zawada (ND Ind., CJ Miller), a 9-page opinion, Judge Wood writes:
In this case, as in United States v. Davey, No. 07-3533 (issued today), we must decide what it takes to commit the offense of attempting to violate the statute that prohibits knowingly persuading, inducing, enticing, or coercing a minor to engage in criminal sexual activity, see 18 U.S.C. § 2422(b). A jury found Donald Zawada guilty of attempting to violate both § 2422(b) and 18 U.S.C. § 1470, which prohibits knowingly transferring obscene material to a person under the age of 16. There is ample evidence in the record to support the jury’s verdict on the latter offense. Our review of the § 2422(b) conviction on this point is for plain error only, as we explain later. From that perspective, we have no trouble concluding that the steps Zawada took to bring about a forbidden sexual encounter with a minor were sub- stantial enough to support the attempt conviction. We therefore affirm.
In Jim Aaron v. Susan J. Mahl (ND Ind., CJ Miller), an 18-page opinion, Judge Tinder concludes:
We AFFIRM the district court’s grant of summary judg- ment on the interpleader claims to Merrill Lynch, as well as the award of attorneys’ fees.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Ind. (7th Cir.) Decisions

Courts - "NJ Supreme Court permits 'Super Lawyers' advertisements"

The ILB had a number of entries in 2006 on "Super Lawyers" and whether the designation could be included in a lawyer's advertising. The issue originated in New Jersey. Today the New Jersey Star-Ledger reports, in a story by Matthew Reilly:

Get ready, New Jersey: The Super Lawyers are coming!

The state Supreme Court ruled yesterday that lawyers who are named to lists such as "Super Lawyers" or "Best Lawyers in America" should be allowed to include that information in their advertising.

A committee of the court -- in a decision known as "Opinion 39" -- ruled two years ago that such advertising violated the Rules of Professional Conduct for lawyers. The panel said there was a prohibition against ads that are comparative or likely to create unjustified expectations about results.

Lawyers, however, contended that the advertising is a form of commercial speech protected by the First Amendment and not subject to blanket suppression. They were backed in June by a special master appointed by the court to review the issue.

The Supreme Court said it agreed with the special master's analysis that the ban on "truthful, fact-based claims in lawful professional advertising could be ruled unconstitutional..."

"That conclusion mandates that Opinion 39 be vacated," the court said.

The Supreme Court also asked three advisory committees to review and modify the rules on advertising. It said they should recommend changes that take into account concerns that such advertising could be misleading while respecting free speech.

"That balance must be struck in light of the analyses and recommendations presented in the report," the court wrote in its 22-page ruling.

How Appealing has a link to the opinion, here.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Courts in general

Ind. Courts - Has statute of limitations for theft passed because the theft occurred in September 2002, not in January 2003?

That question is the focus of a story today by Rebecca S. Green of the Fort Wayne Journal Gazette:

An Allen Superior Court judge convicted a 55-year-old Fort Wayne man of theft Wednesday, denying a defense request to dismiss the charges because of how much time had elapsed.

Rudrappa Gunashekar, of the 10000 block of Winding Creek Lane, was charged with stealing money from a Decatur-based contractor who repaired a building owned by Gunashekar that was damaged in a fire.

According to court documents, Gunashekar’s insurance company issued a three-party check to pay for the work in September 2002. Gunashekar cashed the check, but the contractor, Kay Grose, never signed it. Gunashekar is accused of committing the theft Jan. 3, 2003.

But defense attorney Mark Chambers argued the statute of limitations for theft had passed because the theft occurred in September 2002, not in January 2003 as prosecutors asserted.

But at the conclusion of the bench trial, Allen Superior Court Judge Kenneth Scheibenberger ruled that while Gunashekar did take control of the check in September 2002, he never gave Grose the money when the work was completed the following January.

“The defendant, however, thought he could better use the $130,000 rather than give the check to her to hold onto,” he said. “He did not give her what was her money. … Once she completed the work, it was her money in his bank account and it was his obligation to pay her.”

The story also notes a related case:
A civil case is also pending in the matter. In August, the Indiana Court of Appeals overturned a ruling by Allen Superior Court Judge Nancy Boyer, who awarded Grose nearly $450,000.

The higher court ruled Boyer abused her discretion by denying a request by Gunashekar to postpone the case after his lawyer quit and he proceeded without an attorney.

Grose appealed the appellate court’s ruling, and the case has been transferred to the Indiana Supreme Court, according to court records.

For more, see this Aug. 13th ILB entry headed "New trial for losers in $450,000 verdict."

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Indiana Courts

Ind. Law - "DTF seizures: How it's done elsewhere is similar to here"

Today's lengthy story by Joy Leiker in what appears to be a week-long series by the Muncie Star-Press on the Delaware County Drug Task Force operations seems to be an opinion piece or an analysis. It begins:

Prosecutors across Indiana have varying levels of control over money and other assets seized by police and ultimately forfeited by criminals.

Some have absolute command of the checkbook, while others must present purchases to either the county council or even a judge for final approval.

So while there are questions about how the Muncie-Delaware County Drug Task Force spent its money, and also how Prosecutor Mark McKinney pursued criminal and civil action against drug defendants, other counties around the state don't provide an absolute guideline of what should have been done here.

Clearly, a lack of oversight in Muncie created problems and left the DTF and prosecutor, two entities whose boundaries already were blurred, with absolute power.

At the same time, the fact that a few other counties do business the same way shows there's room for improvement statewide. Absent that, the only checks and balances in place on a daily basis are the ones that local officials inflict upon themselves. Once a year the State Board of Accounts might cite questionable spending it finds as part of an annual audit, but the SBA doesn't have the power to enforce its own rules, so that's usually left to local police and the prosecutor.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Indiana Law

Environment - Still more on "Local air quality controls dealt blow"

Supplementing earlier ILB entries on IDEM's termination of state air monitoring contracts with Indianapolis and Evansville, and Terre Haute, is this story today from Bowdeya Tweh of the NWI Times that reports:

Hammond city officials say they are reeling from a state agency's decision to terminate an air quality contract earlier this month.

The Indiana Department of Environmental Management told six municipalities, including Hammond and Gary, Dec. 1 that it would either not renew or soon terminate service contracts with local environmental agencies for "air permitting, air monitoring and compliance functions," according to Rob Elstro, spokesman for IDEM's Office of Air Quality.

Both Hammond and Gary had two-year contracts set to expire Dec. 31, 2009, but they will be terminated March 31.

Ronald Novak, director of Hammond's Department of Environmental Management, said the decision to cancel air quality contracts with the city was like "pulling the rug from underneath us."

Mayor Thomas McDermott Jr. said the move was unexpected and puts the city in a bind because the budgets for the 2009 fiscal year have already been approved locally and sent to the state. Also, McDermott said the city already took the environmental department off the tax rolls next year, so the department could rely on fine and fee collection to balance its budget. He was disappointed that the department made the decision without giving advance notice.

"At least five employees' salaries are covered by the state," McDermott said. "I just feel it's unprofessional and going backwards. We know better in Hammond what's going on than in Indianapolis. It's a step backwards for environmental compliance."

Novak said the contract was worth between $300,000 and $400,000 annually. The city's environmental department has nine employees.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Environment

Ind. Courts - "Accused Schererville attorney withdraws law license"

Andy Grimm reports today in the Chicago Tribune in a story that begins:

A Schererville attorney charged with stealing money from his clients has given up his law license.

William Crabtree II formally resigned from the state bar last week, ending an investigation by the state Supreme Court Disciplinary committee into transactions in his firm's trust account that apparently show the attorney shuffling hundreds of thousands of dollars in money belonging to two clients in 2007 and 2008.

Crabtree still faces criminal charges in federal court, but the state Supreme Court has ended disciplinary proceedings that could have seen him disbarred. Crabtree will have to wait at least five years to apply to the disciplinary commission to have his license reinstated, court spokeswoman Kathleen Dolan said Wednesday.

A grand jury in October filed fraud charges against Crabtree, alleging that from 2007 to August 2008, he failed to pay some $350,000 in estate taxes on a clients' $1.4 million inheritance, then took money from another clients' account to cover the missing funds.

Posted by Marcia Oddi on Thursday, December 18, 2008
Posted to Indiana Courts

Wednesday, December 17, 2008

Ind. Courts - Supreme Court names Maggie L. Smith to the Committee on Rules of Practice and Procedure

From a release today that begins:

The Indiana Supreme Court named Maggie L. Smith to the Committee on Rules of Practice and Procedure. Smith’s term begins January 1, 2009 and expires June 30, 2014, Chief Justice Randall T. Shepard announced today.

Smith replaces Mary Nold Larimore whose term expires at the end of 2008. Larimore, an Ice Miller attorney, was appointed to the Committee in January 1999. Chief Justice Shepard is grateful for her service and said, “Mary has dedicated many long hours to this Committee. It is obvious that she is committed to serving the Court and her fellow attorneys by making sure Indiana has clear and understandable rules. She truly left her mark of professionalism by helping to shape rules ranging from parenting time guidelines to evidence.”

Smith regularly practices before the Indiana Supreme Court and believes that courtroom experience will serve the Committee. She also points to her clerkship with Justice Brent Dickson as having shaped her view of Indiana trial, appellate, and evidence rules. Smith explained, “I really developed an appreciation for just how important "rules" are in the legal field when I clerked for Justice Dickson. I saw the tremendous impact the failure to understand or adhere to rules had on cases the Supreme Court was deciding.”

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Indiana Courts

Law - More on: Law prof gives Illinois AG's brief a "C-" [Updated]

Updating this ILB entry from Dec. 14th, the Supreme Court of Illinois has rejected the Illinois AG's motion. See more here, per William A. Jacobson, Associate Clinical Professor of Law, Cornell Law School.

Here is the brief Chicago Tribune story.

[Updated 12/18/08] This story from the Chicago Tribune includes links to the brief denials.

This story by Deanna Bellandi of the Associated Press has more detail.

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to General Law Related

Ind. Gov't. - County Official rejects calls to quit over e-mails

Rebecca S. Green has an interesting story today in the Fort Wayne Journal Gazette:

Huntington County Commissioner Jerry Helvie plans to stay in his elected position.

Helvie said Tuesday he will not resign his position in spite of calls from other officeholders that he do so.

Late last week, Helvie came under fire after it was revealed he was behind at least two breaches of the county e-mail system, requesting that the county’s Geographic Information System director, Mike Snelling, access the accounts of County Coroner Leon Hurlburt and the commissioners’ secretary.

On his own, Snelling proceeded to poke around in more than a dozen other county e-mail accounts, including those of four other elected officials. When the breach was discovered before Thanksgiving, the commissioners questioned Snelling.

Helvie then told the commissioners he asked Snelling to look into the first two accounts. Helvie said he thought he was acting under his authority as a commissioner.

Snelling is currently serving a 10-day suspension, but last week at a special meeting of the commissioners, numerous officeholders and county employees vented their frustration at the breach of trust.

County Treasurer Cindy Yeiter read a letter, signed by a number of county officials, including Hurlburt and Sheriff Kent Farthing, asking for Helvie to step down.

And the Indiana State Police are still investigating. Huntington County Prosecutor Amy Richison has asked Huntington Superior Court Judge Jeff Heffelfinger to appoint a special prosecutor in the case.

The decision to remain as a commissioner came after a discussion with his family and his attorney, Helvie said. “I will continue to serve the public that elected me into that position,” he said.

Yeiter said she was not surprised by his decision. “We do our best to stand up for what’s right,” she said. “There’s always the legal ramifications, and then there’s always, in two years, a decision left to the voters.”

The story calls to mind the beginning of the article I wrote several years ago on the separation of powers in the county courthouse. It begins:
A recent story out of Grant County reported:
When Grant County, Ind., commissioners were caught snooping in the sheriff’s e-mail, it caused a ruckus. But when the county board’s response was to send all county employees a “safety agreement” that would allow the commissioners to monitor all Internet and e-mail activity, it got judges’ backs up. The judges in Marion, Ind., threatened contempt for any “unauthorized” access by the commissioners. “We don’t have any problem with the commissioners creating an Internet usage and e-mail policy. That’s their responsibility to do that,” says Grant County Circuit Judge Thomas R. Hunt. “But they have no right to supervise the employees of the judicial branch of government.”
According to the report, Judge Hunt said one of the problems with signing the form would be that “it violates the separation of powers.”
In other words, the commissioners may be able to craft an e-mail policy applicable to all county employees, but only so long as they leave the judicial branch out of it.

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Indiana Government

Courts - More on what is a "debt relief agency" for purposes of the BAPCPA

Updating these two ILB entries from September on the 8th Circuit ruling on what constitutes a "debt relief agency," the just-released Jan. 2009 issue of the ABA Journal includes this article by David L. Hudson Jr. headed "A Debt-Defying Act: Courts say part of embattled bankruptcy law violates First Amendment." The article begins:

In these days of financial turmoil, bankruptcy lawyers seeking to advise clients on dealing with burdensome debt can take comfort: The first federal appeals court to rule on a controversial 2005 bankruptcy reform statute has shot down a provision that limits what lawyers may say.

In Milavetz v. U.S., a di­vided panel of the 8th U.S. Circuit Court of Appeals at St. Louis last September invalidated a section of the Bank­ruptcy Abuse Preven­tion and Con­sumer Protection Act that prohibited “debt relief agencies”—which include attorneys—from advising clients to “incur more debt in contemplation” of filing bankruptcy.

Judge Lavenski R. Smith called that part of section 526(a)(4) “unconstitutionally overbroad” and a violation of the First Amendment. The pro­vision “prevents attorneys from fulfilling their duty to cli­ents to give them appropriate and beneficial advice,” Smith wrote in his majority opinion.

“If you have financial troubles and are contemplating bankruptcy, your attorney can now provide financial planning advice to assist in avoiding bankruptcy or prevent recidivism in the bankruptcy system,” says Robert J. Milavetz, president of the Edina, Minn., law firm Milavetz, Gallop & Milavetz, which filed the suit.

The 9th U.S. Circuit Court of Appeals at San Fran­cisco is considering a similar case, and several federal bankruptcy courts also have ruled against the measure.

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

D&D Signature Homes, Inc. v. Mary Elcher, et al. (NFP) - "In summary, we conclude the designated evidence reveals that D&D knew of the defects in Eicher?s concrete work in the summer of 2003, thereby triggering the statute of limitation. D&D did not file its complaint against Eicher until March of 2006, nearly three years after the defects were discovered. Therefore, D&D?s complaint against Eicher asserting claims arising from Eicher?s defective work is time-barred by the applicable two-year statute of limitation. The trial court did not err in granting Eicher?s motion for summary judgment. Judgment affirmed. "

In the Termination of the Parent-Child Relationship of M.W., et al. (NFP) - "Derrick Wrightsman (“Father”) appeals the involuntary termination of his parental rights to his children and raises several issues on appeal. We find the following restated issue to be dispositive: whether the trial court’s finding that there is a reasonable probability the conditions which resulted in the children’s removal from Father’s care have not been remedied strictly complies with Indiana’s termination statute. Concluding that the trial court’s judgment terminating Father’s parental rights does not comply with Indiana Code § 31-35-2-4(b)(2)(B), we reverse and remand. "

NFP criminal opinions today (1):

Hubert R. Bryant v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues bankruptcy decsion today re means test

In Ross-Tousey and Tousey, Debtors v. Neary, US Bankruptcy Trustee (UST), a 27-page opinion out of Wisconsin, Judge Flaum writes:

In performing their means test, the debtors here claimed the Internal Revenue Service (“IRS”) Local Standard vehicle operating/public transportation allowance of $358 as well as the IRS Local Standard vehicle owner- ship allowance of $803 (for two vehicles). With these expenses subtracted from their CMI, the debtors’ means test resulted in a finding that they had no disposable income. The debtors thus claimed that the presumption of abuse did not arise in their case and that they should be able to discharge their debts under Chapter 7.

On October 30, 2006, the United States Trustee (“UST”) filed a motion to dismiss the debtors’ case for abuse under section 707(b). Originally, the UST filed the motion under 11 U.S.C. § 707(b)(3)(B), asserting that the debtors’ chapter 7 petition was abusive based upon the totality of the circumstances of the debtors’ financial situation. A few days later—after the deadline set by § 704(b)(2) for UST motions to dismiss had passed—the UST supplemented its October 30 motion to dismiss, asserting that the case also merited a presumption of abuse under section 707(b)(2) because the debtors should not have taken the $803 Local Standard vehicle ownership deduction. On December 14, 2006, the bankruptcy court denied the UST’s motion to dismiss, concluding that the totality of the circumstances did not establish abuse and that no presumption of abuse arose under section 707(b)(2) due to the vehicle ownership deduction. The bankruptcy court interpreted section 707(b)(2)(A)(ii)(I) to allow the debtors to take the vehicle ownership deduction even though the debtors had no monthly loans or leases on their vehicles.

The UST appealed and the district court reversed with regard to the section 707(b)(2) presumption of abuse, holding that the debtors could not claim the vehicle ownership deduction under section 707(b)(2)(A)(ii)(I) for vehicles the debtors owned outright. See Neary v. Ross-Tousey (In re Ross-Tousey), 368 B.R. 762, 768 (E.D. Wis. 2007). (The district court did not address the UST’s alterna-tive argument, made under section 707(b)(3)(B), that the totality of the debtors’ circumstances demonstrated abuse.) The district court therefore concluded that the presumption of abuse arose in the debtors’ case and remanded to the bankruptcy court for further proceedings to determine whether the debtors could rebut the presumption of abuse. Id. at 768-69.

The debtors appealed to this court. The UST moved to dismiss the appeal for lack of finality because the bank- ruptcy court had not yet determined whether the debtors had special circumstances sufficient to rebut the presump- tion. However, the debtors responded by stating that they had no special circumstances to raise on remand. Due to that concession, the UST agreed that this Court had jurisdiction in its reply brief. This Court denied the UST’s motion to dismiss the appeal on February 15, 2008. * * *

Permitting a debtor to take the deduction—even where that deduc- tion puts the debtor’s current monthly income below the presumptive abuse threshold—does not insulate his case from dismissal. Instead, it simply means that the debtor’s petition is not presumed abusive. See Fowler, 329 B.R. at 421. The UST can still request dismissal, as he has done in this case, under section 707(b)(3), either for bad faith or based on the totality of circumstances (which can take into consideration a debtor’s actual income and expenses). See Zaporski, 366 B.R. at 768.

For the reasons explained above, we hold that a debtor who owns his car free and clear may take the Local Standard transportation ownership deduction under the section 707(b)(2)(A)(ii)(I) means test. Accordingly, we REVERSE the district court and REMAND for further proceedings. We instruct the district court to consider the alterna- tive argument briefed below by the UST, that the totality of the circumstances of the debtors’ financial situation demonstrate abuse under section 707(b)(3)(B).

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer granted yesterday

The ILB has received notice that the case of Paul Rykard, Jr. v. State yesterday was granted transfer and remanded to Court of Appeals.

The docket shows that appellant's appeal was dismissed with prejudice by the Court of Appeals on 5/7/08, the petition for rehearing was denied 7/3/08, and the case was transferred to the Supreme Court 12/16/08.

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Indiana Transfer Lists

Ind. Courts - Court of Appeals law clerk receives "tomorrow's leaders" award

See Bryan Corbin's story today in the Evansville Courier & Press that reports: "Christina Ladan Clark, 26, received one of the 12 Governor's Awards for Tomorrow's Leaders."

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Indiana Courts

Ind. Courts - Delaware County's "Secret DTF deals now in open"

The third story in as many days this week in the Muncie Star-Press, aimed at giving an overview of the ongoing DTF investigation, stories about which have been a focus of the paper in the past months. Here are the Monday and Tuesday entries.

In today's story Joy Leiker reports in a story that begins:

MUNCIE -- Confidential agreements, never approved by a judge and negotiated only between the prosecutors office and those charged with a crime, once were the dirty little secrets of local drug arrests. But no longer.

Court hearings and records have revealed a system where Prosecutor Mark McKinney and other deputy prosecutors before him acted as attorney, judge and jury, and all the while profited from their actions.

McKinney, hired by former Prosecutor Rick Reed, said he has done nothing differently than his predecessor, a claim Reed denies.

And though Reed refused an invitation for an interview, his wife's best friend, Mayor Sharon McShurley, said she turned to Reed for advice early on as part of her own Muncie-Delaware County Drug Task Force investigation.

"At some point in time I specifically called Rick and asked, 'Hey, there's this confidential agreement and what does this mean?' and he knew nothing about it," the mayor said.

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Indiana Courts

Law - Vanderburgh County legal community stunned at death of attorney Cole Banks

Updating this ILB entry from yesterday, the Evansville Courier & Press has this lengthy story today. Some quotes:

Combining a love of politics, a passion for the law and a knack for explaining ideas clearly, Cole Banks made an unforgettable impression as a courtroom litigator and college professor in Evansville.

Banks, 61, a prominent defense lawyer and public defender, was found dead early Tuesday outside his Buena Vista Road home from a self-inflicted gunshot wound. Evansville police responded to a 911 hang-up at Banks' home at 2:56 a.m., and found his body.

Deputy Police Chief Joyce Molinet said Banks left a suicide note, detailed instructions for his arrangements, boxes and his will. Vanderburgh County Chief Deputy Coroner Annie Groves said Banks referred to ongoing health problems in one note.

Banks' death shocked attorneys and judges who worked with him in the Vanderburgh County courts and faculty who taught with him at the University of Southern Indiana, where he was an adjunct professor of political science.

"There will never be another Cole Banks — ever. This loss will be felt for years and years to come, not only in the courthouse, but in the community," said Donita Farr, Vanderburgh County's chief trial deputy prosecutor. "It feels as though there's a heavy blanket over everything; it's very somber and sad," she said of the mood at the Civic Center's courts wing. * * *

[W]ith all his clients, Banks was a zealous advocate who could explain complicated legal cases without jargon.

"He was a great student and teacher of the law. He was a fantastic lawyer, and he represented his clients without compromise," Vanderburgh Superior Court Judge Wayne Trockman said. * * *

Banks also offered his legal and political insights in frequent newspaper and television interviews, analyzing Supreme Court decisions and state elections. * * *

Banks left detailed instructions for how his ongoing clients' cases should be handled, O'Connor said. Clients should contact the Vanderburgh County public defender's office or the Evansville Bar Association for referral to new attorneys.

C & P reporter Bryan Corbin assembled a long side-bar to accompany today's story, quoting some of Banks' comments from past Courier & Press articles.

Posted by Marcia Oddi on Wednesday, December 17, 2008
Posted to Indiana Law

Tuesday, December 16, 2008

Ind. Decisions - "Court rules father must repay Medicaid for child expenses"

The Court of Appeals decision in the case of In Re: The Matter of the Paternity of D.J. , issued earlier today (see ILB summary here - 3rd case), is the subject of a brief story this afternoon on South Bend's WSBT:

The Indiana Court of Appeals on Tuesday ruled in a case out of St. Joseph County that a child’s biological father must reimburse Medicaid for a portion of expenses associated with the mother’s pregnancy and childbirth regardless of the age of the child.

The court of appeals instructed St. Joseph County Probate Court Judge Peter J. Nemeth to order a man identified in court papers only by his initials, J.M.M., to reimburse the state of Indiana for no less than 50 percent of the expenses associated with the birth of his child in 2001.

Nemeth had ruled in March that J.M.M. was not obligated to pay for Medicaid expenses related to his child’s birth because of the age of the child, who is 7 years old.

But the court of appeals disagreed, finding that Indiana law, in section 31-14-17-1, intended for such expenses to be reimbursed regardless of how much time had passed since the birth of the child. In other words, that the law imposed no time limitation on the recovery of birth-related expenses.

In the case of J.M.M., the court of appeals ruled he must reimburse the state of Indiana $2,204.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In J.C.C. v. State, an 8-page, 5-0 opinion, Justice Sullivan writes:

During a year’s incarceration at Boys’ School for an episode of child molesting offenses, J.C.C. successfully completed a sex offender treatment program. We hold that the court was required to evaluate whether J.C.C. was rehabilitated while in the treatment program before it could find by “clear and convincing evidence” that J.C.C. was “likely to repeat” a sex offense and order him to register as a sex offender. * * *

On appeal, J.C.C. raised two claims: first, that the State did not present clear and convincing evidence showing that he is likely to re-offend, and second, that the juvenile court abused its discretion when it denied his T.R. 60(B) motion. In an unpublished decision, a unanimous panel of the Court of Appeals affirmed the juvenile court’s decision. J.C.C. v. State, No. 49A02-0403-JV-266, slip. op., 878 N.E.2d 544 (Ind. Ct. App. December 28, 2007). J.C.C. then sought, and we granted, transfer. In re J.C.C., 891 N.E.2d 42 (Ind. 2008) (table). * * *

We find the evidence insufficient to conclude that J.C.C. is likely to repeat an act that would be a sex offense if committed by an adult. Our analysis is grounded in the specific provisions of the juvenile sex offender registry statute and the general purpose of the juvenile code. * * *

Given the overarching rehabilitative thrust of Indiana’s juvenile justice system, id., and the statute’s specific requirements that any finding of a juvenile’s likelihood to repeat must await discharge from secure detention, G.B., 709 N.E.2d at 353, and must be based on clear and convincing evidence, I.C. § 5-2-12-4(b)(3), we hold (as did the Court of Appeals in B.J.B., 805 N.E.2d at 874) that an evaluation of whether a juvenile has been rehabilitated while in detention is a prerequisite to finding clear and convincing evidence that the juvenile is likely to repeat. * * *

We reverse the order requiring J.C.C. to register as a sex offender. The opinion of the Court of Appeals is vacated except for that portion addressing J.C.C.’s T.R. 60(B) claim, which is summarily affirmed. App. R. 58(A)(2).

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Ind. Sup.Ct. Decisions

Environment - More on: IDEM dissolves office of enforcement

Updating this ILB entry from Sunday Dec. 14th, quoting Gitte Laasby's lengthy story in the Gary Post-Tribune that began:

The Indiana Department of Environmental Management is dissolving its Office of Enforcement -- the office that responds to environmental violations, assures polluters comply with their permits, and deters violations.

"The Office of Enforcement as a separate entity will no longer exist," IDEM spokeswoman Amber Finkelstein confirmed to the Post-Tribune.

IDEM is also modifying its compliance and enforcement policy, narrowing the definitions of what constitutes the most serious environmental violations to say they must cause actual harm to human health or threaten the environment. The new policy also gives managers more discretion over when companies will face prosecution and penalties.

The closure is already taking place. The policy has not yet gone through the official process.

Two additional items of interest at this point.

First, on Sunday the Post-Tribune also ran an editorial that accompanied its front-page story. The ILB overlooked it at the time. The editorial begins:

If you were waiting for further proof that Gov. Mitch Daniels is friendly to industry at the expense of the environment, you need look no further than the two most recent shocking developments.

The first is that the Indiana Department of Environmental Management is closing its office of enforcement.

The second is a new set of policies that narrows the definition of environmental harm -- and investigates only after damage can be proven.

IDEM officials assure citizens they have nothing to fear because enforcement is being handed over to the separate divisions that oversee land, air and water.

That, they assure us, will help them serve their clients better. The problem is that they see "clients" as those businesses seeking permits rather than Hoosiers who -- by law -- are guaranteed clean air and water.

But the more egregious act might be the rewriting of policy, which calls for actual harm.

Second, as the ILB noted at the end of its entry on Sunday:
The currently "pending" version [08-006-NPD -- Pending] states that it supersedes the policy titled "Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003."

But until then, the 2003 document governing environmental enforcement is still in effect. Where is it? It is not on the IDEM webpage listing nonrule policies.

I, for one, despite having some familiarity with IDEM enforcement, have never seen this 2003 document.

The first thing Monday morning (yesterday), I asked folks in IDEM external affairs office for a copy of the 2003 policy. They are attempting to locate it.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 today (and 18 NFP)

For publication opinions today (4):

In Coy L. Capps and Margaret M. Capps v. Jeffery A. Abbott and Teresa J. Abbott, a 10-page opinion, Judges Bradford writes:

Appellants-Defendants Coy L. Capps and Margaret M. Capps (“the Cappses”) appeal from the trial court’s order awarding Appellees-Plaintiffs Jeffrey A. Abbott and Teresa J. Abbott (“the Abbotts”) a small parcel of land by means of adverse possession and a prescriptive easement across the Cappses’ property. We affirm. * * *

In light of these facts, we conclude that the Abbotts’, as well as their predecessors-in- title’s, use of Walnut Street constituted an open and continuous use of another’s land with knowledge on the part of the owner for the required twenty years. We further conclude that because nothing in the record indicates that either the Abbotts or their predecessors-in-use had ever been granted permission to use Walnut Street, such use was in fact adverse to the Cappses and their predecessors-in-title. We therefore affirm the determination of the trial court on this ground.

Having concluded that the Abbotts have acquired title to the 0.021 acre parcel of land immediately south of the farm fence which was erected on the parties’ boundary line as determined by the 1990 survey, and that the Abbotts have acquired the right to use Walnut Street as a method of ingress and egress by means of a prescriptive easement, we affirm the judgment of the trial court.

Mark J. Houston v. State of Indiana - "Based upon the foregoing, we conclude that the traffic stop was proper and, therefore, the trial court did not err by admitting the evidence obtained as a result of the stop. Further, Ind. Code § 9-18-2-26 is not void for vagueness. "

In In Re: The Matter of the Paternity of D.J. , a 5-page opinion, Chief Judge Baker writes:

Must a trial court order a biological father to reimburse the State in an amount no less than 50% of the expenses associated with the mother’s pregnancy and childbirth that had been paid by Medicaid? The answer is yes.

Appellant-petitioner State of Indiana (the State) appeals the trial court’s determination that J.M.M., the biological father of D.J., was not obligated to reimburse Medicaid for any portion of mother’s pregnancy and childbirth expenses that it had paid. Specifically, the State argues that Indiana Code section 31-14-17-1 obligated the trial court to order J.M.M. to reimburse Medicaid for at least 50% of the reasonable and necessary expenses that were associated with the mother’s pregnancy and D.J.’s birth. Finding that the trial court erred, we reverse and remand with instructions that the trial court order J.M.M. to reimburse the State in an amount no less than 50% of the expenses that were associated with mother’s pregnancy and D.J.’s birth that Medicaid had paid.

In James and Ericka Sparks v. Barbara and Chester White , a 15-page opinion which includes two color photos at pp. 8 & 9, Judge Riley writes:
Appellants-Defendants, James and Erica Sparks (the Sparkses), appeal the trial court’s denial of their motion for summary judgment against Appellees-Plaintiffs, Chester and Barbara White (the Whites), on the Whites’ claim for negligence. We affirm.
The Sparkses present three issues for our review, which we restate as the following two: (1) Whether the Sparkses are entitled to summary judgment on the issue of duty; and (2) Whether the Sparkses are entitled to summary judgment on the issue of proximate cause. * * *

The Sparkses contend that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law as to the duty and proximate cause elements. We address each element in turn.

I. Duty * * * Though there is no evidence before us specifying the exact size of the Sparkses’ mailbox, the photos above depict the wreckage of a mailbox that was substantially larger than the size recommended by the American Association of State Highway Transportation Officials and the United States Postal Service. And while the Sparkses are correct that the mailbox “broke away,” the photos indicate that it did not do so without first standing its ground, resulting in serious damage to Barbara’s vehicle and injuries to Barbara. In short, while we cannot fault the Sparkses for setting their mailbox close to the road in accordance with postal service guidelines, a factual question remains as to whether their particular mailbox presented an unreasonable risk of harm to motorists.

We do not hold, as suggested by the Sparkses, that the above-quoted guidelines imposed upon the Sparkses a duty to install a mailbox of a certain size. However, those guidelines are probative evidence of what is reasonable in highway mailbox construction. Furthermore, we do not hold, to use the Sparkses’ words, “that bricks are not a suitable material for mailboxes.” (Appellants’ Br. p. 13). We simply hold, as we did in Ousley, that a factual question exists as to whether the Sparkses owed the Whites a duty to design their mailbox differently. See Ousley, 734 N.E.2d at 296. * * *

In sum, we conclude that there exist genuine issues of material fact that preclude the entry of summary judgment on the issue of duty. Therefore, we turn to the Sparkses’ arguments regarding proximate cause.

II. Proximate Cause. The Sparkses argue that, even if they owed the Whites a duty, and even if they breached that duty, they are entitled to summary judgment on the proximate cause element. * * *

The Sparkses emphasize the possibility that Barbara might have violated her own duty to maintain reasonable control over her vehicle. That is certainly possible; there is no evidence in the record on appeal that indicates why Barbara left the road. But that possibility merely reframes the question: should the Sparkses have foreseen that a driver on Voyles Road would lose control of his or her vehicle and strike the mailbox set three feet from the road? This is a question for the jury.

Finally, we note that, under Indiana’s comparative fault regime, even if the jury determines that the Sparkses should have foreseen the collision, the Whites will not recover any damages from the Sparkses if the jury also concludes that Barbara was more than fifty percent at fault for her and her husband’s injuries. See Ind. Code § 34-51-2-6. Judging by the facts before us, that is a real possibility. But, as our supreme court has noted, “The Comparative Fault Act entrusts the allocation of fault to the sound judgment of the fact-finder.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Again, summary judgment is rarely appropriate in negligence cases. Rhodes, 805 N.E.2d at 387. This is not one of those rare cases.

Conclusion. Based on the foregoing, we conclude that the trial court did not err in denying the Sparkses’ motion for summary judgment. Therefore, we remand this cause to the trial court for further proceedings. Affirmed.

NFP civil opinions today (3):

In the Matter of the Term. of the Parent-Child Rel. of A.C. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "On appeal, Mother claims that there is insufficient evidence supporting the juvenile court‟s judgment terminating her parental rights. Concluding that there is clear and convincing evidence supporting the juvenile court‟s judgment, we affirm. * * *

""We reverse a termination of parental rights “only upon a showing of 'clear error' – that which leaves us with a definite and firm conviction that a mistake has been made.” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly, 592 N.E.2d at 1235). We find no such error here. Moreover, we are unwilling to put A.C. on a shelf until Mother is capable of caring for her appropriately. The approximate two years she has already waited is long enough. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989) (stating that the Welfare Department does not have to rule out “any possibility” of change and concluding that approximately two years without improvement is “long enough”). Accordingly, the juvenile court's judgment is hereby affirmed."

Oscar Guillen, Sr. v. Lake County Clerk (NFP) - "Hence, the statutes are in accord with the trial court's conclusion that the matters asserted by Guillen should properly be addressed to the criminal court in which the charges had been filed. Therefore, we find no abuse of discretion by the trial court in denying Guillen's motion to correct error. "

Ameritech Publishing v. Counseling Center for Effective Living (NFP) - "Ameritech Publishing argues that the trial court should have granted summary judgment in its favor because the designated evidence established as a matter of law that Counseling Center failed to make payments that were due under a purported contract. Moreover, Ameritech Publishing argues that the designated evidence did not establish that it had waived its right to pursue the debt or that an accord and satisfaction of the amount due had occurred. Concluding that the trial court erred in granting summary judgment for Counseling Center because a genuine issue of material fact remains as to whether its account remains due and unpaid, we reverse and remand for trial. "

NFP criminal opinions today (15):

Jerry Brown v. State of Indiana (NFP)

Elbert M. Jones II v. State of Indiana (NFP)

Nafeesah Davis v. State of Indiana (NFP)

Steve N. Goodman v. State of Indiana (NFP)

Kourtney Cohen v. State of Indiana (NFP)

John Wright v. State of Indiana (NFP)

Grady T. Bobbitt, Jr. v. State of Indiana (NFP)

Danny W. Ramsey v. State of Indiana (NFP)

Nancy Woodard v. State of Indiana (NFP)

Gregory T. Hill v. State of Indiana (NFP)

Matthew Bruno v. State of Indiana (NFP)

Elmer D. Charles v. State of Indiana (NFP)

Brandon Lyons v. State of Indiana (NFP)

James F. Froman IV v. State of Indiana (NFP)

Terry L. Likens v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Cole Banks, Evansville attorney, found dead

From Evansville News 14, the just-posted story headllined "Prominent Evansville lawyer found dead" reported by Rachel Folz:

According to the Evansville Police affidavit, Cole Banks, 61, was found dead in his Buena Vista Road home just before 3:00 Tuesday morning. According to the police report, Banks left suicide notes. The coroner's office has not yet released a cause of death for Banks.
A longer story here in the Courier & Press that begins:
A prominent Evansville defense attorney was found dead outside his residence early this morning in an apparent suicide, authorities said.

Cole G. Banks, 61, who was also an adjunct professor at the University of Southern Indiana, was found dead about 3 a.m. on the steps to the basement in back of his North Side home. A revolver was recovered underneath of him, police said.

Evansville Police Department Deputy Chief Joyce Molinet called it a "clear-cut suicide" and said police had recovered notes that shed light on his motive. She declined to release information on it out of respect for Banks' family.

"But there was nothing criminal about it, nothing negative about anyone else at all," Molinet said. "It was a total personal reason."

Mr. Banks is referenced in this Nov. 23rd Courier & Press story about the Terre Haute mayor's race decision the ILB posted about earlier today. The post in fact references a Nov. 23rd ILB entry citing the story.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Indiana Law

Ind. Courts - More on "Veolia accused of failing to read meters regularly and overestimating usage"

Updating this ILB entry from April 24th, Jon Murray of the Indianapolis Star reports today under the headline "Veolia Water wants court to toss lawsuit accusing it of overbilling." Some quotes:

The private manager of the Indianapolis waterworks asked a judge Monday to throw out a lawsuit accusing it of overbilling.

Veolia Water Indianapolis has been fighting customers behind the lawsuit despite working quietly for months under the gaze of regulators to improve its billing accuracy.

Filed in April, the lawsuit in Marion Superior Court accused Veolia of failing to take required bimonthly meter readings, relying too often on inflated usage estimates during typically low-consumption periods.

In court Monday, the company's attorney, Robert D. MacGill, said Veolia's 2002 management agreement with the city's Department of Waterworks -- worth $33 million a year, plus incentives -- didn't allow third parties, including customers, to intervene. Veolia, a subsidiary of a French company, treats and distributes water and handles billing for the utility's more than 250,000 customers.

Arguing for the plaintiffs:
Peter S. Kovacs, the plaintiffs' attorney, said the contract makes Veolia accountable because it took over nearly all functions from the city.

"The customers have a direct connection to Veolia," said Kovacs, who has been contacted by more than 400 water customers since filing the suit. He hopes to win class-action status.

But first, the case must overcome Veolia's motion to dismiss, a common procedural step. Judge Gerald Zore said he likely would rule in about two weeks.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals nullifies 2007 mayoral election; Bennett, Burke both file appeals

Updating this lengthy list of ILB entries on the Terre Haute mayor's race dispute, Arthus Foulkes of the Terre Haute Tribune-Star has this story today. Some quotes:

The legal fight for control of Terre Haute’s City Hall is inching closer to a possible date with Indiana’s highest court.

On Friday, former Mayor Kevin Burke’s legal team formally asked the Indiana Supreme Court to hear the case, in which Burke is challenging last year’s election victory of Mayor Duke Bennett.

On Monday, Bennett’s legal team did the same, asking the state Supreme Court to overturn portions of a Nov. 13 Indiana Court of Appeals decision that stated Bennett had been ineligible to run for mayor while he was a candidate.

Because the appeals court decision effectively “vacated” the Terre Haute mayor’s office – and because both sides want an audience with the high court – the chances the Supreme Court will take the case are good, said Bryan Babb, Bennett’s attorney. “It’s almost a given,” he said.

Both sides have 23 days to respond to the legal documents just filed by the other side, attorneys for each side said. Burke said he hopes his team can respond as soon as Friday. “I want to file absolutely as soon as possible,” the former mayor said Monday.

Babb believes the Supreme Court may decide whether to take the case sometime in February or March.

Bennett’s team is asking the state Supreme Court to decide how broadly the state should apply the Hatch Act to Hoosier political candidates. Bennett’s legal brief filed Monday emphasizes that Bennett had only a very small connection to a federally funded Head Start program operated by his former employer, the Hamilton Center. A federal law known as the Little Hatch Act limits the political activity of the employees of some not-for-profit agencies that operate federal programs, such as Head Start. * * *

The Burke legal team, meanwhile, is asking the court to decide the constitutionality of an Indiana law that they say shows clearly that Bennett was not eligible to run for mayor for working at the Hamilton Center and shows that Burke should have been named the rightful winner of the election.

“We think that the proper remedy is that Mr. Burke be seated” as mayor, said Ed DeLaney, Burke’s attorney. “I mean, that’s what the statute says so it’s really just that simple,” he said. “We don’t think there is a constitutional problem.”

According to the Burke legal brief filed Friday, “One must presume that the [Indiana] election contest law, which specifically allow for disqualification on the basis of the Little Hatch Act … exists to be enforced.”

Here is the Nov. 13th ILB entry summarizing the Court of Appeals 2-1 opinion in the case of Kevin D. Burke v. Duke Bennett.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Attorney perks irk board member"

Updating this ILB entry from Dec. 11th, Charles M. Bartholomew of the Gary Post-Tribune reports today in this story:

PORTAGE -- The Portage Township School Board has directed Greg Sobkowski, its regular attorney, to draft separate letters to attorney Dave Dickson and his firm Friel and Friel that their flat-fee contracts expiring June 30 must be renegotiated for the coming school year.

Sobkowski reported to the board Monday night after examining the contracts at the request of Superintendent Michael Berta in the wake of last week's discussion meeting concerning Dickson's contract.

Board member Cheryl Oprisko had objected to Dickson's 2006 agreement, particularly his district-paid insurance, making him the school's legal representative in expulsion proceedings, and asked that his contract be terminated.

She refused board president Terry Hufford's suggestion that Dickson's services be paid for by the hour, instead of a fixed amount, saying, "We have to set a precedent."

Sobkowski said sending a letter of termination would not preclude negotiating new agreements. He said the current contracts will continue through June 30 unless the board and the attorneys agree to changes. * * *

Sobkowski said the existing contracts give the board until Dec. 31 to notify the parties of intent to change or terminate the contracts, which would renew automatically July 1 without any board action.

He countered Oprisko's contention that Dickson was not a contractor hired to perform services by saying the school district had treated him as a part of the administrative staff by withholding taxes on his compensation and issued him W-2 forms instead of 1099's.

"I've seen nothing to indicate his (Dickson's) hiring was illegal," Sobkowski said.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Indiana Government

Ind. Courts - More on Muncie Mayor McShurley's complaint to the state court disciplinary commission

Updating yesterday's ILB entry, quoting from a "don't miss" story yesterday in the Muncie Star-Press reported by Joy Leiker, headed "Who are the players in the DTF controversy?", today Leiker has a second story on the investigations, headed "McKinney says mayor's complaint 'should have remained confidential'". Some quotes:

Of the many reasons Delaware County Prosecutor Mark McKinney doesn't like Mayor Sharon McShurley these days, one might rise above all the others.

It's not just that she filed a complaint against him with the Indiana Supreme Court Disciplinary Commission. Instead, it's the fact she made her report public by providing a copy of it to The Star Press.

"Those things are supposed to be confidential," McKinney said. "It should have remained confidential and shame on the mayor for handing it over to the press to begin with.

"But I intend to follow the rules," he added after repeatedly denying the newspaper's requests for a copy of his response to her complaint.

The disciplinary commission largely operates behind closed doors. Complaints against an attorney usually only become public if the commission or its executive secretary determine there's some merit to the allegations, and if the alleged misconduct would warrant disciplinary action.

That's all still unknown in the McKinney case.

The fact that McKinney's case wasn't dismissed immediately does propel it past most of the other complaints filed in the state. According to statistics maintained by the disciplinary commission, the majority of complaints -- around 60 percent in recent years -- are dismissed on their face.

McKinney maintains the mayor's complaint has no merit. * * *

For her part, the mayor said she made her complaint public so taxpayers would know their concerns about the DTF had been heard. Not quite three months earlier the city's long-time DTF officers were pulled from the force and reassigned.

"We've received I can't tell you how many phone calls in this office about the DTF," McShurley said. "I thought it would help public perception to say someone's at least checking into what they think is going wrong."

What's questioned is how the DTF seized money and property during drug arrests, from drug dealers and others, and then the prosecutor's office used confidential agreements to strike deals with those same defendants. Many never were charged with a crime, but the money from their pockets, and sometimes their cars, guns and household furnishings became police property.

As with yesterday's story, read the whole thing.

And see the side-bar, if you are unfamiliar with the Indiana Supreme Court Disciplinary Commission process. Note this paragraph:

If there is evidence of misconduct that would warrant disciplinary action, the commission's executive secretary files a complaint with the Clerk of the Supreme Court, and that's when the complaint finally becomes public.
As I understand it, once that Commission complaint (rather than the initial public complaint) is filed, a notation is added to the attorney's name on the Roll of Attorneys, indicating "Pending Discipline," along with this information:
A number appearing here indicates the case number of an on-going professional discipline case against this lawyer. The fact that there is an on-going case means that it is alleged that the lawyer committed misconduct, but there has been no decision finding those allegations to be true. By clicking on the case number, you will see a chronological listing of all of the legal filings in that case. A copy of any listed filing is available for a fee by contacting the Roll of Attorneys Administrator at (317) 232-5861.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Courts in general

Ind. Gov.t - More on: Cheryl Musgrave resigns Indiana Department of Local Government Finance position

Updating this ILB entry from Dec. 13th, here are three stories today on her successor.

Bryan Corbin of the Evansville Courier & Press reports:

INDIANAPOLIS — The person who will succeed Cheryl Musgrave as the state's property tax czar is a former Air Force JAG lawyer who helped draft Indiana's new property tax relief law.

Gov. Mitch Daniels has named Tim Rushenberg as the new commissioner of the Indiana Department of Local Government Finance, succeeding Musgrave, who resigned Friday. As department commissioner — a job unofficially called the property tax czar — Rushenberg will be the state's final authority on local government school budgets, spending and property taxes. * * *

Musgrave, an Evansville resident and former Vanderburgh County commissioner and assessor, was appointed by Daniels at the peak of the property tax crisis in July 2007. She ordered new reassessments in numerous counties where assessments had been flawed in order to correct disparities in property taxes.

Citing a desire to return to Evansville after nearly a year and a half in Indianapolis, Musgrave announced her resignation Friday.

"Anyone who takes that job has my greatest respect, because it's a no-win job," said state Sen. Lindel Hume, D-Princeton. "In every case that I've dealt with (Musgrave), she's been extremely helpful. I think they were doing about as good a job as you could expect."

As the state official who could summarily reject budget requests of municipalities and schools, Musgrave had her share of harsh critics among local government officials. Rushenberg "is going to inherit a tough job," Kenley predicted. "A lot of local government units were reluctant to get on board to make changes to run the property tax system the right way. ... It's just been a thankless job to force change in a system that's 150 years old."

Rushenberg, 33, acknowledges that his promotion to property tax czar could mean he, too, will face the ire of local officials. "Of course, anybody who enters public life expects a certain level of scrutiny. I expect that," he said.

Patrick Guinane of the NWI Times has a report here; Niki Kelly of the Fort Wayne Journal Gazette has this story.

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Indiana Government

Courts - More on: Bankruptcy filings up over last year

Updating the ILB entry from yesterday afternoon, Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:

Bankruptcy filings nationally increased by more than 30 percent in the past year, and rates in Kentucky and Indiana were among the highest in the country.

Medical costs, foreclosures, rising unemployment and the loss of high-paying manufacturing jobs are to blame for the climbing numbers locally and nationally, economists and bankruptcy attorneys said. * * *

Nationally, bankruptcy filings totaled more than one million for the 12 months ending Sept. 30. That's nearly 3.4 filings per 1,000 residents and compares to just over 800,000 filings in fiscal year 2007, according to data released yesterday by the Administrative Office of the U.S. Courts.

Indiana ranked fifth in the country, with nearly 5.9 filings per 1,000 residents. That's the 12th straight year Indiana has been among the Top 10 in per-capita filings.

Kentucky ranked seventh per capita, with nearly 4.8 filings per 1,000 residents -- worse than its rating as ninth in 2007.

Gary Baxter, an economist with Baxter Capital Management in Indianapolis, said Indiana has traditionally had higher foreclosure and bankruptcy rates in part because the state has higher homeownership numbers. That includes Hoosiers moving from renting into homes they couldn't afford, a phenomenon that increased as banks and mortgage companies loosened their loan standards.

Now, with companies cutting back on jobs and overtime, many families can no longer afford to pay their bills or mortgages, he said. * * *

Lloyd Koehler, a bankruptcy attorney in New Albany, Ind., said his business volume has increased significantly. But the prime reason for bankruptcies -- medical bills -- hasn't changed much in recent years, he said.

"You can have a job but a health problem could cause you not to be able to be employed," Koehler said. "Then you're faced with uninsured medical claims plus a loss of income. It's difficult to stabilize your overall finances." * * *

Shannon Fauver, a bankruptcy attorney in Louisville, said many of her clients are couples or families that built their lifestyles based on income from two jobs.

"People were doing fine until one of them got laid off and then they can't make it anymore," Fauver said.

Her practice has focused largely on middle- and lower-income workers, people who are paid largely by the hour. But more recently, she's seen higher income individuals, including doctors and lawyers, seeking bankruptcy protection.

"Most people think that bankruptcy happens when someone is overextended because of credit card bills," she said. "But most of my clients come in because of medical bills or the loss of a job. They may have had a variable-rate mortgage where the rate picked up and they can't afford it."

Posted by Marcia Oddi on Tuesday, December 16, 2008
Posted to Courts in general

Monday, December 15, 2008

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

This ILB entry from Oct. 24th quotes a Harold J. Adams story in the Louisville Courier Journal that begins:

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.

Today the Supreme Court has posted its one-page Order, filed Dec. 11th, suspending Respondent pendente lite from the practice of law in this State.

Here is a list of earlier, related ILB entries.

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Indiana Courts

Courts - Bankruptcy filings up over last year

The U.S. Courts has issued its quarterly news release on bankruptcy filings. Some quotes:

Dec 15, 2008 — Bankruptcy cases filed in federal courts totaled 1,042,993 for the 12-month period ending September 30, 2008, up more than 30 percent when compared to the 801,269 filings in Fiscal Year 2007, according to statistics released today by the Administrative Office of the U.S. Courts. The September 2008 filings are the highest of any 12-month period since the 2006 implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, when there were 1,112,542 filings in the 12-month period ending September 30, 2006.
ILB: Non-business bankruptcy filings, although up over last year, do not approach the pre-BAPCPA of 2005 figures. But note in this Table that the business bankruptcies do.
Business and Non-Business Filings
Years Ended September 30, 2004-2008

FY

Business

Non-Business

TOTAL

2008

38,651

1,004,342

1,042,993

2007

25,925

775,344

801,269

2006

27,333

1,085,209

1,112,542

2005

34,222

1,748,421

1,782,643

2004

34,817

1,584,170

1,618,987

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Courts in general

Ind. Courts - "Who are the players in the DTF controversy?"

Finally, a crib sheet to the players in the Muncie Drug Task Force investigations, supplementing the ILB's long list of entries.

Joy Leiker reports today in the Muncie Star-Press in a lengthy, "don't miss" story that begins:

Some of Muncie's most divisive and colorful characters are fighting for their professional lives in separate-but-not-unrelated investigations.

Lingering in the background are their allies and enemies: Former attorneys, judges, business partners and political adversaries -- many of whom have had their own turn at power over the years.

All know how to work the system. None are afraid to play the high-stakes game of Muncie politics.

At the center of this storm is Delaware County Prosecutor Mark McKinney. He's indisputably fighting to save his career, waiting on the Indiana Supreme Court Disciplinary Commission and a special prosecutor to determine whether he committed misconduct or a crime or both. At the very worst, he could lose his license to practice law and also face criminal charges.

But McKinney, a Democrat, is doing nothing this year that he hasn't done ever since he joined the prosecutor's office as a deputy in 1995. And he maintains his innocence.

What is different is he's working as the county prosecutor in a city under a new mayor's control. While former Republican Mayor Dan Canan might have looked the other way, Republican Mayor Sharon McShurley isn't.

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Indiana Courts

Ind. Law - Theft can lead to serious consequences

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on the crime of theft. A few quotes form the story:

[P]olice and prosecutors want to remind people that they could be taken to jail on a felony theft charge for swiping a single item.

Porter County Prosecutor Brian Gensel said police and prosecutors have the discretion to opt for either a felony theft charge or a misdemeanor conversion charge. But a check of police reports shows most people are slapped with the felony, and that charge is punishable by up to three years in jail.

Porter County Sheriff David Lain said stealing increases both before and after Christmas. Before Christmas, shoplifting increases simply because there are more people in the stores. There are also more wallets snatched and presents removed from cars because thieves see more opportunities, Lain said.

Then, after Christmas, thieves steal the new GPS devices and other electronics people received for Christmas.

In addition to thefts increasing, police sometimes see a rise in burglaries and robberies during the holidays. Burglary is the taking of property from a home or building. Robbery is the taking of property directly from a person.

While theft is punishable by up to three years behind bars, home burglary and robbery committed with a weapon or resulting in injury carries a maximum penalty of 20 years in prison.

At this time of year, police put extra emphasis on patrolling shopping districts and neighborhoods. And stores increase their security.

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Indiana Law

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

For publication opinions today (2):

In In the Matter of the Properties Sold for Delinquent Taxes; Kimberly Neace v. Vinod C. Gupta, an 11-page opinion, Judge Vaidik writes:

Kimberly Neace, whose property was bought by Vinod Gupta at a tax sale, appeals the trial court’s decision to dismiss her petition to set aside the tax deed issued to Gupta for insufficient notice. Neace argues that the trial court erroneously determined she did not file her petition within a reasonable time and that the trial court erroneously applied Trial Rule 12(B)(6) to her petition, which was a motion for relief from a judgment pursuant to Trial Rule 60(B). Finding that the trial court erroneously dismissed Neace’s petition, which was filed within a reasonable time and sufficient to state a claim upon which relief may be granted, we reverse and remand for the evidentiary hearing provided for by Trial Rule 60(D). * * *

If Neace’s allegations in her petition that the auditor and Gupta did not properly send notices to her address of record and the notices were returned as undeliverable are true, then the tax deed should be set aside as void under Trial Rule 60(B)(6) because the auditor is required to be cognizant of its records and send notice to the address of record, and notice must be reasonably calculated to apprise interested parties of the pendency of the action before taking steps that affect a property interest. McBain v. Hamilton County, 744 N.E.2d 984, 989 (Ind. Ct. App. 2001), reh’g denied.

Because her claim is procedurally sound and her allegations, if true, would entitle her to the relief she requests, the trial court erroneously dismissed Neace’s petition under Trial Rule 12(B)(6). Because Neace’s petition sufficiently states a claim for relief, we reverse and remand for the trial court to hold the evidentiary hearing provided for by Trial Rule 60(D).

In a related case, Kenneth Edwards v. Kimberly Neace , Judge Vaidik writes:
Kenneth Edwards appeals the trial court’s decision to deny his motion to correct errors after the trial court set aside a tax deed issued to Edwards, who had purchased at tax sale property belonging to Kimberly Neace. Edwards argues that because Neace filed her petition to set aside the tax deed claiming insufficient notice more than sixty days after the tax deed was issued, the trial court lacked subject matter jurisdiction. Finding that the trial court did have subject matter jurisdiction and that Edwards waived his timeliness argument, and that, waiver notwithstanding, the trial court properly set aside the tax deed, we affirm the decision of the trial court. * * *

Thus, we find that Neace filed her petition within a reasonable time and demonstrated that the judgment ordering the tax deed was void for constitutionally insufficient notice. The trial court did not abuse its discretion by setting aside the tax deed.

NFP civil opinions today (1):

Janet Kay Lewis v. Estate of Arthur Kenworthy, Lyle Kenworthy, Personal Representative (NFP) - "Janet Kay Lewis appeals the trial court’s grant of summary judgment in favor of the Estate of Arthur Kenworthy (“the Estate”) finding Janet did not contest the will within the statutory period allotted by Indiana Code section 29-1-7-17. On appeal, Janet raises two issues, which we consolidate and restate as whether the trial court erred when it granted summary judgment in favor of the Estate. Concluding Janet failed to file an action to contest the will within the statutory period and has not presented evidence of fraud that would allow her to file an untimely action, we affirm."

NFP criminal opinions today (6):

Shantel Martin v. State of Indiana (NFP)

Vernon Bateman v. State of Indiana (NFP)

Nathaniel Lee Baston v. State of Indiana (NFP)

Kelly Saucedo v. State of Indiana (NFP)

Vance Jones v. State of Indiana (NFP)

Charles Broadus v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Governor appoints Carmel City Court judge

A brief press release today from the Governor:

Governor Mitch Daniels today announced the appointment of Brian G. Poindexter as judge of the Carmel City Court. He succeeds Judge Paul Felix, who was elected judge of the Hamilton Circuit Court.

Poindexter, of Carmel, currently serves in the Marion County Prosecutor’s Office supervising the Major Felony Division. He previously practiced law at Harrison & Moberly, LLP. Poindexter is a member of the Indiana State Bar Association and a member of the board of directors of Youth As Resources of Central Indiana.

He received his undergraduate degree from Ball State University and law degree from Indiana University School of Law. His appointment will be effective January 1.

A story posted by Indianapolis Star adds that Poindexter is 46 and "The judge’s biweekly salary in 2009 will total $106,626 for the year, according to the Carmel clerk-treasurer’s office."

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Indiana Courts

Ind. Decisions - One from 7th Circuit today, and a withdrawal

In U.S. v. James Ray (ND Ind., CJ Miller) Jackson, an 8-page opinion, Judge Coffey writes:

After James Jackson violated the terms of his supervised release resulting from two drunk driving arrests, the district court proceeded to revoke his release status and ordered him returned to prison. Jackson challenges the length of the prison term imposed after revocation of supervised release, arguing that the district court erred in determining that a felony DWI is a crime of violence. See U.S.S.G. § 7B1.1(a). Because the district court made clear that it would have imposed the same prison term upon him regardless of whether his DWI was classified as a crime of violence or not, we affirm.
Also today, re its opinion in Lloyd v. Swifty Transportation, issued Friday (see ILB entry here), the panel issues this one-page, one-line ruling:
The opinion of this court issued on December 12, 2008, is WITHDRAWN and the judgment is VACATED. This matter remains under advisement.

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending Dec. 12, 2008

Here is the transfer list for the week ending Dec. 12, 2008. It is four pages long.

Six transfers were granted last week, including two with opinions (see here for opinions); and one, Raphael I. Miles v. State of Indiana, where the transfer was granted and the case remanded to the COA with no opinion. The remaining three are described in this ILB entry from Friday.

Over 4.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Indiana Transfer Lists

Ind. Courts - Yet more on Rockies Express Pipeline suing Indiana counties

Updating this ILB entry from Friday, Pam Tharp of the Richmond Palladium-Item reports today:

BROOKVILLE, Ind. -- Franklin County's fight to protect the drinking water supply of 40,000 southern Indiana residents has moved to federal court.

Attorneys for Rockies Express Pipeline LLC filed a lawsuit last week in U.S. District Court against the Indiana Natural Resources Commission, asking for a temporary restraining order and injunctions to stop a review of its pipeline project in Franklin County by the commission. A hearing date has not been set.

The company, known as "REX," is building a 638-mile pipeline from Missouri to Ohio through nine Indiana counties. This final leg of the line completes a 1,600-mile pipeline that begins in Colorado.

Line construction is under way in Franklin County, with plans to install the line 40 feet below the Whitewater River about two miles south of Brookville.

REX received approval in January from the Indiana Department of Natural Resources to place the gas line in a Franklin County floodway. The Franklin County Drainage Board, Hoosier Hills Water District, Franklin County Water Association and Tri-Township Water District petitioned the Natural Resources Commission for an administrative review of DNR's decision, asking that it be reversed.

Franklin County Surveyor Joe Gillespie said the pipeline would cross the river within the water companies' wellhead protection area. Wellhead protection is overseen by the Indiana Department of Environmental Management and required by the Safe Drinking Water Act and a state rule.

Water companies are supposed to protect wellheads from contamination within a two-mile radius of their wells, Gillespie said.

"I think (REX) has crossed a lot of rivers like this one, but not in a wellhead protection area," Gillespie said. "It seemed odd the water companies are required to protect that area, yet a gas pipeline can go right through it. If the water supply is contaminated, what would we do?"

Here is a long list of earlier ILB entries on the REX pipeline project and the lawsuits as it has moved across the state. As noted in this Sept. 14th entry:
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).

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Dec. 18th:

1:30 PM - Maggie Bush v. State Farm Mut. Auto. Ins. Co. - The St. Joseph Circuit Court entered summary judgment in favor State Farm after ruling that its automobile insurance policy with Bush and her husband does not provide them uninsured motorist benefits after their adult son, who was not insured under the policy, was killed by a negligent uninsured motorist. The Court of Appeals reversed, concluding that State Farm's policy is inconsistent with the uninsured motorist statute. Bush v. State Farm. Mut. Auto. Ins. Co., 882 N.E.2d 821 (Ind. Ct. App. 3/20/2008), vacated. (See the ILB summary from March 20th - 13th case) The Supreme Court has granted a petition to transfer and assumed jurisdiction over the appeal. Attorney for Appellants: Edmond W. Foley , South Bend, IN. Attorneys for Appellee: Michael P. Blaize , Crown Point, IN. Karl L. Mulvaney and Nana Quay-Smith, Indianapolis, IN. For Amici Curiae, Insurance Institute of Indiana, Inc., and National Association of Mutual Insurance Companies: John C. Trimble and Richard K. Shoultz, Indianapolis, IN .

2:15 PM - Byron Breaston v. State of Indiana - A jury determined Breaston to be an habitual offender. The Elkhart Superior Court imposed an habitual offender enhancement to be served consecutively to an unrelated prior sentence which also included an habitual offender enhancement. The Court of Appeals affirmed in Breaston v. State, 893N.E.2d 6 (Ind. Ct. App. 8/272008), vacated. (Here is the ILB summary of the Aug. 27th COA opinion - 4th case.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Appellant: , Joseph M. Cleary, Indianapolis, IN. Attorney for State: Ian McLean, Indianapolis, IN.

Webcasts will be available here.


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

This Tuesday, Dec. 16th:

10:00 AM - Lyn Leone, et al vs. Commissioner of the Bureau of Motor Vehicles - Appellants-Plaintiffs appeal the trial court's Findings of Fact, Conclusions of Law and Order denying their Motion for Preliminary Injunction. The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration. The Scheduled Panel Members are Judges Riley, Bailey and Bradford.[Where: Indiana Supreme Court Courtroom]

11:00 AM - Savannah Linley Ann Nelson Ramirez, An Individual Under The Child Wrongful Death Act By Her Father, Stephen Ramirez vs. James A. Wilson and Suzy-Q Trucking, LLC. - Appellant-Plaintiff appeals the trial court's order granting partial summary judgment in favor of Appellees'Defendants' for the alleged wrongful death of S.L.A.N.R. Specifically, the Appellant raises the issues:

1. Whether the trial court erred in holding that I.C. 34-23-21 excludes as an "individual" a fully viable and developed, capable of independent life outside the womb, yet unborn child, is recoverable under the wrongful death statute;

2. Whether the trial erred in not holding that a fully viable and developed, capable of independent life outside the womb, yet unborn child receive inconsistent and disparate treatment under Indiana Civil and Criminal Law in violation of the Indiana Constitution; and

3. Whether the trial court erred in not holding that the fathers of fully viable and developed, capable of independent life outside the womb, yet unborn child are treated differently than mothers in civil negligence actions contrary to Article 1, Sections 12 and 23 of the Indiana Constitution.

The Scheduled Panel Members are Judges Riley, Bailey and Bradford. [Where: Indiana Supreme Court Courtroom]

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

This Tuesday, Dec. 16th:

1:30 PM - Lew Wood, individually and as Legal Guardian of M.W., vs. Leigh Walden and Sherry Shively - Appeal involves substantial arguments involving a portion of the Indiana Punitive Damage Statute under the Privileges and Immunities, Open Courts and Special Legislation clauses of the Indiana Constitution. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, December 15, 2008
Posted to Upcoming Oral Arguments

Sunday, December 14, 2008

Law - Law prof gives Illinois AG's brief a "C-"

PEOPLE OF THE STATE OF ILLINOIS V. ROD BLAGOJEVICH, GOVERNOR OF ILLINOIS

Illinois Attorney General Lisa Madigan has posted online The People's filings to the Illinois Supreme Court in the effort to remove the Illinois Governor. Access them here.

William A. Jacobson, Associate Clinical Professor of Law, Cornell Law School, has reviewed the arguments and given them a "C-'. Here is a quote from his blog entry:

The constitutional provision at issue is Article V, Section VI(b) of the Illinois Constitution, which provides as follows:
If the Governor is unable to serve because of death,conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.
The Illinois Attorney General has taken what she acknowledges to be an unprecedented step in asking the Illinois Supreme Court to declare a sitting Governor "unable to serve" because of a non-physical "disability." That "disability" according to the AG is (a) the inability of the Governor to put the interests of the State ahead of his own political interests; (b) accusations of criminal and unethical behavior which have caused other politicians to call on him to resign; (c) operational issues regarding state government caused by the foregoing. This argument is extraordinarily weak, and for grading purposes, is not well presented.

Posted by Marcia Oddi on Sunday, December 14, 2008
Posted to General Law Related

Ind. Law - "Kentucky, Indiana ponder teen-driver cell-phone laws"

Lesley Stedman Weidenbener has this story today in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS – Floyd Central (Ind.) High School senior Mitch Moutoux remembers the text message telling him a girl he knew was pregnant. It came as he was driving his maroon Chevy Silverado, but he looked down to read it anyway -- and acknowledges now that cell phones "can be distracting."

"My buddy grabbed the wheel for me," said Mitch, of Georgetown, Ind., recalling that text. "It was a pretty surprising message."

Mitch, who just turned 18, is not alone among teens who say they regularly use their cell phones while on the road.

Last year, a survey by AAA and Seventeen magazine reported that nearly a third of 16- and 17-year olds admit talking on the phone while driving. Nearly one in four acknowledge texting.

A study released this year by the Erie Insurance Co. found evidence the numbers are even higher. Teens said more than half their friends sent text messages while driving and more than three-quarters talked on the phone.

It's a practice some Kentucky and Indiana lawmakers want to stop.

In Indiana, Sen. Travis Holdman, R-Markle, plans to introduce a bill next year that would strengthen the state's graduated driver's license law and add a section prohibiting cell-phone use by minors while driving. * * *

Motor vehicle crashes are the leading killer of young people, claiming more than 6,000 15- to 20-year-olds each year, according to AAA. Many of those crashes are caused by inattention and distractions, including cell-phone use, officials say.

Seventeen states prohibit young drivers from calling and texting while they're on the road, even if they're using a hands-free device such as Bluetooth. In some states, the law refers to probationary drivers only. In others, it applies to anyone younger than 18.

Five other states plus the District of Columbia ban all drivers from using hand-held phones, a proposal that has failed in both Kentucky and Indiana.

Indiana Rep. Peggy Welch, D-Bloomington, said she would support a broader ban and thinks her constituents would, too.

"I have my booth at the county fair, and one of the major issues I hear every year is people asking, 'When are you going to ban the use of cell phones for driving?' " Welch said. "People have very strong feelings about it."

But lawmakers have a tough time restricting the actions of adults, she said.

"So, you start somewhere. And if this is where we need to start, we will," said Welch, who hopes to be a co-sponsor of Holdman's bill if it passes the Senate. "There's lots of anecdotal stories that if someone's distracted they don't drive as well."

Posted by Marcia Oddi on Sunday, December 14, 2008
Posted to Indiana Law

Environment. - IDEM dissolves office of enforcement

So reports Gitte Laasby this morning in the Gary Post-Tribune. From the story:

The Indiana Department of Environmental Management is dissolving its Office of Enforcement -- the office that responds to environmental violations, assures polluters comply with their permits, and deters violations.

"The Office of Enforcement as a separate entity will no longer exist," IDEM spokeswoman Amber Finkelstein confirmed to the Post-Tribune.

IDEM is also modifying its compliance and enforcement policy, narrowing the definitions of what constitutes the most serious environmental violations to say they must cause actual harm to human health or threaten the environment. The new policy also gives managers more discretion over when companies will face prosecution and penalties.

The closure is already taking place. The policy has not yet gone through the official process.

More from the story:
Environmentalists are dumbfounded. They say the changes undermine IDEM's purpose and endangers human health and the environment because the agency will be reacting to complaints by the public after damage is done rather than being proactive and precautionary.

Finkelstein said IDEM is eliminating the Office of Enforcement to improve customer service and allow better collaboration between employees. She said no staff cuts were made as a result.

"The Office of Enforcement is being reorganized to enhance customer service," she said. "What that means is that, with the enforcement backlog complete, the various sections of enforcement are being moved to the program areas. The Office of Enforcement is divided into a water, air and land area. Those separate sections are going to be moved into the program areas. The physical proximity will allow inspectors and enforcement staff to work more closely together."

Environmentalists don't see it that way.

"Eliminating the Office of Enforcement, it seems laughable," said Tom Anderson, executive director of Save the Dunes. "Their primary mission is to protect the public health of the citizens of Indiana. We understand how you want to get somebody into compliance but without enforcement, it's just like speed limits. More opportunities for violations."

The story goes on to describe the new enforcement policy:
The new policy describes the most serious class of violations, called Class 1, as preventable. But unlike the old policy from 2003, the new one specifies that the violations must "result in actual threat to human health or safety or... in a serious actual impact to the environment" or "a significant threat to human health or the environment."

Anderson questioned whether federal law allows IDEM to add that qualification.

"Sounds like it's an attempt to weaken the federal regulation that already exists," he said. "There's some sort of burden to show harm, which isn't what the federal Clean Water Act or Clean Air Act provide the protection for ... let's say you're discharging PCBs, at what point will you show the harm? Maybe 10-15 years from now when they contaminate fish."

Kim Ferraro, a Valparaiso attorney for the Legal Environmental Aid Foundation, agreed.

"To prove environmental harm is very difficult," she said. "You can always say, 'There's no proof there's any harm." * * *

The new policy, revised Oct. 31, also makes consequences of violations more discretionary. The old policy said the most egregious violations were immediately referred to the Office of Enforcement. The new policy asks compliance staff to submit a report to the assistant commissioner who reviews it for referral for further enforcement.

"As far as the internal policy saying, 'This is how we're going to guide ourselves, it clearly is a relaxation of what industry has to do to get their attention in the first place. Even if a company did harm the environment, that doesn't mean IDEM has to do anything," Ferraro said. "We shouldn't have to be waiting till actual harm is done for the agency in charge to have to step up to the plate."

But, the story continues, the new policy, revised Oct. 31, has yet to take effect because "the new policy [has not yet been] revised to reflect the changes in the Office of Enforcement." This is somewhat confusing to the ILB, as will be discussed at the end of this entry. Today's story continues:
The old policy, written in 2003, contained 12 pages of examples of violations in different classes. The new policy has no examples.

The new policy also states that the top managers including the commissioner can authorize compliance staff to deviate from the policy on a case-by-case basis.

The policy adds, "Whenever appropriate, the Compliance Manager shall seek to issue to a Regulated Entity the most informal enforcement action available in an effort to promote the expeditious return to compliance by that Regulated Entity."

Environmentalists said cooperation with facilities to get them back into compliance is a good intention, but that the purpose of penalties is to prevent facilities from violating in the first place.

"The bigger picture here is the undermining of the agency's purpose," Ferraro said. "IDEM is not about serving the public trust and protecting the environment. IDEM is more about making life easier for industry."

Environmentalists also ex-pressed concerns that transferring enforcement staff to program areas will dissolve the enforcement culture and replace it with the "client-serving" culture of permitting offices.

The story concludes:
To go into effect, the policy must be available for public inspection for 45 days. The document is available on IDEM's Web site, but the official public review period won't happen until the new policy is revised to reflect the changes in the Office of Enforcement, IDEM's Finkelstein said.

The policy has to be presented to the state's Air Pollution Control Board, the Water Pollution Control Board, the Solid Waste Board and the Financial Assurance Board, but board approval is not required. The policy becomes effective 30 days after presentation to the last board and will be published in the Indiana Register.

My thoughts. Okay, apparently there are (or are soon to be) three different versions of this policy:

The pending version, the one that is available from the IDEM website is:

08-006-NPD -- Pending
SUPERSEDES: Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003
ORIGINALLY EFFECTIVE: February 5, 2003
RENEWED/REVISED: October 31, 2008
The not-yet drafted version. According to today's story, this "pending" version is to be revised to include the abolition of the Office of Enforcement. Then it must be made available for public inspection for 45 days, and then presented to (but not approved by) the various environmental boards. (The procedure for its adoption is controlled by statute, IC 13-14-1-11.5.)

The version currently in effect. The currently "pending" version states that it supersedes the policy titled "Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003."

But until then, the 2003 document governing environmental enforcement is still in effect. Where is it? It is not on the IDEM webpage listing nonrule policies.

I, for one, despite having some familiarity with IDEM enforcement, have never seen this 2003 document.

Note also that, as reported at the beginning of Ms. Laasby's story today, "The closure (of the Enforcement office) is already taking place." However, it will be a number of months yet until the nonrule policy document is legally finalized.

Posted by Marcia Oddi on Sunday, December 14, 2008
Posted to Environment | Indiana Government

Saturday, December 13, 2008

Ind. Courts - Legislator / attorney wants trial postponed

Deborah Sederberg reported yesterday in the Michigan City Post-Dispatch:

MICHIGAN CITY - The state legislature trumps even a murder trial, East Chicago attorney Lonnie M. Randolph says.

Randolph, who represents the Second District of the Indiana Senate in Lake County, is attorney for Anthony A. Anderson. Anderson is charged with shooting to death Terry Moore when both were just 17 in the summer of 2004 in the 1100 block of East Michigan Boulevard in what Police Chief Ben Neitzel called "a grudge-like crime."

After the shooting, Anderson fled and was arrested in Terre Haute in November 2004 after his roommate accused him of trying to kill him. The roommate was shot several times.

Randolph was elected to the Indiana Senate in November and wants a later trial date because he says the legislature's session doesn't end until April 30 and he doesn't believe he will have enough time to prepare for a May 11 murder trial following the end of the session.

La Porte Superior Court I Judge Kathleen Lang didn't want to hear it.

She listened to the same reasoning last August, before Randolph was elected to the legislature.

One matter that delayed the trial was Anderson's decision to change attorneys. He first worked with Michigan City attorney Logan-Tinae Thomas but last summer, hired Randolph, who has been a city judge in East Chicago, where he maintains his office.

Randolph said Thursday, "By law, (Lang) cannot schedule anything while the legislature is in session." Final instructions have been scheduled for April 29, he noted, but the legislative session doesn't conclude until the next day, April 30.

"I will make sure everything will comply with the rules regarding the General Assembly," Lang said after the Thursday court session.

Even so, Randolph said, a trial date of May 11 doesn't give him even two weeks after the session to interview some 40 witnesses he plans to bring and to prepare adequately for trial.

When Lang ruled on the trial date - May 11, Randolph registered his objection and, in addition, told the judge he believes his client cannot get a fair trial if she insists on May 11.

Ideally, he said, he would like to see a July date.

In August, the victim's mother, Carolyn Moore, appeared in court to voice her objection to the length of time it is taking to bring the accused to trial. If the trial begins in May, it will be nearly five years since her son died.

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to Indiana Courts

Ind. Decisions - "$48 million judgment in steel mill fall"

The ILB doesn't generally cover jury awards, but this one seems notable. Here are two reports.

From James D. Wolf Jr of the Gary Post-Tribune, this story:

CROWN POINT — It might be a record Indiana court settlement for a man who was rendered a paraplegic by a 2004 fall at the former ISG Burns Harbor steel mill.

After a 10-day trial, a Lake County jury awarded Anthony Arciniega, 42, of Westville $48 million late Thursday.

Although larger settlements have come in other types of cases, “for somebody that’s been paralyzed from the waist down, it’s a record,” said Kenneth J. Allen, who represented Arciniega and his wife, Sarah. “I think the jury recognized the enormity of the loss to their family.”

Arciniega fell from a ladder at ISG Burns Harbor — now ArcelorMittal — in November 2004. Court documents state that the ladder was covered with refractory concrete due to the negligence of subcontractor Minteq International. * * *

“This tragedy was not the fault of Mr. Arciniega. It was the fault of others and the jury saw that,” Allen said.

Because he had a family to support, the wheelchair-bound Arciniega returned to work within six months. He still suffered from nerve pain, as doctors and co-workers testified to during the trial.

His wife, a licensed practical nurse, worked at a nursing home to make ends meet, as well as serving as Arciniega’s nurse and taking care of the couple’s three children.

From Craig Davison of the Michigan City News-Dispatch, this report, including the following:
While the $48 million verdict is a large sum, it is not the largest in Indiana history. According to Indiana Jury Verdict Reporter, there have been verdicts of $60 million and $56.5 million since 2000.

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to Ind. Trial Ct. Decisions

Environment - "EPA Issues Exemptions for Hazardous Waste, Factory Farms"

From a story today in the Washington Post, by R. Jeffrey Smith:

The Environmental Protection Agency issued a new regulation yesterday exempting an estimated 118,500 tons of hazardous waste annually from strict federal incineration controls, and it separately exempted factory farms from a requirement to report hazardous air pollution to the federal government.

The two rules are among dozens of regulations being issued during the final weeks of the Bush administration after lengthy internal deliberations and public controversy.

Using the tracker mentioned in this ILB entry yesterday, this would appear to be the incineration rule, and this is the animal air pollution reporting rule change.

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to Environment

Law - Update on: Kentucky Attorney accused of posting bonds

Updating this ILB entry from Dec. 9th, Andrew Wolfson reported in the Louisville Courier Journal yesterday:

Louisville attorney William O. Ayers was acquitted yesterday in connection with allegations that he illegally posted a $250,000 bond for a capital murder defendant through the defendant's sister.

The verdict came after a three-day trial in the first of two cases in which the commonwealth alleged that Ayers conspired with others to illegally operate as a bail bondsman, three decades after the practice was abolished in Kentucky.

Jefferson Circuit Court Judge Judith McDonald-Burkman ordered Ayers acquitted on charges of complicity to perjury after evidence showed that persons who post bail bonds in Kentucky are not required to swear under oath that their statements are true, according to Ayers' co-counsel, Patrick Renn.

The jury then acquitted Ayers on charges of forgery and tampering with physical evidence in connection with two motions that Ayers filed to get back $50,000 of the money for the defendant's sister. * * *

Ayers' lawyers, Renn and Steve Romines, acknowledged he supplied the money but said that Davis didn't commit perjury when she posted the bond because she didn't sign any sworn statements, so Ayers couldn't be convicted of complicity.

In a separate case set for trial on Feb. 2, Ayers is charged with violating the state's 1976 law on bonding by providing a $5,000 full cash bond for Kathleen Shircliff in exchange for a $500 fee.

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to General Law Related

Law - Still more on "Kentucky Tests State's Reach Against Online Gambling" [Updated]

Updating this ILB entry from Nov. 15th, there are several reports today.

Brandon Oriz of the Lexington Herald-Leader writes today in a fascinating story:

LOUISVILLE — Lawyers representing online gambling interests told the Kentucky Court of Appeals on Friday that Gov. Steve Beshear’s effort to seize domain names is blatantly unconstitutional.

A three-judge panel is weighing Beshear’s unprecedented move to seize the domain names of 141 gambling Web sites.

Franklin Circuit Judge Thomas Wingate allowed the Cabinet for Justice and Public Safety to seize the domain names last month. The seizure, at this point, is meaningless because the state cannot control the content of the Web sites until a judge orders the domain names forfeited to the state.

A forfeiture hearing has been stayed pending a ruling from the Court of Apeals.

In oral arguments Friday, lawyers representing six domain names, two online gambling trade groups and The Poker Players Alliance said the cabinet’s move is littered with legal and constitutional flaws.

They focused on four arguments:

■ Wingate does not have jurisdiction to allow the state to seize domains registered in other countries where gambling is legal.

■ Domain names are not gambling devices.

■ Domain names can only be seized after a criminal conviction. The state has not attempted to criminally prosecute the Web site operators.

■ Kentucky is prohibited by the commerce clause of the U.S Constitution from regulating interstate and international commerce, which the trade groups argue Wingate’s order affectively allows.

“We have Kentucky exercising worldwide jurisdiction,” said Frankfort lawyer William E. Johnson, who represents five domain names. Friend-of-the-court briefs supporting the online gambling interests were filed by the Electronic Frontier Foundation, Center for Democracy and Technology and the American Civil Liberties Union of Kentucky; Network Solutions LLC; and The Poker Players Alliance.

The owners of gambling sites did not appear in court Friday and have not directly participated in the lawsuit. Instead, proxy owners of six domain names and two trade groups have sought to represent their interests.

The cabinet has argued that the proxy owners and trade groups don’t have standing to challenge the seizure since they’re not revealing their client’s identities, and hence can’t prove they own the gambling sites. The cabinet’s lawyers called it a “heads-I-win, tails-you-can’t-find-me” legal strategy.

Trade groups and the ACLU of Kentucky retorted that government is attempting to coerce the gambling sites into self-incrimination — which is prohibited by the Fifth Amendment — or risk losing their domain names.

The domain name owners note that it was the state that chose to sue them rather than the gambling businesses that operate the Web sites, likely because they’re overseas and can’t be located.

A private lawyer representing the state, Erik Lycan, said the gambling sites are engaging “in a massive offshore criminal conspiracy” that’s masquerading “as a legitimate business.”

“They can’t bring that masquerade into Kentucky,” Lycan said.

More from the story:

Beshear campaigned last year on a promise to open casinos in Kentucky, but says some of the most popular gambling sites in the world are bad for the state.

The governor has said the sites create ways for children to gamble; undermine horse racing by creating untaxed competition; make it easier to launder money; and lack consumer protections to ensure people actually receive their winnings.

While Wingate’s ruling would allow the state to commandeer domain names, Internet users in Kentucky could still access the Web sites by typing their IP addresses — unique numbers assigned to every computer or Web server connected to the Internet —into their browsers, lawyers notes.

Louisville lawyer Jon L. Fleischaker, who represents the Interactive Media Entertainment and Gaming Association, a trade group, argued that domain names are no more than billboards. He noted that the Horseshoe Casino in Southern Indiana can advertise in Kentucky, even though gambling is illegal here, because of the First Amendment.

Seizing a domain name is no different than the state seizing a casino billboard, Fleischaker said.

“That is classic prior restraint,” he said.

The state wants gambling sites to block Kentucky Internet users from viewing the sites. But such technology is prohibitively expensive and faulty, gambling trade groups argued in briefs.

Furthermore, Kentucky is constitutionally prohibited from imposing such a requirement for Web sites located in other states and other countries, where the Web sites may be perfectly legal, the lawyers argued.

In briefs, the lawyers likened it to China attempting to seize a domain name registered in the United States because the Web site promotes religion.

“If we can do it to them, they can do it to us,” said lawyer John L. Tate, who represents vicsbingo.com and the Interactive Gaming Council, a trade group.

Another key issue is whether domain names are gambling devices.

Johnson said domain names do not meet the legal definition of a gambling device because domain names are not electronic devices that are manufactured. He noted that Kentucky’s gaming statutes were written in 1974, long before the Internet was commercially available.

Two of the three judges expressed skepticism about the government’s case.

Judge Jeff Taylor asked how the government could seize the domain names when the Web site operators have not been prosecuted.

Justice and Public Safety Cabinet Secretary J. Michael Brown “taught a law school class 27 years ago and he taught that there is a presumption of innocence until proven guilty,” Taylor said.

Here is a shorter story from the Louisville Courier Journal.

Here is a detailed press release about the oral argument, put out by he Interactive Media Entertainment & Gaming Association (iMEGA) is a not-for-profit corporation headquartered in Washington DC., the group challenging the forfeiture action of 141 Internet domain names sought by Kentucky Gov. Stephen Beshear.

[Updated 12/28/08] See this Dec. 22nd analysis by Anita Ramasastry on the trial court decision, headed "A Kentucky Court Approves the Seizure of Out-of-State Companies’ Domain Names: A Dangerous Precedent that May Chill Free Speech and Impede Global Internet Communications."

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to General Law Related

Ind. Gov't. - Even more on "State group appears victor for Lincoln Museum items"

Two long stories today on Indiana's success in retaining the Lincoln archives.

Angela Mapes Turner and Niki Kelly report in the Fort Wayne Journal Gazette:

Another chapter joined the lore surrounding the $20 million collection Friday, when Lincoln Financial Foundation, the charitable arm of Lincoln Financial Group, announced that the shuttered Berry Street museum’s collection will be donated to Indiana.

The collection – the world’s largest private collection of Lincoln memorabilia – will be split between the Allen County Public Library and the Indiana State Museum in Indianapolis.

The library and museum formed a coalition this year after the foundation announced it would seek a new home for the collection. The coalition also included the Indiana Historical Society, Indiana State Library and Friends of the Lincoln Museum.

Other known suitors included the Abraham Lincoln Presidential Library and Museum in Springfield, Ill.; the Library of Congress; the Smithsonian Institution’s National Museum of American History; Ford’s Theatre; and President Lincoln’s Cottage.

The Lincoln Financial Foundation would not say publicly how many groups had applied to receive the collection.

Sandi Kemmish, director of the Lincoln Financial Foundation, said Indiana’s proposal rose above the rest for several reasons.

First, the diversity of people the Indiana State Museum attracts; the capability of the library to digitize many of the books, manuscripts and documents in the collection and thus make them available online; and the creation of the Lincoln Financial Foundation Gallery at the Indiana State Museum.

The Allen County Public Library will control the books, manuscripts and clippings, while the Indiana State Museum will house the collection’s artifacts.

Two exceptions to the breakdown are a copy of the Emancipation Proclamation and a signed copy of the 13th Amendment – two documents that will be on display in Indianapolis.

Rolland, who helped lead the Indiana coalition, said its next goal is to raise about $8 million, enough for an endowment to care for the collection indefinitely.

During an earlier announcement Friday in Indianapolis, Gov. Mitch Daniels gave a heartfelt speech, saying he felt as much pride for this announcement as he does at jobs announcements, because young people can learn from the collection for years.

“Lincoln called Americans to the better angels of our nature and to constantly strive to listen to those best instincts, which he represented more than anyone,” Daniels said. “Now young people … will be able to come here and learn … and emulate the character, the courage, the principle of this greatest American.”

A quirk in the announcement, though, was that the collection will not be on display in 2009 – the bicentennial of Lincoln’s birth.

Instead, the collection will enhance an already-scheduled Library of Congress exhibition of rare Lincoln artifacts at the Indiana State Museum in 2010.

Barry Dressel, president and CEO of the Indiana State Museum, said he was unsure how quickly the collection would be transferred and cataloged so museum officials didn’t plan a 2009 display. And he noted the entire collection will not be on permanent display but instead the museum plans rotating exhibits highlighting different aspects of Lincoln’s life.

Bryan Corbin reports today in the Evansville Courier & Press:
"In a moment when most of the news is about the economy ... I think a decision like this helps add to Indiana's ambition also to be a place of ideas and inventiveness and scholarship," Indiana Chief Justice Randall T. Shepard said. "It is the sort of thing that helps Indiana succeed in the information age. (The museum) is a place where people, in addition to their daily grind, are able to engage in thinking about the future by being better informed about the past."

Lincoln Financial Group had displayed the artifacts and memorabilia for years at the former Lincoln Museum in Fort Wayne, but when the Philadelphia-based financial services company closed the museum in June, it was uncertain whether the items would be sold individually or be sent to a facility out of state.

A number of suitors, including the Lincoln Presidential Library and Museum in Springfield, Ill., and the Smithsonian Institution's National Museum of American History and the Library of Congress in Washington, D.C., made proposals for the items. But an Indiana consortium, including the state museum, Allen County library, Indiana Historical Society and Friends of the Lincoln Museum, submitted the winning proposal to keep the collection together.

The Lincoln Financial Foundation agreed and announced Friday it is donating the collection to the state.

While the Allen County library will display and digitize documents, officials said, the state museum will house three-dimensional historical artifacts. The items will enhance a Library of Congress exhibition of rare Lincoln artifacts scheduled for 2010 at the state museum.

Collections manager Jane Gastineau and registrar Cindy Van Horn said Lincoln's personal items always draw people's attention, such as the pen knife he used in his White House office to cut fruit, a heavy wool shawl he gave to his secretary or a monogrammed wallet from his attorney days.

Lincoln was the first presidential candidate to understand the value of distributing his photographic image to the masses, Gastineau and Van Horn said. Small Lincoln campaign picture cards became collectors' items in the 1860s.

News of the donation comes as Spencer County, Ind., where Lincoln lived from age 7 to 21, is celebrating the bicentennial in February of Lincoln's birth in 1809. "It will enrich our state in ways we can measure and ways we can't," [ILB emphasis]

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to Indiana Government

Ind. Gov.t - Cheryl Musgrave resigns state position as commissioner of the Indiana Department of Local Government Finance

Here is the July 13, 2007 ILB entry about Cheryl Musgrave's appointment as commissioner of the Indiana Department of Local Government Finance. At the time the ILB noted that in Vanderburgh County she had been "the first in the state to create an assessment and property sales Web site." See also this ILB followup on July 29, 2007, as well as these releated entries from Sept. 14, 2007 and Jan. 13, 2008.

In addition, don't miss this July 6, 2008 entry quoting from a long story by Bryan Corbin of the Evansville Courier & Press (the C&P story is still available online) headed "Musgrave's first year as Department of Local Government Finance marked by achievements and conflicts."

Today Thomas Langhorne reports in the C&P (oddly, an initial resignation announcement story is not available, this is the reaction story, an update). Some quotes:

Musgrave, a controversial political figure in Vanderburgh County before her appointment to the state job in July 2007, said she always had intended to serve for just 18 months. She said her resignation is voluntary and independent of any other changes Daniels may make.

"They even offered me some additional opportunities, but I've declined those," she said. "I believe the door is still open to state service, and that doesn't have to be in Indianapolis."

Musgrave said she told Daniels privately weeks ago that Friday would be her final day on the job. She pronounced herself "so delighted to be able to come home."

"I feel I've accomplished everything I came here to do," she said, citing Daniels' property tax restructuring package and government downsizing initiatives. * * *

Daniels appointed Musgrave commissioner of the Indiana Department of Local Government Finance at a time when homeowner anger over botched assessments in Marion County had erupted into taxpayer protests.

As commissioner of the Department of Local Government Finance, Musgrave was the final authority on budgets and tax rates for counties, cities and towns, libraries and school districts. Until earlier this year, she also got to approve or disapprove school construction projects, until a change in state law gave voters that authority through referendums.

Upon taking office, Musgrave discovered large disparities in reassessments, where valuations of homes had increased much more than those for commercial and industrial properties. In light of local assessment errors, she ordered partial new assessments in 21 counties to recalculate property values under the new rules.

The review found significant differences. As a result of Musgrave's orders that counties conduct "retrending" of their assessments, the state through June 2008 saw a net gain of $4.2 billion in assessed valuation on commercial property and $836.5 million in valuation on industrial property that otherwise would not have been counted.

By contrast, through June 2008, valuations of residential properties decreased by $109.4 million statewide, the amount by which homeowners had been overassessed.

During late summer and fall 2007, Musgrave was frequently in the news, announcing partial new reassessments in various counties. Her critics among some municipal government officials complained that the department under Musgrave was heavy-handed in its demands for assessing data and that township assessors were being cast unfairly as the scapegoats for botched assessments.

Daniels has "reluctantly" accepted Musgrave's resignation, the governor's press secretary, Jane Jankowski, said late Friday.

"And he said that there's no harder job in state government than the one that he asked Cheryl to take in the summer of 2007, and that Indiana taxpayers will probably not ever know the extent of the dollars that she helped save and the improvements that she made," Jankowski added.

The governor plans to name a replacement early next week, Jankowski said.

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to Indiana Government

Ind. Courts - Even more on Rockies Express Pipeline suing Indiana counties

Adding to the list of ILB entries on the Rockies Express Pipeline project making its way across our state, Jason Thomas of the Indianapolis Star reported yesterday:

A floodway in southeastern Indiana represents the latest obstacle for the builders of a multistate natural gas pipeline.

Lawyers for Rockies Express Pipeline LLC filed a lawsuit in U.S. District Court on Tuesday over access to the Whitewater River in Franklin County.

In January, the Department of Natural Resources granted the pipeline builders a certificate of approval to construct the 42-inch underground pipeline in the floodway.

Shortly thereafter, the Franklin County Drainage Board and several water utilities filed petitions with the Indiana Natural Resources Commission, requesting that the certificate of approval be overturned or reversed, according to the lawsuit.

In June, pipeline lawyers filed a motion to dismiss the commission's review of the certificate, stating that federal law pre-empted the commission's authority; the commission denied the motion in September.

The commission's denial of the pipeline's motion conflicts with the federal Natural Gas Act, according to the lawsuit.

The pipeline will suffer irreparable harm if the commission is not kept from reviewing the Department of Natural Resources' certificate, the lawsuit states.

Damage would include construction delays and contractual liabilities to contractors and equipment suppliers.

The pipeline firm is seeking an order declaring that the commission does not have authority to review the certificate and a temporary order restraining the commission from conducting an administrative review of the certificate.

The lawsuit also is seeking attorney fees and other costs associated with the lawsuit. Rockies Express has been awarded federal approval to build the final portion of a 1,600-mile pipeline from Colorado to Ohio.

The final leg, called Rockies Express-East, will run through nine Indiana counties as it stretches from Missouri to Ohio.

Posted by Marcia Oddi on Saturday, December 13, 2008
Posted to Indiana Courts

Friday, December 12, 2008

Ind. Decisions - Transfers granted today

Updating yesterday's entry, 3 more cases granted transfer on Dec. 11th. All should appear on Monday's transfer list:

Bryan G. Mosley v. State (49A02-0802-CR-188) - NFP COA opinion issued Sept. 19th.

James A. Kohlmeyer v. Second Injury Fund (93A02-0711-EX-1000) - see June 10th COA decision here - 5th case - where the issue was "Do Social Security disability benefits count toward the threshold amount of benefits that must be received in order to become eligible for benefits from the Second Injury Fund?."

Susana Henri v. Stephen Curto (49A02-0709-CV-777) - see July 31st COA opinion here - 2nd case - 2-1 decision with 3 opinions, where the majority ruled "the trial court engaged in ex parte communications with the jury when it fielded the question from the jury without notifying the parties that the question had been submitted" and granted the motion to correct errors.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Transfer Lists

Ind. Gov't. - More on "State group appears victor for Lincoln Museum items" [Updated]

Updating this ILB entry from this morning, Angela Mapes Turner and Niki Kelly of the Fort Wayne Journal Gazette posted this story a few minutes ago, that begins:

The collection of Abraham Lincoln memorabilia long housed at Fort Wayne's shuttered Lincoln Museum will stay in Indiana, state officials said Friday.

Gov. Mitch Daniels and Indiana State Museum President and CEO Barry Dressel announced this morning in Indianapolis that a coalition from the state, led by the museum and the Allen County Public Library, will receive the $20 million artifact collection.

"This was the right place and the right circumstance for this priceless piece of American history," Daniels said.

The coalition included the Indiana Historical Society, Indiana State Library and Friends of the Lincoln Museum. It was led by Ian Rolland, former chairman of Lincoln Financial Group.

Last March I wrote "Kentucky and especially Illinois make a big deal over Abraham Lincoln. The State of Indiana has done comparatively little." Well, not this time! Kudos to all those who joined together to make this happen.

[Updated at 2:30 PM]
Here is the Governor's press release. Some quotes:
Indianapolis (Dec. 12, 2008) Governor Mitch Daniels announced today that Lincoln Financial Foundation will donate its collection of Abraham Lincoln artifacts and documents to the State of Indiana.

"We enter Lincoln's bicentennial year with the goal of reestablishing Indiana's central place in his life," said Daniels. "This decision comes during Indiana's 192nd anniversary, but this is no birthday gift. It was well earned by the excellent team that represented us all. Indiana pledges the most exquisite care and the widest possible public availability of these priceless pieces of our history."

Valued at more than $20 million, this is the world's largest private collection of memorabilia from Abraham Lincoln's personal and presidential life. It will be housed at the Indiana State Museum in Indianapolis and the Allen County Public Library (ACPL) in Fort Wayne. Among the more than 20,000 items in the collection are signed copies of the Emancipation Proclamation and the Thirteenth Amendment; three-dimensional artifacts including Lincoln's wallet and a chair he sat in for some of his most famous photographs; artwork; thousands of documents; photographs; prints and rare books. * * *

The Indiana team, including representatives from the Indiana State Museum, ACPL, Indiana Historical Society, Indiana State Library, Friends of the Lincoln Museum, and Governor Daniels' office prepared the winning bid. An endowment, funded by private donations, will now be established to pay for expenses at the Indiana State Museum and ACPL to maintain the collection and make it available to the widest possible audience.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Government

Ind. Decisions - In a 2nd wave of posting, Court of Appeals issues 5 more today (and 13 more NFP)

For publication opinions today (5):

In Andrew Rogers v. State of Indiana , a 17-page opinion, Judge Mathias concludes:

First, the trial court did not err in admitting evidence regarding Rogers's prior possession of a steak knife because the possession of a steak knife is not, by itself, the sort of evidence to which Evidence Rule 404(b) applies. Second, the trial court did not err in the admission of the photographs taken of the victim during the autopsy. Moreover, even if the admission of this evidence was erroneous, any error would be harmless in light of the three eyewitnesses who saw Rogers stab Walls in the neck. Third, the trial court did not err in refusing to give Rogers's tendered instruction regarding the State?s burden to prove intent because this subject was already covered by the other instructions given by the trial court. Fourth, the trial court did not err in sentencing Rogers because he was sentenced under the post-Blakely advisory sentencing scheme to which the Blakely rule is inapplicable. Lastly, Rogers has not established that he was denied the effective assistance of trial counsel because he has not shown that his trial counsel erred or that, even if he did, he was prejudiced thereby. Affirmed.
In Amy M. Swadner v. John W. Swadner, II , a 20-page, 2-1 opinion, Judge Mathias concludes:
The trial court abused its discretion when it ordered Mother to change E.S.S.'s middle name without considering whether the name change was in his best interests. In addition, the trial court abused its discretion when it held Mother in contempt of court for failing to change E.S.S.'s middle name. Moreover, Mother failed to establish reversible error with regard to joint custody, parenting time, the allocation of the childcare expense, and the denial of her petition to relocate. Finally, the trial court abused its discretion when it failed to include the total equity in the marital residence and the entire value of Father's 401(k) in its calculation and division of the marital estate. Accordingly, we affirm in part, reverse in part and remand for proceedings consistent with this opinion.

BROWN, J., concurs.
BAKER, C.J., dissents with opinion: [which begins, on p. 19] I respectfully dissent from the majority's decision to affirm the portion of the trial court's order awarding joint legal custody to the parties herein. Although we are reluctant to reverse a trial court's grant of joint legal custody, we will do so when the evidence indicates “a clear abuse of trial court discretion in that the joint custody award constitutes an imposition of an intolerable situation upon two persons who have made child rearing a battleground.”

In Jeffrey A. Hall v. State of Indiana , a 9-page opinion, Judge Bailey writes:
Jeffrey A. Hall (“Hall”) appeals his conviction for Dealing a Schedule III Controlled Substance, a Class B felony. We affirm.

Hall presents two issues for review: I. Whether a sound recording was admitted without an adequate foundation; and II. Whether the trial court’s decision to provide the sound recording and equipment to the jurors during deliberations unduly emphasized that evidentiary exhibit and prejudiced Hall.

In Richard D. Duncan v. M & M Auto Services, Inc. , an 8-page opinion, Judge May writes:
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 (“CNG”) system in his employer?s van. The trial court granted summary judgment for M&M, and we affirm.
In Montas L. Hendricks v. State of Indiana , a 15-page opinion, Judge Barnes concludes
Hendricks did not waive his right to appeal the admission of cocaine found on his person at trial; however, the search of his person and the seizure of the cocaine were proper. Although the admission of the statement made to police by Hendricks constituted error, the error was harmless beyond a reasonable doubt. We affirm Hendricks‘ conviction.
NFP civil opinions today (5):

State of Indiana v. Elizabeth Puluti (NFP)

Arthur and Leticia Martinez v. Merrillville Youth Basketball Junior Pirates, Inc. (NFP)

In the Matter of R.A.V. (NFP)

Tim L. Godby v. Daniel K. Whitehead (NFP)

Termination of Parent-Child Relationship of M.L. and T.L. (NFP)

NFP criminal opinions today (8):

Alvino Pizano v. State of Indiana (NFP)

Linda Morrow v. State of Indiana (NFP)

Anthony D. Norman v. State of Indiana (NFP)

Chad Alan Musick v. State of Indiana (NFP)

Jhirmil L. Dawson v. State of Indiana (NFP)

Gregory Easter v. State of Indiana (NFP)

Jamaar Patton v. State of Indiana (NFP)

Demetrius Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Layoffs at an Indy "big three"?

The ILB has received an unconfirmed note that one of the big three has laid off 13 people today . . . Not too surprising, if true, in light of the economy and what is happening in law firms nationwide.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of R.H., III, T.H., and A.H.; and Roy H. v. Elkhart Co. Dept. of Child Services (NFP) - "The evidence supports the findings the circumstances leading to the children’s removal were not likely to be remedied and that termination is in the children’s best interests. Those findings support the judgment terminating Roy’s parental rights. Therefore, we affirm. "

Mark and Angela Ford v. GALS, Inc. (NFP) - "The Fords have shown prima facie error. Ind. Code § 33-29-2-7(a) states: “The filing of a claim on the small claims docket is considered a waiver of trial by jury.” However, “[n]otice of the defendant’s right to a jury trial, and the ten (10) day period in which to file for a jury trial, shall be clearly stated on the notice of claim or on an additional sheet to be served with the notice of claim on the defendant.” Ind. Code § 33- 29-2-7(c). The notice of claim submitted for the GALS claim and the Fords’ counterclaim includes no such statement, nor does the record include any “additional sheet” that would have informed the Fords of their right to a jury trial. The trial court therefore erred when it denied the Fords’ motion for a retrial. We reverse the judgment for GALS and remand for a jury trial. "

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Lawyers and judges urged to sign up to host a statewide birthday bash for Abraham Lincoln

Note this line: "The deadline has been extended beyond the original December 15th date."

That is part of this press release put out today by the Supreme Court. More quotes:

The Indiana Supreme Court is partnering with the Indiana State Bar Association to host a statewide birthday bash for Abraham Lincoln. The 200th anniversary of Lincoln’s birth is February 12, 2009. Chief Justice Randall T. Shepard invites attorneys to join him in honoring America’s 16th President by visiting classrooms around the state. Chief Justice Shepard will visit school children to talk about Abraham Lincoln and his importance to the rule of law.

“Why Lincoln Was A Lawyer” is a project created by Courts in the Classroom, the educational outreach program of the Indiana Supreme Court. The program was specifically designed for attorneys to teach school children about Lincoln and the law.

The Indiana Supreme Court needs volunteer attorneys and judges to participate in the program.

Check here for more information for lawyers, judges, and teachers

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In Lloyd v. Swifty Transportation (SD Ind., Judge McKinney), a 16-page opinion, Judge Rovner writes:

Gerald Lloyd sued Swifty Trans- portation, where he worked as a truck driver for nearly seven years. He principally claimed that Swifty violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, by passing him over for promotion, disciplining him, paying him less than non-disabled drivers, and eventually forcing him to quit his job. Lloyd also claimed that Swifty violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, by retaliating against him for taking medical leave. He further claimed that the company breached an agreement to interview him for future promotions. The district court granted summary judgment for Swifty on all claims. We affirm.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Ind. (7th Cir.) Decisions

Environment - Tracking "Midnight Regulations"

The ILB has had several entries on "midnight regulations," including this one from Nov. 20th and this one from Nov. 14th. Now, here is a way to keep track of "regulations that the Bush administration is pushing through the rulemaking process in its waning days," from the ProPublica website.

In addition, a useful article by Joaquin Sapien headed "How to Ferret Out Midnight Regs Yourself."

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Environment

Courts - Beyond "In God We Trust"?

Here is a list of ILB entries about the Indiana "In God We Trust" license plate dispute, as well as the dispute with the BMV over other God plates ("BE GODS", "GOD CAN", etc.).

Yesterday the WSJ Law Blog posted an eye-catching graphic showing the Florida "I Believe" plates - "plates that depict a stained-glass window with a cross and carrying the words 'I Believe.'"

A USAToday story reported:

A group that advocates separation of church and state filed a federal lawsuit Thursday to prevent South Carolina from becoming the first state to create "I Believe" license plates.

The group contends that South Carolina's government is endorsing Christianity by allowing the plates, which would include a cross superimposed on a stained glass window.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Courts in general

Law - Traffic and red light cameras ruled constitutional by federal judge in Akron case

Laura Johnston of the Cleveland Plain Dealer reported Wednesday:

Akron -- Opponents of traffic-enforcement cameras are running out of arguments after a federal judge ruled Tuesday that the cameras don't violate the U.S. Constitution.

The U.S. District Court decision in Akron ended a three-year lawsuit filed by Warner Mendenhall on behalf of his wife, who got a ticket from a portable camera in November 2005. The lawyer and former city councilman plans to challenge the case in the U.S. Circuit Court of Appeals in Cincinnati.

But as it stands, Mendenhall said, Tuesday's ruling affects cases filed in Cleveland, Dayton, Toledo and elsewhere. * * *

Typically, traffic law violations caught on the cameras are treated as a civil offense, without traffic-court hearings, points assessed against driver's licenses or escalating fines. Like parking tickets, the violation goes to the owner of the vehicle, not necessarily the driver.

Mendenhall, whose wife won an administrative appeal of her ticket, has spent nearly $10,000 of his own money to fight use of the cameras. In his lawsuit, he argued that the penalties actually were criminal and that the program unfairly punishes the vehicle's owner.

The suit suffered its first defeat last January, when the Ohio Supreme Court unanimously ruled that cities that use the cameras to ticket motorists aren't overstepping their home-rule authority.

Afterward, the suit reverted to U.S. District Court, since it raised the Constitution's right to due process.

In Tuesday's decision, District Judge David Dowd Jr. upheld the law's constitutionality. He found that its $100 fine was a civil penalty, rather than criminal, and that its process respects citizens' legal rights. * * *

Akron police report a 20 percent drop in speeding tickets in school zones since the city began using four video systems. The cameras operate only during the school year, while flashing lights notify drivers the 20-mph speed limit is in effect.

Since the fall of 2005, the program has issued 35,000 tickets and reaped almost $2 million for a traffic safety fund, city spokesman Mark Williamson said.

Cleveland's automated traffic enforcement cameras are posted throughout the city, to catch speeding and red-light running. The cameras generate nearly 120,000 citations a year and collected $8.28 million in 2007.

"This ruling is consistent with the city of Cleveland's legal analysis of the enforcement camera program," said Law Director Robert Triozzi. "These are civil penalties that are imposed when the law is broken; the idea of the program is to help promote safer habits." * * *

Mendenhall insists revenue is the real reason for the cameras. "This is a way to raise money," he said. "It's that simple. That's why these cities are so attracted to these programs."

Mendenhall expects his appeal will be decided next fall. After that, he said, he could appeal to the U.S. Supreme Court. Meanwhile, he urged citizens to pass initiatives to outlaw the cameras in their cities.

See this list of earlier ILB entries on red light cameras.

In a 3-page August 8th Official Opinion, Attorney General Carter has written that running a red light is a "moving traffic offense" subject to regulation by state, not local, law. In Ohio it appears that the federal court has ruled in the opposite direction.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to General Law Related

Ind. Decisions - More on "Judge gives reprieve to Hoosier Energy"

Updating this ILB entry from Nov. 26th, yesterday federal Judge David Hamilton issued a 28-page opinion superseding "prior orders regarding injunction security, including the court’s order of November 26, 2008." Some quotes from the new opinion:

John Hancock has argued that the security posted to protect it from damage from an improvident injunction has not been sufficient. The state court that originally issued a temporary restraining order required Hoosier Energy to post a bond in the sum of $100,000. It appears that the state court relied on both the Ambac credit default swap and John Hancock’s second mortgage on the Merom facility to provide the bulk of the protection for John Hancock. On November 26th, after hearing a portion of the parties’ evidence on the injunction security issue, this court ordered Hoosier Energy to post a bond for $2,000,000, also relying primarily on the Ambac credit default swap itself and the second mortgage to protect John Hancock from the risks posed by the injunction, if it is ultimately determined to have been issued improvidently. The court heard additional evidence and argument on December 2nd, and the parties submitted additional briefs after that hearing. Based on all the evidence and arguments presented, the court takes the following actions:

First, John Hancock is entitled to a total injunction security in the sum of $132 million, which is the $120 million termination payment plus about 10 percent. Hoosier Energy must be potentially liable to John Hancock in that sum worstcase scenario, John Hancock’s damages might be as high as $120 or $121 million, plus some additional costs, such as transaction costs.

Second, the more difficult issue is what form this security should take. With a more complete record than was available two weeks ago, the court finds that John Hancock is adequately protected by a total of four different forms of security, plus a further restriction on Hoosier Energy’s ability to take on additional debt while the preliminary injunction is in effect. The first form of security is the existing credit default swap arrangement itself, which currently provides security in the sum of $121 million. The second form is the $2 million cash bond posted by Hoosier Energy. The third form is a bond by Hoosier Energy undertaking to pay John Hancock up to an additional $130 million in the event that John Hancock is damaged by improper issuance of the preliminary injunction. The fourth form is John Hancock’s existing second mortgage on Hoosier Energy’s Merom facility.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "State group appears victor for Lincoln Museum items"

Updating a long list of earlier ILB entries, Angela Mapes Turner of the Fort Wayne Journal Gazette is reporting this morning:

Announcements scheduled in Indianapolis and Fort Wayne today suggest that the defunct Lincoln Museum’s collection will remain in Indiana.

The Lincoln Financial Foundation has conducted a secretive search process for a home for the collection since the Fort Wayne museum closed in June. The foundation, which did not have a comment late Thursday, has said it plans to announce a home for the collection late this year or early 2009.

Media events are scheduled for 11 a.m. today at the Indiana State Museum and 3 p.m. at the Allen County Public Library related to a “major acquisition,” said Kathi Moore, a spokeswoman for the Indianapolis museum. She would not say whether the events were related to the Lincoln collection or give further details.

The State Museum and the library are the major players in the Indiana coalition that is a finalist to land the $20 million artifact collection. The coalition includes support of the Indiana Historical Society, Indiana State Library and Friends of the Lincoln Museum. * * *

At least one more finalist for the collection remained as of October – the Abraham Lincoln Presidential Library and Museum in Springfield, Ill. David Blanchette, spokesman for the Springfield museum, declined to comment on the search process late Thursday.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Government

Ind. Courts - Former Allen Superior Court Judge Norman Baker dies at 73

Holly Abrams and Becky Manley have the report in the Fort Wayne Journal Gazette. It begins:

Former Allen Superior Court Judge Norman Baker died Wednesday. He was 73.

An Evansville native, Baker served as a judge in the court’s Civil Division for more than eight years after being appointed to the bench by Gov. Robert Orr in January 1988.

He was elected to a full term of six years in 1990. In 1996, he was defeated in a four-way race by Dan Heath.

After he left the bench, Baker was a senior judge, often filling in on the Circuit Court bench for Judge Thomas Felts.

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Courts

Ind. Courts - "Noblesville City Court to hear Westfield cases"

Chris Sikich reports in the Indianapolis Star:

NOBLESVILLE -- Westfield residents who violate city ordinances -- from speeding to other minor infractions -- will soon head to Noblesville City Court.

The Westfield City Council on Monday and Noblesville City Council on Tuesday approved a deal for Hamilton County's newest city to use the Noblesville court.
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Under the agreement, Noblesville will keep half the Westfield fines.

Accused ordinance violators from Westfield now go to Hamilton County court. But Westfield Police Chief Kevin Jowitt said Noblesville is a better option because its docket is less full than the county docket. He expects Westfield will have to pay less overtime to officers because of the shorter amount of time spent at city court versus county court.

"The judge felt they could handle the same volume of cases with the same staff," said Noblesville city attorney Mike Howard. "So it helps fund the court without the supplement of tax dollars."

The agreement will be terminated if Noblesville's existing staff -- led by Judge Greg Caldwell -- cannot handle the extra cases.

The state allows cities to operate courts. Carmel and Noblesville, the only cities in Hamilton County before this year, both operate their own. Westfield has opted not to open one. Jowitt said it's unclear when cases will transfer to Noblesville.

"Courts really are a great way for municipalities to handle ordinance violations," Jowitt said. "Westfield as a city is certainly at the point where we looked at that, however, we don't have the volume that would make it cost effective to establish our own city court."

Posted by Marcia Oddi on Friday, December 12, 2008
Posted to Indiana Courts

Thursday, December 11, 2008

Environment - "Obama Team Set on Environment"

From today's NY Times, a long story. Here is just a paragraph:

The officials said Mr. Obama would name Steven Chu, the director of the Lawrence Berkeley National Laboratory, as his energy secretary, and Nancy Sutley, deputy mayor of Los Angeles for energy and environment, as head of the White House Council on Environmental Quality. Mr. Obama also appears ready to name Carol M. Browner, the E.P.A. administrator under President Bill Clinton, as the top White House official on climate and energy policy and Lisa P. Jackson, who until recently was New Jersey’s commissioner of environmental protection, as the head of the E.P.A.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Environment

Ind. Decisions - Two today from the Supreme Court

Here are the two opinions mentioned earlier today in this entry.

In Louis Richard Harris v. State of Indiana, a 6-page opinion, Justice Sullivan writes:

Defendant Louis Richard Harris, Jr., seeks our review and revision of his sentence imposed for two counts of child molesting. The trial court ordered two consecutive sentences of 50 years each, for a total executed sentence of 100 years. We revise the sentences to be served concurrently. * * *

We summarily affirm the Court of Appeals with respect to Harris’s convictions. App. R. 58(A)(2). We remand this case to the trial court with instructions to issue an amended sentencing order and to issue or make any other documents or docket entries necessary to impose a revised sentence consistent with this opinion, without a hearing.

In Ky Morton v. Jerome Ivacic, an 8-page opinion, Chief Justice Shepard writes:
The informality of litigating in small claims court promotes doing substantial justice in a relatively efficient way, conferring benefits on plaintiffs and defendants alike. In this case, the court effectively declined to hear evidence on a tenant‟s affirmative defenses to eviction and ordered immediate possession for the landlord. We conclude that the tenant was not given a sufficient opportunity to present a defense, and therefore reverse.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 23 NFP)

Readers: I'm sorry to report that the opinions posted by the Court today are copyprotected, which means the ILB is unable to quote from them.

[More]
A reader has asked (already):

Is “copy protected” some mechanical/electronic device, or a creature of the law???? I’m sure other bloggers would be interested as well.

Answer: In this case, the former. When you create a PDF you have the option of setting security so that the document may not be copied. This has been done in today's opinions.

Note: The problem has now been corrected, for the most part.

For publication opinions today (6):

In In the Termination of Parent/Child Relationship of M.S., a 14-page opinion, Chief Judge Baker writes:

Here, we are confronted with a mother who loves her children but is struggling to manage her oldest son’s special needs. Specifically, her son suffers from a personality disorder that causes him to act aggressively toward others, so his mother asked for help from the Department of Child Services. Everyone agrees that, for now, the boy should continue to reside in a facility so that he can receive full-time medical and behavioral care. To terminate the mother’s parental rights at this time is premature and would penalize her for asking for help. Therefore, we find that the trial court’s order terminating the parent-child relationship was erroneous.

Appellant-respondent H.S. (Mother) appeals the trial court’s order terminating her parental relationship with M.S., her eight-year-old son. Mother raises two arguments, one of which is dispositive; namely, that the evidence does not support the trial court’s conclusion that termination is in M.S.’s best interests. Finding that the evidence is insufficient to establish that termination is in M.S.’s best interests at this time, we reverse and remand for further proceedings. * * *

Having closely reviewed the record herein, we are compelled to conclude that termination of Mother’s parental rights at this time is, at best, premature. No one can predict when—or even whether—M.S. will become stabilized. And no one can predict what will be best for him when and if he becomes stabilized. But to say that Mother’s parental rights must be terminated merely because her child has special needs and she needs help to manage his behavior would send a sobering message indeed to all of the parents in Indiana with children who need ongoing medical or psychological assistance. In effect, as aptly put by Mother’s attorney during the termination hearing, taking this step “creates a message that if you’ve got a child that is difficult and you do seek help for that child, your reward is the child is removed, never to return.”

The problem here is not Mother’s parenting skills or her love for her children, nor has she been reluctant to comply with DCS’s suggested services. Instead, the problem is M.S.’s special needs. Rather than taking the radical action of severing the parent-child bond prematurely, DCS and the courts should be focused on helping M.S. to become stabilized and reevaluating his best interests when and if stabilization occurs. At this time, however, we find that the trial court erred by concluding that termination of the parent-child relationship is in M.S.’s best interests.

In Che B. Carter v. State of Indiana , a 25-page, 2-1 opinion, Chief Judge Baker writes:
Appellant-petitioner Che B. Carter appeals the denial of his petition for post- conviction relief, arguing that the post-conviction court erroneously concluded that he did not receive the ineffective assistance of appellate counsel. Specifically, Carter argues that his appellate attorney was ineffective for failing to raise an argument on appeal that the jury was erroneously instructed on the elements of attempted murder. Finding that appellate counsel was deficient for failing to raise that argument and that Carter was prejudiced as a result, we reverse and remand with instructions to vacate Carter's attempted murder conviction and for further proceedings. * * *

The judgment of the post-conviction court is reversed and remanded with instructions to vacate Carter's attempted murder conviction and for further proceedings.

MATHIAS, J., concurs.
BROWN, J., dissents with opinion. [which begins] I respectfully dissent from the majority?s reversal of Carter's attempted murder conviction. While I agree that the instruction at issue here was erroneous and that Carter's appellate counsel was deficient for failing to raise the issue on direct appeal, I conclude that Carter has failed to demonstrate prejudice. As a result, I would affirm the post-conviction court?s denial of Carter's petition for post-conviction relief.

In In Re: The Marvine W. Alford Trust, Joseph & Sarah Rogers v. Robert Lyons, Trustee, an 18-page, 2-1 opinion, Chief Judge Baker writes:
Today we are confronted with an issue of first impression in Indiana: Did the trial court properly dismiss a petition to remove a trustee and compel an accounting for lack of subject matter jurisdiction when the settlor?s will and trust documents provided that the trust was to be administered in accordance with the laws of Virginia?

Appellants-petitioners Joseph and Sarah Rogers (the Rogerses) appeal the trial court?s dismissal of their petition to remove appellee-respondent J. Robert Lyons as trustee of the Marvine W. Alford Trust (Alford Trust). Specifically, the Rogerses argue that the trial court erroneously determined that it lacked jurisdiction to consider the merits of their petition because the evidence established that Lyons, although a Virginia resident, made distributions from the Alford Trust to beneficiaries who are Indiana residents. Concluding that the trial court properly dismissed the Rogerses? petition, we affirm. * * *

In accordance with our statutes and the relevant trust administration principles discussed above, it is apparent that Indiana has no continuing supervisory jurisdiction over the Alford Trust. Indeed, Alford?s will contemplated that Lyons, a Virginia resident, would serve as the sole trustee, establishing that the Alford Trust would be administered in Virginia and that Virginia law would apply. In essence, the mere fact that Lyons directed payments to Indiana beneficiaries is of no moment in these circumstances. Therefore, we conclude that the trial court properly granted Lyons?s motion to dismiss based on the lack of subject matter jurisdiction. The judgment of the trial court is affirmed.

MATHIAS, J., concur.
BROWN, J., dissents with opinion. [which begins, on p. 11] I respectfully dissent from the majority‟s conclusion that the trial court properly granted Lyons‟s motion to dismiss and its blurring of the distinction between subject matter jurisdiction and personal jurisdiction.

In Ronald Hooker v. Jigme K. Norbu and Yaling Huang , a 17-page, 2-1 opinion, Chief Judge Baker writes:
Appellant-plaintiff Ronald Hooker appeals the trial court?s order calculating the damages owed to Hooker on his complaint for breach of contract against appellees- defendants Jigme K. Norbu and Yaling Huang (collectively, the appellees). Hooker argues that the trial court erroneously neglected to include interest payments that should have been made by the appellees as part of the damages award. Finding that Hooker elected the remedy of forfeiture rather than foreclosure and is therefore prohibited from recovering the missed payments, we affirm. * * *
MATHIAS, J., concurs.
BROWN, J., dissents with opinion: [which begins, on p. 10] I respectfully dissent. I disagree with the majority?s holding that by electing to have the Contract forfeited, Hooker may not enforce its terms with respect to outstanding payments for the time in which the appellees occupied the real estate but neglected to make full, or, in some months, even partial payments. I believe that the forfeiture provision at issue terminates the Contract prospectively and has no bearing on Hooker?s right to collect payments for the appellees' prior occupation of the real estate.
In Edward Powell v. State of Indiana, a 15-page opinion, Judge Vaidik writes:
While searching Edward Powell incident to his arrest for several crimes, an Indianapolis police officer felt an object in the seat of Powell‘s underwear. Because the officer could not access the object, and because Powell was wearing droopy pants that exposed most of his underwear, the officer, careful not to reveal Powell‘s skin, used a pocket knife to remove an eight-inch section of Powell‘s underwear and found cocaine enclosed in a fabric pocket. Powell then filed a motion to suppress the cocaine as well as statements he made to detectives during a custodial interview after allegedly requesting an attorney and invoking his right to remain silent. The trial court denied his motion, and Powell now brings this discretionary interlocutory appeal. Concluding under the factors enunciated in Bell v. Wolfish, 441 U.S. 520 (1979)—scope of intrusion, manner of search, justification for search, and place conducted—that the search of Powell‘s person was reasonable under the Fourth Amendment and finding no other constitutional violations, we affirm the trial court‘s denial of Powell‘s motion to suppress.
In Brandon Philson v. State of Indiana , a 12-page, 2-1 opinion, Judge Vaidik writes:
Brandon Philson appeals his conviction for Class B felony child molesting. Brandon, who was seventeen years old at the time of the alleged offense, was charged in adult court with two counts of rape and three counts of child molesting pursuant to Indiana’s automatic jurisdiction statute, Indiana Code § 31-30-1-4. Rape is enumerated in the statute, but child molesting is not. The child molesting charges, however, were properly joined with the rape charges pursuant to another subsection of the statute. Brandon was ultimately acquitted of both rape charges and two of the three child molesting charges. He argues that once he was acquitted of the rape charges, which are the charges upon which the trial court’s automatic jurisdiction was based, jurisdiction should have vested in the juvenile court. Because Indiana Code § 31-30-1-4 does not provide any mechanism for transferring jurisdiction to the juvenile court if a defendant is acquitted of the offense upon which the adult court’s automatic jurisdiction is based but convicted of a joined offense, we affirm the trial court. * * *

Other state legislatures have addressed this scenario head-on, and we implore our legislature to do so. For example, the State of Washington’s legislature amended its statute in 2005 to provide that if a juvenile is acquitted of the offense upon which the adult court’s jurisdiction is based but convicted of a non-enumerated crime, jurisdiction transfers to the juvenile court for disposition. State v. Posey, 167 P.3d 560, 563-64 (Wash. 2007) (citing Wash. Rev. Code § 13.04.030(1)(E)(II)). The rationale for Washington’s amendment is to keep juveniles in the juvenile system to allow creative intervention at the juvenile justice level and to maintain its policy of treating juveniles and adults differently. Id. at 563.

However, as it now stands, Indiana Code § 31-30-1-4 plainly and unambiguously provides that a juvenile court does not have jurisdiction over an individual (who was at least sixteen years old at the time of the alleged violation) for an alleged violation of an offense listed in subsections (a)(1)-(12) and any offense that may be joined with it pursuant to subsection (a)(13). There is no language in the statute providing for a return of jurisdiction to the juvenile court if the defendant is acquitted of an offense listed in subsections (a)(1)-(12) but convicted of an offense joined with it pursuant to subsection (a)(13). Though we sympathize with Brandon’s situation, we will not read such language into the statute. The trial court properly exercised jurisdiction over him. We therefore affirm.

CRONE, J., concurs.
KIRSCH, J., dissents with separate opinion: I believe the trial court abused its discretion in denying the motion to sever. Accordingly, I respectfully dissent.

NFP civil opinions today (5):

John M. Stull, Betty J. Stull, and Travis W. Pickavet Trust v. John A. Wolff and Rosemary Wolff (NFP) - "In sum, we affirm the judgment against John Stull and in favor of the Wolffs on the Wolffs‟ trespass counterclaim, the award of $8,000.00, and the denial of Rosemary‟s request for attorney‟s fees. We reverse the trial court‟s judgment against Betty and the Trust on the Wolffs‟ trespass counterclaim."

Carmen Prickett v. Wanda Prickett (NFP) [Still unavailable for pasting quotes]

Rosemary Dean v. William Pelham, Rep. of the Estate of William McNatt (NFP) - "The designated evidence establishes, as a matter of law, that Dean was a party to Account 8291, and thus, Dean was entitled to the statutory presumption of rights of survivorship. Further, the designated evidence does not clearly and convincingly establish that William‟s intent was contrary to the statutory presumption of survivorship rights. We therefore conclude that there are no genuine issues of material fact and Dean is entitled to judgment as a matter of law. We remand to the trial court with instructions to grant summary judgment in favor of Dean."

In Re: Termination of Parent-Child Relationship of A.B., Z.W. and A.P. (NFP) - "Zachary W. (“Father”) appeals the involuntary termination of his parental rights, in Fountain Circuit Court, to his son, A.B. On appeal, Father claims there is insufficient evidence supporting the trial court’s judgment terminating his parental rights to A.B. Concluding that the trial court’s judgment is supported by clear and convincing evidence, we affirm."

Dennis Hoffman, Merle Hoffman, Eric Harvey, and Angela Harvey v. WCC Equity Partners, LP (NFP) - "Dennis Hoffman, Merle Hoffman, Eric Harvey, and Angela Harvey (collectively, “the Neighbors”) appeal the trial court’s entry of partial summary judgment in favor of WCC Equity Partners, L.P. (“WCC”). We reverse and remand.

"The Neighbors and WCC raise three issues, which we restate as follows: I. Does the economic loss doctrine bar the Neighbors from recovering economic damages pursuant to their claim of negligence against WCC? II. Does the law of the case doctrine require us to affirm the trial court’s decision? III. Does the doctrine of res judicata prevent this Court from reviewing the appealed order in this case? "

NFP criminal opinions today (18):

State of Indiana v. Jason Cioch (NFP)

Domenise Drane v. State of Indiana (NFP)

William T. Gillam v. State of Indiana (NFP)

Steve Toby v. State of Indiana (NFP)

Brian A. Mouser v. State of Indiana (NFP)

Terrance E. Fields v. State of Indiana (NFP)

Richard Gephart v. State of Indiana (NFP)

Corey Fingers v. State of Indiana (NFP)

Mark Roggenkamp v. State of Indiana (NFP)

Robert D. Booker, Jr. v. State of Indiana (NFP)

Michael G. Bonaventura v. State of Indiana (NFP)

Christopher Hogan v. State of Indiana (NFP)

Alfred Lorenzo Fowler, II v. State of Indiana (NFP)

Anthony Crenshaw v. State of Indiana (NFP)

Edward Henley v. State of Indiana (NFP)

Timothy J. Wyllie v. State of Indiana (NFP)

Larry Hill v. State of Indiana (NFP)

Kenneth A. Snow v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfers granted today

From the Court's conference today, this news:

The following cases have been granted transfer:

Louis Richard Harris v. State (48A02-0606-CR-532) - Transfer granted with opinion.

Ky Morton v. Jerome Ivacic (71A03-0708-CV-386) - Transfer granted with opinion.

Raphael Miles v. State (82A01-0711-PC-529) - Transfer granted and Remanded to the Court of Appeals.

Presumably we will be seeing the Supreme Court opinions in at least the first two as soon as later today.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Indiana Transfer Lists

Ind. Law - "Equifax to pay in credit-law violation"

Amanda Iacone of the Fort Wayne Journal Gazette reports today:

One of the nation’s three main credit reporting agencies has agreed to pay Indiana $65,000 after the attorney general accused the agency of violating the state’s credit-freeze law.

Attorney General Steve Carter announced the agreement with Equifax Information Services LLC during a stop in Fort Wayne on Wednesday.

Carter said Equifax failed to confirm when 19 Indiana consumers opted to freeze their credit and didn’t provide those consumers personal identification numbers within the timeframes required by the law.

Equifax agreed to comply with the law and to pay $65,000 to the attorney general’s Consumer Protection Fund. The terms of the agreement were stated in a consent judgment filed in Marion County Superior Court this month.

Equifax denied wrongdoing and the consent judgment avoided a lengthy legal battle, court records said.

Indiana’s law took effect in September 2007. Credit reporting agencies are required to freeze a person’s credit report within five business days of receiving the individual’s written request.

The law also requires the agencies to confirm with consumers that they want to place the freeze, provide personal identification numbers and give instructions on how to lift the freeze, all within 10 days of the consumers’ request.

Consumers can also use the personal identification numbers to apply for new credit, access their credit report or lift the freeze.

Placing a security freeze on a person’s credit reports can block an identity thief from opening a new account or obtaining credit in that person’s name.

For background start with this April 22nd ILB entry.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Indiana Law

Courts - "First Take on Federal Rule of Evidence 502"

Leonard Deutchman has this article in the Pennsylvania Law Weekly that begins:

In Rhoads Industries v. Building Materials Corp, No. 07-4756 (E.D. Pa. Nov. 14, 2008), Judge Michael M. Baylson of the Eastern District of Pennsylvania issued the first opinion to apply newly enacted Federal Rule of Evidence 502, which governs how privileged materials inadvertently produced in discovery are to be treated. Examination of the court's opinion reveals, in my view, weaknesses in both the court's analysis and the rule itself.
Related is this article, "How Rule 502 Affects Lawyers and E-Discovery," an Oct. 8th special to Law.com, by Robert A. Schwinger and Eric Twiste.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Courts in general

Environment - More on "Local air quality controls dealt blow"

Supplementing this long ILB entry yesterday on the termination of state air monitoring contracts with Indianapolis and Evansville is this lengthy story today in the Terre Haute Tribune-Star, reported by Howard Greninger, headed "IDEM opting out early on contract with Vigo Air Polution Control Department." A quote:

That means the Vigo County department will no longer receive state funds and most likely would have to establish and implement local permit fees to help pay for air quality inspections by revising a county ordinance.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Environment

Ind. Decisions - "Court reduces sentence in motel killing: Convictions violated double jeopardy rules"

The Court of Appeals decision Tuesday in the case of Bianca Newgent v. State of Indiana is the subject of a brief AP story today that begins:

The Indiana Court of Appeals has reduced the 93-year sentence given a woman for her role in the slaying of a motel owner, saying two of her convictions violated rules against double jeopardy.

The court left intact Bianca Newgent's 65-year sentence for murder and said it was appropriate.

But in a 22-page ruling Tuesday, the three-judge panel set aside her convictions for criminal confinement and assisting a criminal, saying jurors likely used the same evidence to convict her on each of those counts and the murder count.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Ind. App.Ct. Decisions

Law - More on: SEC's Division of Enforcement issues a 122-page Enforcement Manual

Updaitng this Nov. 5th ILB entry is this Law.com story today by Harold K. Gordon and Tracy V. Schaffer, headed "Release of 'Red Book' a Move Toward SEC Transparency." A quote:

The Red Book historically served as a procedural reference on certain issues for SEC Staff in their investigations of potential violations of the federal securities laws. For the first time, it will now serve as a resource to help standardize the SEC's investigative process by compiling many of the procedures of the SEC's Division of Enforcement in one document available to the public.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to General Law Related

Ind. Gov't. - "Attorney perks irk board member"

A story today by Jeff Burton of the NWI Times begins:

PORTAGE | Perks in a school corporation attorney's contract and discussion of that contract in an executive session sparked the ire of one Portage Township School Board member Wednesday night.

Board member Cheryl Oprisko said a standing agreement to provide the district's labor relations attorney from the Gary-based firm of Friel and Friel with health insurance benefits and the administration's lumping his contract in with those of other school district administrators is a practice that needs to stop.

The school corporation has had the practice in effect since at least 2006, Superintendent Mike Berta said.

According to the current agreement, the school corporation pays the firm a flat $12,000 annually and an individual attorney with the firm an additional $28,000 plus about $20,000 in health benefits. The agreement, Berta said, guarantees the school corporation access to the attorney, a former teacher, for collective bargaining matters and also expulsion hearings.

Oprisko said the attorney is a contractor, not an employee and should not be receiving health benefits.

"$20,000 could have been used to buy books. My daughter's in a social studies class and she still doesn't have a book," she said.

School Board member Bill Fekete said School Board members aren't employees either, but are eligible to receive health care benefits.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Indiana Government

Law - Still more on "Feds take Gov. Blagojevich into custody"

Updating this Dec. 9th ILB entry, an editorial today in the Christian Science Monitor, headed "Shock and gall in Illinois: The Blagojevich case signals the need for vigilance by citizens, too, to eye the corrupt.", concludes:

s Congress moves to throw billions at the states for infrastructure projects for economic stimulus, more eagle-eyes are needed to watch how that money is spent. And with more newspapers folding and laying off journalists, citizens need to step up their watchdog role.

Prosecutors play a central role, of course. After Watergate, a "public integrity" section was set up in the Justice Department. From 2001 to 2006, it won convictions for 5,876 individuals on public corruption. The FBI has more than 600 agents dedicated to such cases, nearly double from a decade ago.

Temptations for greed or graft are rising with the need for politicians to raise higher amounts of campaign cash. Politicians are more susceptible to helping donors, such as with earmarks on spending bills.

The Blagojevich case seems to have uncovered a whopper of an example of someone charged with selling his office for favors. It's a wake-up call for every citizen everywhere.

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to General Law Related

Courts - More on: "Florida high school student files complaint after suspension for creating Facebook page critical of teacher"

Updating this ILB entry from yesterday, Shannon P. Duffy of The Legal Intelligencer reports today under the heading: "3rd Circuit Mulls School Discipline for Hoax Web Pages." The story begins:

In First Amendment law, the frontier is often defined by students in grade school and high school whose activities -- and antics -- have consistently forced the courts to grapple with new and difficult questions.

A pair of cases now before the 3rd U.S. Circuit Court of Appeals present strikingly similar facts -- both involve students who were disciplined for ridiculing their principals by creating fake profile pages on MySpace.com.

But the lower courts divided on the issue. A Western District of Pennsylvania judge ruled that school officials violated the First Amendment by suspending a student for off-campus speech; but a Middle District judge found that school officials have the power to restrict speech that is vulgar or lewd. The first of the two cases came up for oral argument Wednesday before 3rd Circuit Judges Theodore A. McKee, D. Brooks Smith and Jane R. Roth.

The American Civil Liberties Union of Pennsylvania has sided with the students in both cases, arguing that since the parody profiles were created outside of school, the school officials had no right to impose any discipline.

In J.S. v. Blue Mountain School District, U.S. District Judge James M. Munley ruled that an eighth-grade student was properly suspended for 10 days after she created a fake MySpace page that depicted her principal as a pedophile and a sex addict. * * *

But in Layshock v. Hermitage School District, U.S. District Judge Terrence F. McVerry found that school officials went too far when they suspended Justin Layshock for creating a fake profile of Hickory High School's principal, Eric Trosch, that said he was a "big steroid freak," a "big hard-ass" and a "big whore" who smoked a "big blunt."

[More] And here (thanks to a link from How Appealing), is more on the Pennsylvania federal case, via interesting story today in the Philadelphia Inquirer, reported by Jennifer Lin, that begins:
Saying the freedom-of-speech case against the Hermitage School District in Western Pennsylvania would have an "incredibly far-reaching effect," a federal appeals court judge yesterday questioned whether the district could discipline a student for comments made on the Internet.

"How far can a school extend its reach?" asked Judge Theodore E. McKee during a hearing before a three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia.

Interestingly, that was my question when I read the US Supreme Court's opinion in the "Bong Hits for Jesus" case . A quick check of the internet turned up this entry at a blog sponsored by PBS, which explores the question: "What does the ruling [Bong Hits] mean for students punished for online activities that take place off-campus?"

Posted by Marcia Oddi on Thursday, December 11, 2008
Posted to Courts in general

Wednesday, December 10, 2008

Ind. Decisions - Nonprecedential Disposition from the 7th Circuit

In this federal nonprecedential disposition, ("To be cited only in accordance with Fed. R. App. P. 32.1"), Deborah Walton v. City of Carmel (SD Ind., Judge Young), a 2-page order, the Court rules:

When Deborah Walton purchased her home in Carmel, Indiana, in 2000, she agreed to a host of covenants and restrictions—chief among them an easement permitting the Claybridge Homeowners Association (CHA) to maintain an entry wall and sign on a corner of her property. That wall runs to the edge of an adjacent road, and by doing so it interferes with the City of Carmel’s right‐of‐way (i.e. the road shoulder). After Walton notified the city of the problem (and requested that the city remove the entire wall), the city contacted the CHA. The CHA proposed a substitute solution—that the city consent to the encroachment on to its right‐of‐way. To that end the CHA filed a formal request, which the Carmel Board of Public Works and Safety approved following a public hearing.

Walton responded by suing the City of Carmel, its mayor, the city attorney, the CHA, and various other individuals under 42 U.S.C. § 1983, claiming that the city’s consentto‐ encroachment deprived her of property without due process of law. * * *

We agree with the district court’s reasoning and the magistrate judge’s report, which aptly summarizes Walton’s theory and its failing:

Plaintiff seems to be arguing that Carmel is required to protect whatever interest she has in the [land on which the right‐of‐way sits] by not giving up its rights without her consent, and if Carmel fails to do so, then she is deprived of due process under the Fifth and Fourteenth Amendments. Because the Constitution does not impose this requirement on Carmel, Plaintiff’s due process claim fails.
Walton has no right under the Constitution to the affirmative assistance of the government in protecting her property. See DeShaney v. Winnebago County Depʹt of Soc. Servs., 489 U.S. 189, 195‐96 (1989). Accordingly, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Ind. (7th Cir.) Decisions

Environment - More on "IDEM parses news reports for governor"

Updating this ILB entry from Dec. 7th, the Gary Post -Tribune has an editorial today headed "What is Daniels trying to hide about IDEM?." Some quotes:

The Indiana Department of Environmental Management is keeping a list -- and checking it twice.

The agency in charge of enforcing water and air regulations has been sending lists of newspaper stories to Gov. Mitch Daniels' office, marking them as "positive," "negative" or "neutral." * * *

What's worse than the list is Daniels flatly refusing to answer any questions about the need for such reports.

Who initiated them? Do other agencies create such lists? And a simple, overarching question: Why?

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Environment

Courts - More on "Romanette"

Updating this ILB entry from Nov. 18th, Legal Times today has an entry by Tony Mauro headed "Romanette, Revisited."

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Courts in general

Ind. Decisions - Yesterday's Raybestos ruling [Updated]

The Supreme Court's opinion yesterday in the case of Indiana Department of Environmental Management v. Raybestos Products Co. (see ILB summary here) is the subject of a press release this afternoon by Attorney General Carter:

The Indiana Supreme Court has upheld a decision to overturn a trial court ruling that would have denied the Indiana Department of Environmental Management (IDEM) the ability to exercise its authority to enforce strict standards of environmental clean-up at contaminated sites and would have cost taxpayers $16.4 million. * * *

On June 12, 2006 and October 30, 2006 a Marion County Superior Court ordered the State to pay approximately $16.4 million, which included attorney fees to Raybestos Company for Breach of Contract.

In 1997, Raybestos entered into an Agreement with IDEM for a risk assessment and removal plan of high levels of polychlorinated biphenyls (PCB’s) found in the Shelly Ditch, downstream from the Raybestos plant in Crawfordsville, IN. In 2003 Raybestos filed suit against IDEM for Breach of Contract when the Agency disproved the risk assessment and removal plan of the contamination. IDEM was also being challenged for seeking Environmental Protection Agency (EPA) review to force Raybestos to clean-up PCB’s to safe levels. The original agreement between the parties in 1997 contained a level of PCB’s that was twenty times higher than federal requirements allow.

The Indiana Court of Appeals overturned the trial court ruling on November 14, 2007, finding that a cleanup level of PCB’s twenty times higher than that of the federal requirement would be contrary to public policy.

[Updated 6:30 PM] This AP story posted today on the Chicago Tribune website reports:

INDIANAPOLIS - Taxpayers won't get the bill for a PCB cleanup in Crawfordsville due to a decision by the Indiana Supreme Court.

The ruling upheld a Court of Appeals decision that the state should not have to pay Raybestos Products Co. $16.4 million in damages related to potential cleanup costs.

"This decision reinforces the fact that Indiana will hold those who cause contamination responsible for the costs of clean-up," said Thomas W. Easterly, commissioner of the Indiana Department of Environmental Management.

The Supreme Court on Tuesday ruled that an agreed order between IDEM and a polluter is an agency action, not a contract that will support a claim for damages against IDEM.

The ruling also frees IDEM to set a standard for the cleanup stricter than that Raybestos initially agreed to, which was 20 times that allowed by the EPA. A 2007 Court of Appeals ruling held that the higher limit was unenforceable because it was contrary to public policy.

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Environment | Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Term. of Parent-Child Rel. of Ja.H., Ja.H., Jo.H.; and G.C. v. Johnson Co. Dept. of Child Services (NFP) - "The DCS presented clear and convincing evidence that there is a reasonable probability that the conditions resulting in the children’s removal would not be remedied. There is sufficient evidence to support the termination of Clark’s parental rights. "

Frank DelCorno v. Judith DelCorno n/k/a Judith Spila (NFP) - " Because Del Corno established that he was improperly served, the trial court lacked personal jurisdiction over him and the default judgment against him is void. The trial court improperly denied his motion to set aside default judgment. We reverse. "

Term. of Parent-Child Rel. of H.T.; and R.T. v. Dept. of Child Services of Marion Co., and Child Advocates, Inc. (NFP) - "MCDCS failed to provide Mother with essential information including the date, time, and location of the March 28, 2008 termination hearing. In fact, the evidence indicates that the only notice provided to Mother was a general notice of the termination proceedings which specifically informed Mother that she had “until April 1st, 2008” to respond to the complaint before her parental rights “may” be terminated. Pet’r’s Ex. 12 at 32. As a result, Mother’s statutory right to notice of the termination hearing pursuant to Indiana Code section 31-35-2-6.5 was fatally compromised. We therefore reverse the juvenile court’s judgment terminating Mother’s parental rights and remand this cause for a new termination hearing."

NFP criminal opinions today (6):

Shane L. Cummings v. State of Indiana (NFP)

Christopher Rogers v. State of Indiana (NFP)

Charlton L. Smith v. State of Indiana (NFP)

John D. Farris v. State of Indiana (NFP)

James Gene Bartley, III v. State of Indiana (NFP)

Seneca L. Griffin v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In State v. Michael Cozart, a 10-page, 5-0 opinion, Justice Rucker writes:

In this opinion we reaffirm that before accepting a guilty plea to a felony offense the trial court must advise the defendant only of those rights dictated by statute or required by the state or federal constitution. Because the trial court in this case discharged its duty accordingly, the post- conviction court erred in vacating the defendant’s conviction and setting aside his plea of guilty. * * *

The judgment of the post-conviction court is reversed. This cause is remanded for further proceedings.

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - "Florida high school student files complaint after suspension for creating Facebook page critical of teacher"

The ILB has a long list of entries relating to MySpace, including the case of A.B. v.State of Indiana, where, as reported in this May 14th entry, both the Court of Appeals and Supreme Court, using differing rationales, "overruled a judge who placed a middle school student on probation for posting an expletive-laden entry on MySpace criticizing her principal over school policy on body piercings."

In this story yesterday in the Miami Herald, Jennifer Moohey Piedra reports:

A recent graduate of Pembroke Pines Charter High filed a lawsuit against the school's principal for allegedly violating her First Amendment rights, after she was suspended for posting negative comments on the Internet about a teacher.

The American Civil Liberties Union filed the lawsuit Monday in federal court, on behalf of Katherine Evans, 18, of Pembroke Pines.

The drama began in November 2007 when Evans, a senior at the school, created a Facebook page that criticized her Advanced Placement English teacher, Sarah Phelps, as ``the worst teacher I've ever met.'' * * *

Two days after posting the information, Evans took it down on her own free will.

But when Peter Bayer, the school's principal, learned of the posting, he suspended Evans for ``bullying and cyber bullying harassment towards a staff member.''

Evans had to stay out of school for three days, she was removed from her AP classes and forced into ''lesser-weighted honors classes,'' according to the lawsuit.

The ACLU claims that Evans First Amendment rights -- ``the free and unfettered exchange of ideas and opinions in the public arena -- were violated.

More information can be found in this Dec. 9th story on the Student Press Law Center Some quotes:
The dispute stems from a page that Evans posted on Facebook, a social-networking Web site, denouncing her AP English teacher for her "insane antics" and inviting others to "express your feelings of hatred" by posting messages to the site. According to the complaint filed with the court, the Web site was up for only two days, over a weekend, and was not seen by the teacher before Evans voluntarily pulled it down. The Facebook site attracted only three posted comments, all of them supporting the teacher and criticizing Evans.

Evans was disciplined on the grounds of violating Broward County school board policies against "Bullying / Cyber bullying / Harassment towards a staff member" and "Disruptive behavior," according to a copy of her Notice of Suspension attached to the complaint.

The complaint contends that punishing Evans for purely off-campus speech that created no disruption at school violated her right to free speech. Attorneys Randall Marshall and Maria Kayanan of the American Civil Liberties Union of Florida staff and outside legal counsel Matthew D. Bavaro filed the complaint.

"Students cannot be punished for posting comments online from their home computers criticizing their teachers. Absent a credible threat of harm, criticism is protected by the First Amendment," Kayanan, associate legal director of the ACLU of Florida, said in a news release. * * *

Student online speech is a prolific area of First Amendment litigation. The Third Circuit U.S. Court of Appeals is scheduled to hear oral arguments Wednesday in the case of Layshock v. Hermitage School District, in which a Pennsylvania school district is appealing a lower court's ruling that the district violated a student's First Amendment rights by suspending him for posting sarcastic comments mocking his principal on a MySpace page.

The SPLC site includes a link to the complaint in the Katherine Evans case.

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Courts in general

Ind. Law - "It's the law" examines prosecutors

The ILB missed several of Ken Kosky's "It's the Law" columns in the NWI Times earlier this month. Here is a two-part series on prosecutors.

"Prosecutors won't file charges for everything" is the heading of the Dec. 1st column. Some quotes:

A truck driver runs a red light and kills a person in a car.

A woman accuses a man of rape

A child reports being molested by a relative.

In each case, it's not guaranteed that charges will be filed. But what the public doesn't understand is that there are some very good reasons why prosecutors make the decisions they do, Porter County Prosecutor Brian Gensel said.

Gensel said police officers out in the community make the vast majority of decisions about what to charge a suspect with in lower-level cases. Prosecutors generally go along with the officers' decisions, but prosecutors can add charges, amend charges or decline charges.

With more serious offenses, such as murder and rape, police and prosecutors work together during the investigation and prosecutors eventually decide whether to file charges.

Gensel said the decision of whether of not to charge a person is made based on:

- Whether prosecutors believe the person did the crime,

- Whether there is enough evidence to convince a jury of the person's guilt beyond a reasonable doubt.

In addition to these criminal laws, prosecutors also look at case law, which is what previously happened in the court system with similar cases. If a trucker runs a red light and kills someone, were the trucker's actions criminally reckless according to legal precedent? * * *

Sex crimes constitute the other difficult area for prosecutors, with crimes against children being especially difficult because they have a difficult time testifying and because there is often no witnesses to support their story. Prosecutors hope to have something independent of the child's testimony -- like physical evidence -- to proceed.

Acquaintance rapes also are difficult because of conflicting stories and because drugs or alcohol are often involved. * * *

But there are some cases in which injustices will likely never be crimes, Gensel said. For example, despite multiple instances of truck drivers running red lights and killing people, legislators will still find it hard to make things that almost everyone has done in their life -- like speeding or running a red light -- a crime rather than an infraction.

"Just because the outcome is horribly tragic doesn't mean the behavior that caused it was criminal and that the law needs to be changed to address it," Gensel said.

From the Dec. 8th column, headed "Why there are plea agreements and lenient sentencing."
People often wonder why prosecutors settle cases with plea agreements when they could take the case to trial and try to get the defendant a conviction and more harsh sentence.

But the reason every case isn't taken to trial is that there aren't enough prosecutors, judges or courtrooms to handle such a proposal.

"If 10, 15 or 20 percent (of cases) went to jury trial, the system would collapse," Porter County Prosecutor Brian Gensel said.

Gensel said the plea agreement system works because each side settles on what they believe is fair based on the risks each side would face if the case went to trial. Prosecutors get their conviction and the defendant gets a slightly more lenient resolution.

Gensel noted that if a defendant gets a particularly lenient plea agreement, it's probably because prosecutors had concerns about the strength of their case. Prosecutors could be dealing with a disappearing witness, a witness whose story is changing or a victim who doesn't want to cooperate.

People also don't understand why a person, who seemingly faces decades in prison, might only serve months or years behind bars.

But Gensel said that whenever a person is initially charged with a crime, such drunken driving causing death, the person might face six to 12 separate charges -- something that allows prosecutors to keep their options open.

But what the public doesn't understand is that if a person is sentenced to six years for drunken driving causing death, they can't also get additional time behind bars for the lesser drunken driving charges filed for the same offense.

And just because a person faces a maximum of 20 years for child molesting doesn't mean they will receive the maximum. Judges must weigh aggravating and mitigating factors, and the presumptive sentence is actually 10 years.

In addition, a burglar who faces 20 years in prison for a burglary won't get 300 years in prison for doing 15 burglaries. They will get more time than someone who committed just one burglary, but the system won't "max and stack" prison time upon them, Gensel said.

And once a person is sent to prison in Indiana, he or she can get out in half the time with good behavior, and can cut off additional time by doing things such as taking educational courses.

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Indiana Law

Environment - " Local air quality controls dealt blow"

The Evansville Courier & Press had this story Dec. 2, reported by Mark Wilson. Some quotes:

Evansville officials fear a state decision to cancel its contracts with local air pollution control agencies could be a setback for efforts to improve air quality here.

"Frankly, we were taken by surprise," Mayor Jonathan Weinzapfel said.

The city was not aware the state was going to make the change until it received notice Monday of the decision through a brief letter, Weinzapfel said. But the letter left out details of how the state would replace the services.

"We haven't heard any details on how IDEM will pick up that workload," Weinzapfel said. "My primary concern is not the money. I'm concerned we won't see the attention paid to air and environmental concerns here in Evansville and the surrounding area that we have had."

Weinzapfel said it is still too early to know exactly how the decision will affect the Evansville Environmental Protection Agency or the jobs of the six people employed there.

The approximately $164,000 contract represents about 40 percent of the department's $403,269 annual budget, said Dona Bergman, Evansville EPA director.

The department includes four people to enforce state and local air pollution regulations on behalf of the Indiana Department of Environmental Management.

On Dec. 5th an editorial in the C&P concludes:
The city's expressed concerns are valid.

Evansville sits amid some of the nation's largest coal-burning power plants.

Even though Vanderburgh County has no power plants, it remains out of compliance with federal standards for fine particulate matter — soot.

Consequently, it is important, for both health and economic reasons, that monitoring be timely and oversight be strong. Greater efficiency or not, it is unclear whether the state will provide the manpower sufficient to serve the needs of Southwestern Indiana.

For now, we will reserve judgment and encourage the state to provide Hoosiers with an adequate opportunity for input on this issue vital to their health and welfare.

Today Tim Evans of the Indianapolis Star reports under the headline "Responsibility for all Indiana air-quality issues will shift to state in '09: State officials say '09 move will streamline services, but some fear local problems could get short shrift." Some quotes:
The state will take over all air permitting, monitoring and compliance functions next year, a move that state officials say will streamline government but that some environmentalists fear could lead to less attention to local air-quality issues.

The change will end all contracts with local pollution control agencies in Indianapolis and five other parts of the state. The Indiana Department of Environmental Management announced the decision earlier this month with little input from the agencies or other stakeholders.

"There has been no public discussion about how this work will be done," said Janet McCabe, executive director of the advocacy group Improving Kids' Environment and a former IDEM official.

"I'm very worried that the loss of services will lead to poor air quality and health issues." * * *

The move is part of an effort to streamline permitting, monitoring and compliance functions across the state. Some of that work had been done by local agencies such as the Office of Environmental Services in Marion County, which had contracts with IDEM.

In Indianapolis, that agency provides a variety of environmental services, including air permitting, air monitoring, compliance inspections and air planning in Marion and surrounding counties. The staff also has an enforcement program that conducts year-round inspections, responds to citizen complaints and takes action related to open burning issues, air permit violations, asbestos and industrial pretreatment issues.

The contracts with the local agencies had been paid with federal funds and fees from industries. Elstro said that money now will stay with IDEM to pay for the added work the agency will do because of the changes.

In a statement about the change, IDEM Commissioner Thomas Easterly said: "Having a single permitting, monitoring and compliance authority for Indiana means we can eliminate duplicate government services and provide consistent regulatory oversight for all 92 counties." * * *

Easterly said IDEM "is in a position to further streamline and consolidate statewide services because it has eliminated a backlog of permits, hired and trained staff members, and is implementing a system for the online submittal of air permit applications."

Elstro said he did not know whether the agency would be hiring additional workers or placing the responsibility on existing staff. Elstro also could not say whether the changes would produce any savings.

"Ultimately, IDEM is responsible for air quality in the state of Indiana," he said. "This will bring all of that work back in-house."

McCabe, a former commissioner of IDEM's Office of Air Quality, said she has several concerns about the new approach, including the lack of input from stakeholders, the short time frame for making the switch and the potential for less local attention to problems.

"I'm all for spending money wisely and managing efficiently," she said. "But there are a lot of functions here that are, in my opinion, better done at the local level."

She cited areas such as planning, responding to complaints and working with businesses as examples of the strengths a local agency would have over the state. How those issues will be handled has not been spelled out, she said.

"I would like to see their plan," McCabe said. "I think it is appropriate for a large city like Indianapolis to have its own air agency."

Steven R. Hardiman II, spokesman for the city's Department of Public Works, issued a statement saying: "We are confident that neither the best interests of taxpayers or of our environment will be put at risk as we work toward resolution."

He said the city "is currently involved in positive discussions with the Indiana Department of Environmental Management (IDEM) in reference to the decision to not extend contracts with local air pollution control agencies."

"As a result of ongoing conversations, we are very encouraged that we will be able to work effectively with our state partners to reach an agreement that addresses potential efficiencies that benefit taxpayers and the environment."

Hardiman said the city relies on the IDEM contract to pay for 41 workers in the Office of Environmental Services.

"If we were to lose this funding," he said, "we would be unable to maintain our work force at the current level."

Posted by Marcia Oddi on Wednesday, December 10, 2008
Posted to Environment

Tuesday, December 09, 2008

Law - More on "Feds take Gov. Blagojevich into custody" [Updated]

Updating this ILB entry from this morning, here is the 78-page criminal complaint, thanks to the Chicago Tribune.

[Updated 12/10/08] Some will be interested in this entry from The Volokh Conspiracy, speculating on who the unnamed players in the indictment are. You can use your PDF search box to find the discussion of the various players in the indictment itself, for instance, Senate Candidate 5 is named on pp. 67-68 and 74-75.

The Indianapolis Star today has an editorial headed "Cautionary tale: Tighten rules to head off scandal," which provides in part:

Still, it would be wise for Hoosiers and their elected leaders to view the corruption that has befallen Illinois as a cautionary tale.

The ethics rules guiding members of the Indiana General Assembly are remarkably lax. Lobbyists are allowed to shower legislators with gifts of unlimited value. Frequency also is unrestricted; lobbyists could pick up lawmakers' dining and entertainment bills every night of the week. (Gov. Mitch Daniels has banned executive branch employees from accepting any gifts related to their jobs).

Also, no cooling-off period is in place to slow down a legislator who wants to work as a lobbyist. A lawmaker, while still in office, can line up a job with a lobbying firm, resign and then immediately press for favors from former colleagues. It's a system ripe for an unscrupulous politician or lobbyist to exploit.

Although some Indiana legislators act as if they're beyond any temptation to cash in on their positions, the corrupting nature of power knows no geographic or political boundaries. It's entirely plausible that the types of scandal that have plagued Illinois could happen here.

[More] On the other hand, a story today by Patrick Guinane of the NWI Times begins:
Indiana is led by Governing magazine's Public Official of the Year. Illinois has Public Official A.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to General Law Related

Ind. Decisions - Supreme Court issues two today

In The Indiana Department of Environmental Management v. Raybestos Products Co., an 11-page, 5-0 opinion, Justice Boehm writes:

We hold that an agreed order for environmental cleanup with the Indiana Department of Environmental Management (“IDEM”) is an agency action governed by the Indiana Administra- tive Orders and Procedures Act, not a contract that will support a claim for damages from IDEM. We also hold that IDEM has authority to approve risk-based cleanups, and IDEM’s communications with the federal Environmental Protection Agency did not violate its Agreed Order with Raybestos. * * *

Because the Agreed Order does not support a claim for damages and was not violated by IDEM’s actions, the trial court’s orders denying IDEM’s motions to dismiss and for summary judgment are reversed. This case is remanded with instructions to vacate the judgments in favor of Raybestos and dismiss the complaint for lack of subject matter jurisdiction.

In John C. Roberts, M.D. v. Community Hospitals of Indiana, Inc. , a 14-page, 5-0 opinion, Justice Boehm writes:
Indiana Trial Rule 65(A)(2) allows a trial court to advance and consolidate a trial on the merits with a preliminary injunction hearing. The rule explicitly authorizes this action either “[b]efore or after the commencement of the hearing.” A trial court must ordinarily provide no- tice to the parties when it intends to exercise this authority. Consolidation without notice is not reversible error, however, absent a showing of prejudice, which requires identification of evi- dence that was not adduced at the hearing and might reasonably affect the outcome. Identifica- tion of steps the party might have taken in hopes of producing unspecified new evidence is insuf- ficient where the parties have been afforded reasonable opportunity to develop the facts through discovery or access to relevant witnesses and documents. * * *

The trial court’s consolidation pursuant to Trial Rule 65(A)(2) and entry of final judgment are affirmed.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

Details will follow later today (or not).

For publication opinions today (3):

Samuel L. Gates v. George J. Houston III and Houston Properties, LLC

Jerell Owens v. State of Indiana

Bianca Newgent v. State of Indiana

NFP civil opinions today (3):

Parke County Residential Care Center v. Sarah A. Norman (NFP)

Douglas Manuel v. Thomas Kestler (NFP)

Jane (Morrow) Hazlett v. Daryl Morrow (NFP)

NFP criminal opinions today (12):

John Faux v. State of Indiana (NFP)

Charles R. Ray v. State of Indiana (NFP)

Thomas Scott Smithson v. State of Indiana (NFP)

Emiliano Perez v. State of Indiana (NFP)

Kenneth Angel v. State of Indiana (NFP)

Curtis Chapman v. State of Indiana (NFP)

Christopher Donegan v. State of Indiana (NFP)

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

Brandon Ramon Williams v. State of Indiana (NFP)

Allen Slusser v. State of Indiana (NFP)

Guydell Watson v. State of Indiana (NFP)

Melinda Lindauer v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In Maureen Reynolds v. U.S. (SD Ind., Judge Barker), a 12-page opinion, Judge Rovner writes:

In August 2003 a security guard with General Security Services Corporation stood on the roof of the Minton-Capehart Federal Building in Indianapolis, Indiana—inexplicably naked, alone, and locked out of the building. Later that day Maureen Reynolds, a General Security officer, learned of the incident, but not the nudity, and wrote up a report. The Federal Protective Service (FPS) launched an investigation as well, which culminated in a state prosecution against Reynolds for false reporting. Reynolds’s bench trial resulted in an acquittal. But the state criminal proceedings cost Reynolds her job, so she sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80, asserting that FPS investigators had initiated a malicious prosecution by submitting knowingly false information to the Marion County prosecutor and the Marion County Superior Court. The district court dismissed Reynolds’s complaint for lack of subject- matter jurisdiction, see FED. R. CIV. P. 12(b)(1), citing various grounds, including that the discretionary-function exception to the FTCA shielded the actions of FPS investigators, see 28 U.S.C. § 2680(a). We disagree and remand for further proceedings. * * *

The FTCA to one side, we still must evaluate whether Reynolds has stated a claim for relief under Indiana tort law. See 28 U.S.C. § 1346(b)(1); Parrott, 536 F.3d at 635. In order to prevail on a claim of malicious prosecution in Indiana, a plaintiff must establish that the defendant, acting with malice and without probable cause, instituted or caused to be instituted a prosecution that terminated in the plaintiff’s favor. See City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001); Glass v. Trump Indiana, Inc., 802 N.E.2d 461, 466-67 (Ind. Ct. App. 2004). Probable cause exists if, following some reasonable investigation, a reasonably intelligent and prudent person in the defendant’s position would believe that the accused committed the crime charged. Glass, 802 N.E.2d at 467. “[T]he element of malice,” meanwhile, “may be inferred from a total lack of probable cause, from the failure to make a reasonable or suitable inquiry, and from a showing of personal animos- ity.” Kroger Food Stores, Inc. v. Clark, 598 N.E.2d 1084, 1089 (Ind. Ct. App. 1992). Reynolds has alleged explicitly these elements, and we see no further obstacle to her complaint at this stage. We do not, of course, vouch for the accuracy of Reynolds’s allegations; our holding is merely that she has stated a claim for relief.

For these reasons we VACATE the district court’s dis- missal and REMAND for further proceedings.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Ind. (7th Cir.) Decisions

Law - "Feds take Gov. Blagojevich into custody"

The Chicago Tribune is reporting: "Gov. Rod Blagojevich and his chief of staff were arrested today by FBI agents on federal corruption charges. More details to come."

Also: "Sources told the Tribune that investigators intensified their investigation into Blagojevich amid concerns that the process of choosing a new senator could be tainted."

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to General Law Related

Law - Kentucky Attorney accused of posting bonds

Indiana has bail bondsmen - they are the subject of several earlier ILB entries. Kentucky does not have bail bondsmen, but, as the following lengthy story by Andrew Wolfson of the Louisville Courier Journal makes clear, the practice has continued. The report begins:

He trolled the Jefferson County Jail on weekends, offering to post bail for families desperate to get their loved ones out from behind bars, according to court records.

Then he would ride his bicycle to his home on Main Street, where he would meet his new "clients," unveil bundles of cash wrapped in newspaper and turn the money over in exchange for a fee, former customers have told police.

Today, Louisville defense attorney William O. Ayers goes on trial in the first of two cases in which the commonwealth alleges he illegally operated as a bail bondsman -- three decades after the practice was abolished in Kentucky.

Witnesses are expected to include a Jefferson Circuit Court judge and a defense lawyer, who says Ayers admitted to him he posted bond for a client -- and showed him his bank statement to prove it.

Ayers, 61, also is charged in a third indictment with failing to file income tax returns. He has pleaded not guilty.

Ayers declined last week to comment about his trial, but his legal team -- two well-known attorneys representing him for free as a professional courtesy -- said that while his practice might be unusual, it is not illegal.

A mysterious figure in the courthouse, Ayers has had hundreds of clients, despite having no business listing in the phone book or with directory assistance.

Tall, gaunt and bald, he bears a striking resemblance to the pitchfork-holding farmer in Grant Wood's famous painting, American Gothic, say other attorneys, including his own lawyers.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to General Law Related

Ind. Law - BMV and proof of insurance requirements

The Fort Wayne Journal Gazette has an editorial today that begins:

A column by The Journal Gazette’s Frank Gray describes – once again – the torment of an Indiana motorist over a bothersome law regarding proof of insurance. It’s a requirement that has snagged an untold numbers of drivers in a bureaucratic nightmare, with negligible proof that it has served the state well. Lawmakers should determine whether there is a way to verify coverage without the too-frequent problems that have caused motorists headaches and, in some cases, cost them time and money.

Gray’s column on Sunday related the experience of Kathleen Griffin, whose troubles originated with a simple error on a police accident report and snowballed into suspension of her license. In her case, the Indiana Bureau of Motor Vehicles flagged her records because her insurance policy identified her vehicle as a Chrysler PT Cruiser and the accident report incorrectly called it a Chevrolet PT Cruiser.

But Griffin’s case is far from isolated. There are stories of suspensions resulting from misplaced paperwork, transposed numbers and other issues that don’t get to the source of the problem – identifying and penalizing uninsured motorists.

Requiring proof of insurance is good policy. The state rightly subjects drivers without auto liability coverage to a 90-day suspension or a one-year suspension for a repeat violation within a three-year period. After an accident, a motorist is required to contact his or her insurance company and request that a proof of insurance/crash report be filed within 10 days.

The editorial continues that "But the sheer volume of the task – more than 778,000 forms processed each year, according to the BMV Web site – might be more than the agency should be expected to handle." and recommends that safeguards be installed to prevent "a license suspension for a properly insured driver.."

See the earlier Frank Gray column, "Crash report snafu means woman can't drive," here.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Indiana Law

Law - Utah's Legislative records on archive's Web site

On Dec. 3, an ILB entry headed "Report on the current status of the Indiana statutes on the General Assembly website" concluded:

[Re making the Acts of Indiana available online] How to go back to 1816? Five years ago this looked impossible. That was before Google began its march across the country, scanning all the volumes in major university library collections. Now a number of copies of various years of the Acts of Indiana may be found online, with imprints such as the Stanford Law Library.

For instance, here are the Indiana Acts of 1865. Hopefully, someone from the State Historical Bureau or Supreme Court will be able to coordinate with Google to assemble a complete collection of these invaluable volumes.

Now, from the Salt Lake City Deseret News, this story:
Legislative documents dating back to Utah's inception as a state are now available electronically through the state archive's Web site.

The House of Representatives working bills files, 1896-1989, were added to the archive's digital collections and include nearly 150,000 images from 63 legislative sessions. Senate records from the same period are being microfilmed and, when complete, will provide an expansive and publicly accessible electronic cache of state legislative records.

Complete records from both houses of Utah's Legislature have been archived digitally since 1990.

State archivists have fine-tuned the process of converting the old documents, some of which are hand-written, to digital images.

"Uniquely, this time, we experimented with completing multiple parts of the process one after another for the most efficiency and fastest turnaround," said Gina Strack, digital coordinator for the Utah State Archives.

The newly added records can be found at archives.utah.gov.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to General Law Related

Environment - "Indiana to head Great Lakes protection"

A report today by Christine Kraly of the NWI Times begins:

CHICAGO | On the first day of a federal regulation protecting Great Lakes waters, Indiana Gov. Mitch Daniels' office took the helm Monday of the group that initiated the rule.

In a gathering peppered with self-praise, the myriad of stewards of Great Lakes protection -- hosted by the Council of Great Lakes Governors -- discussed their success in passing the Great Lakes Compact and began work on overseeing the rule.

In part, the compact -- a rule decades in the making approved by the governors of all Great Lakes states and by the premiers of Ontario and Quebec and signed by President Bush -- protects Great Lakes water from being diverted outside of its basin.

Daniels was named chair of the council's regional body and vice chair of the Great Lakes Compact Council, the panel charged with administering the compact.

David Pippen, Daniels' proxy on the regional body, will assume the chair role as Daniels' continued representative.

"We're really excited," said Pippen, Daniels' environment and natural resources policy director.

Pippen said he hopes both panels will continue the Hoosier state's success in engaging "the cooperation of very disparate interests" -- from industry to environmentalists -- in protecting the lakes.

As regional chair, Pippen also will be appointing the head of a subgroup that may advise the compact council on how to determine whether an entity is allowed an exception to the diversion ban.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Environment

Ind. Decisions - "Billboard company loses battle with county"

Yesterday's NFP opinion by the Court of Appeals in the case of View Outdoor Advertising v. Porter County Board of Zoning Appeals (see ILB summary here, 3rd case) is the subject of a story today by Ken Kosky in the NWI Times:

VALPARAISO | A billboard company that wanted to place four billboards along U.S. 30 in Porter County has lost another court battle with the Porter County Board of Zoning Appeals, which denied the billboard company the special exceptions it needed.

The billboard company, View Outdoor Advertising, LLC, challenged the BZA at the trial level, but Porter Superior Court Judge Roger Bradford sided with the BZA.

And on Monday, the Indiana Court of Appeals affirmed Bradford's decision, saying it was "not arbitrary and capricious."

The appeals court wrote, "On appeal, View Outdoor contends that the agency's decision was based upon improper considerations and that several of the BZA's findings were not supported by substantial evidence and explanations by the BZA. We conclude that aesthetics, the impact upon adjacent properties' values and the side of a proposed billboard are all appropriate considerations for the BZA when ruling on petitions for special exceptions and are supported by sufficient evidence and explanation."

Porter County has a "U.S. 30 Overlay Zone" which consists of 600 feet on both sides of U.S. 30 through all of Porter County. According to court documents, the purpose of the overlay zone is to preserve the aesthetic qualities of the properties bordering U.S. 30 and to "promote and protect the public health, safety, comfort, convenience and general welfare by providing for consistent and coordinated treatment of the properties."

A builder must obtain a special exception from the BZA to erect a billboard in the zone.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Dec. 5, 2008

Here is the transfer list for the week ending Dec. 5, 2008. It is four pages long.

(Although the ILB just received the list a few moments ago, it looks like it was emailed yesterday at 1:54 PM and was lost in cyberspace during the interim.)

Two transfers were granted last week:

Robert Rovai v. Ann Marie Rovai - see the ILB summary of the August 4th opinion here - 2nd case. Deals with distribution of the marital assets and liabilities

Christopher Bailey v. State of Indiana - see the ILB summary of the Sept. 19th opinion here - 3rd case:

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

Because Bailey’s behavior was not “tumultuous,” we reverse his conviction of disorderly conduct.

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, December 09, 2008
Posted to Indiana Transfer Lists

Ind. Law - Legislative committee to consider what statutes should be in Indiana Code

The Indiana Code Revision Commission will be meeting this afternoon at 1:30 PM. On its agenda is one bill, PD 3770, prepared by the LSA for the 2009 General Assembly. This bill is intended to respond to issues that have been raised about including all the substantive law of the State in the Indiana Code.

For background, see this Sept. 20th ILB entry.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Indiana Law

Ind. Law - More on: "Smiling, glasses and hats taboo for driver's license photos"

Updating ths ILB entry from yesterday, Lesley Stedman Weidenbener reports today in the Louisville Courier Journal:

The Bureau of Motor Vehicles has imposed new restrictions on anything -- from smiling to wearing glasses and scarves and hats -- that would hamper facial recognition software from distinguishing one driver's looks from another's.

"The technology looks at the permanent physical features of the face," BMV spokesman Dennis Rosebrough said. "Because people smile differently, it can in effect distort the photograph. A straight-faced photograph enhances the effectiveness of the technology."

About 20 other states -- including Kentucky -- use facial recognition technology to detect fraud in driver's licenses. But not all states are as restrictive as Indiana.

Kentucky law prohibits drivers from wearing sunglasses or any clothing that obstructs the face but says nothing about smiles or prescription glasses. It leaves the final say on photos to circuit court clerks, who issue the licenses.

The most interesting part of the story is what is being done with the new BMV photos:
The systems work by checking new license photos against others in the states' databases. Rosebrough said the systems are looking for people using multiple names or the same name but different photos.

"If there's a mismatch, the software will pop up with an exception, and then we'll begin the process of examining it," he said.

* * * Indiana started the program Nov. 18, when it installed new branch cameras that self-center the photos and assist with the recognition software.

So far, Indiana officials say they are getting 500 to 600 hits a day, which amounts to a sort of preliminary match from the computer system that raises questions about a photo. Rosebrough said that's a manageable number and that the vast majority of issues are resolved quickly.

Posted by Marcia Oddi on Tuesday, December 09, 2008
Posted to Indiana Law

Monday, December 08, 2008

Ind. Decisions - Transfer list for week ending Dec. 5, 2008

The ILB hasn't received any information yet for last week.

Posted by Marcia Oddi on Monday, December 08, 2008
Posted to Indiana Transfer Lists

Ind. Courts - Still more on "State's high court hears school funding challenge"

Updating this ILB entry from Sunday, the Fort Wayne News-Sentinel has an editorial today taking a contra view on the school finance case argued last week before the Supreme Court. It is headed "School funding lawsuit is asking for the impossible: Who can say what is “adequate” spending for a “fair” chance?"

It's hard to figure out exactly what the Indiana State Teachers Association is looking for in the lawsuit it is coordinating against the state, or how any of us will know if and when it is achieved, whatever it is. It's an unfortunate suit that will waste a lot of time and energy without solving any education problems.

The suit was filed in 2006 on behalf of nine children and their families because the children didn't have a “fair chance” to learn. A Marion County judge initially dismissed the suit, saying it improperly sued the governor and superintendent of public instruction instead of the legislature. The Indiana Court of Appeals reinstated the case, saying the state has a duty to provide students with broad educational opportunities. The state Supreme Court is considering the case's merits.

Attorney Michael Weisman, representing the plaintiffs, told the court last week that it might not be a matter of how much money the state spends, but how it is spent - to ensure that the state “adequately” funds education so mandated academic standards can be achieved. But the suit claims that the state is violating its own constitution by failing to provide “enough” money for all children to have a fair chance to learn.

So which is it - the amount of money doesn't matter, or it does? And how do we determine how much is enough? As Justice Robert Rucker noted, there have been instances in many states where increased funding did not lead to improvements in education. “Why is that the solution?” he asked.

If that isn't the solution, what is? How do we determine if the money being spent, whatever the amount, is being “properly” spent?

We can do that only by studying the results, right? The state sets standards, and if enough students don't meet them, then something is wrong, so the courts will order - what, exactly? More money to be spent? The money to be spent differently? Changing the standards? Sometimes the governor, the legislature and the superintendent of public instruction do not seem to do the right thing in education. But does anyone really think the courts can do a better job or should even be involved?

The Supreme Court should dismiss this whole thing because it is the epitome of a “frivolous lawsuit” in asking for something that cannot possibly be delivered.

Posted by Marcia Oddi on Monday, December 08, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Tommy D. Alvey v. State of Indiana , a 9-page opinion, Judge Najam writes:

Tommy D. Alvey appeals from the trial court’s order denying his pretrial motion to suppress following a “conditional guilty plea” in which Alvey and the State agreed that Alvey had reserved his right to appeal the court’s order. Alvey raises three issues for our review. However, we address only the following dispositive issue: whether Alvey may challenge the court’s denial of his motion to suppress now that he has pleaded guilty. We affirm. * * *

On November 28, Alvey entered into a plea agreement with the State. In that agreement, Alvey agreed to plead guilty to dealing in methamphetamine, as a Class B felony, and carrying a handgun without a license, as a Class A misdemeanor. In exchange, the State agreed to dismiss the remaining charges. Alvey agreed to leave sentencing open to the trial court’s discretion. However, he expressly “reserve[d] the right to appeal the Court’s ruling [o]n the motion to suppress, and the State does not object.” Alvey then acknowledged that “the entry of my guilty plea pursuant to this agreement . . . constitutes an admission of the truth of all facts alleged in the Information . . . to which I plead guilty . ..”

On January 30, 2008, the trial court held a hearing on Alvey’s guilty plea. At that hearing, the court expressly informed Alvey that he was permitted to appeal the court’s decision on his pretrial motion to suppress despite his admission of guilt. * * *

Alvey’s plea forecloses his right to challenge the pretrial motion to suppress, and we must affirm the trial court’s entry of judgment of conviction against Alvey.

NFP civil opinions today (4):

Muriel Hillsamer, et al. v. Sun Trust Bank, et al. (NFP) - "The Estate of David E. Hillsamer (“the Estate of David”), by his widow and personal representative Muriel C. Hillsamer, appeals the trial court’s grant of summary judgment in favor of Sun Trust Bank as trustee of the Reita R. Hutchins Trust, Connie Rautenkranz, Patricia Spahn, and Re/Max Realty. An agreement three siblings entered into in 1974 regarding ownership of approximately 150 acres of land in Monroe County, Indiana, limits the exercise of an option to purchase that land to the siblings while they were alive. The siblings are now dead. Accordingly, the estate of one of those siblings cannot now exercise his option to purchase the land. We therefore affirm the trial court. "

View Outdoor Advertising v. Porter County Board of Zoning Appeals (NFP) - "View Outdoor Advertising, LLC (“View Outdoor”), appeals from the trial court’s affirmance of a decision of the Porter County Board of Zoning Appeals (“BZA”) denying it special exceptions for four billboards. On appeal, View Outdoor contends that the agency’s decision was based upon improper considerations and that several of the BZA’s findings were not supported by substantial evidence and explanations by the BZA. We conclude that aesthetics, the impact upon adjacent properties’ values, and the size of a proposed billboard are all appropriate considerations for the BZA when ruling upon petitions for special exceptions and are supported by sufficient evidence and explanation. We also conclude that the BZA’s consideration of the impact of one of the billboards upon public safety was based upon sufficient evidence. We therefore affirm. "

Phillis Coppock v. Truman Coppock, Jr. (NFP) - "Former wife, Phyllis Coppock (“Phyllis”), appeals the trial court’s order that granted a motion to correct error filed by former husband, Truman Coppock, Jr. (“Truman”). Phyllis raises the following restated issue: whether the trial court erred when it reversed its prior order allowing Phyllis to begin receiving her interest in Truman’s pension benefits, despite the fact that Truman had not yet retired. We affirm. * * *

"Here, Judge Embrey expressly addressed and ruled on the issue of whether Phyllis could begin receiving her share of Truman’s retirement benefits prior to Truman’s retirement twice and determined on both occasions that, according to the terms of the divorce decree, Phyllis would not begin receiving her share of Truman’s benefits until Truman retired. Phyllis did not appeal these two previous decisions. Because the issue at hand has been decided, more than once, in earlier proceedings between the same parties, res judicata precludes Phyllis from relitigating it.

"In closing, we acknowledge that equities may support Phyllis’s request. As Judge Spahr remarked, “Ma’am, you have to wait until he dies or retires. It’s not fair, is it? It’s not fair. And you [Truman] can continue to work and I’m proud of you for working but if all it takes is a signature on a, on a QDRO that will allow her to have access to a cash flow, . . . then I wonder about why you would remain so adamant. But I can’t change it.” Tr. at 22. “I can’t change anything without an agreement signed by both parties.” Id. at 21.

"Phyllis’s remedy was to appeal Judge Embrey’s earlier rulings. Accordingly, the trial court’s decision to grant Truman’s motion to correct error was not an abuse of discretion."

In the Termination of Parent/Child Rel. of D.H. (NFP) - "In sum, we conclude that Harris has demonstrated prima facie error in the trial court’s application of the best interests requirement, as well as its conclusion that the conditions that caused D.H.’s removal will not be remedied. While we are mindful of Harris’s past frailties, we are also mindful of the sweeping and permanent effect of a parental termination order. Accordingly, we reverse the trial court’s termination order and remand to the trial court for further proceedings consistent with this decision. Reversed and remanded. "

NFP criminal opinions today (10):

Harry Paxton v. State of Indiana (NFP)

Jacsean P. Thomas v. State of Indiana (NFP)

Joseph A. Ruthrauff v. State of Indiana (NFP)

Steven Cook v. State of Indiana (NFP)

Jeremiah McCoy v. State of Indiana (NFP)

Brent G. Rosenbaum v. State of Indiana (NFP)

Reyel Tarver v. State of Indiana (NFP)

Frank Burrello v. State of Indiana (NFP)

Robert Lee Shorter v. State of Indiana (NFP)

Reyes Manuel Maldonado, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - "It's the law" today reports "Smiling, glasses and hats taboo for driver's license photos"

Ken Kosky's always interesting "It's the Law" column in the NWI Times this week focuses on BMV photos, with some surprising information:

Don't flash a toothy smile, don't wear your glasses and don't wear a hat or head scarf while you're getting your photo taken for an Indiana driver's license or identification card.

The Indiana Bureau of Motor Vehicles last month rolled out a new set of rules governing how people must be photographed on their driver's license photos.

No, the rules aren't designed to make driver's license photos -- which already had a reputation for being unflattering -- even worse.

Rather, the BMV is making the photographs uniform so their facial recognition software can be its most effective in spotting fraudulent license applications.

A person's new photograph will be compared against old photographs on file -- more than 6 million dating back at least eight years -- to protect customers from identity fraud, said Rod Stiver, BMV commissioner.

"We take very seriously our responsibility to help protect the personal identity of Hoosiers, and the employment of this innovative technology is yet another important step forward in doing just that," Stiver said.

BMV Communications Director Dennis Rosebrough said if a criminal went to get a driver's license under his name, the criminal's photograph would be compared to an old photograph of Rosebrough and the BMV could be alerted the next day that the two don't match.

Rosebrough said the new technology is just an advancement of what the BMV already was doing. BMV employees always have looked at the old photo of a person to see if it looked like the person seeking a new license.

The facial recognition software might raise privacy issues, Rosebrough acknowledged. The BMV could give police a photo of a wanted person and that person could be arrested going through an airport where facial recognition software is used.

But Rosebrough said the BMV has long cooperated with law enforcement to provide photos and information that leads to arrests.

The bottom line, Rosebrough said, is that in this day of identity theft and fraud, "We believe it's our responsibility to assure all Hoosiers the credentials we issue ... are as accurate as possible." He said Indiana is one of about 20 states using the technology.

Rosebrough said BMV customers can petition to leave on headdresses in photographs for religious reasons and can petition to have a nonphoto license or identification card. Overall, the rule changes have been implemented without a hitch.

"We've really had minimal issues," Rosebrough said.

"If people understand why we're doing something, our experience is the great, great majority of our customers say 'fine, we get it.' "

Posted by Marcia Oddi on Monday, December 08, 2008
Posted to Indiana Law

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

Updating a long list of earlier ILB entries on red light cameras is this story today in the Lafayette Journal Courer, by Curt Clyder, whose story today begins:

Janie Amstutz has lived on South 23rd Street, within eyesight of the nearby busy intersection of Kossuth and Main streets, for 14 years.

That's the same intersection where Lafayette officials set up a one-day test last spring of a camera designed to record vehicles running red lights.

Used in other states, but not yet in Indiana, these red light cameras allow traffic officials to mail tickets to the registered owners of vehicles caught running red lights. Such cameras usually photograph the vehicles' license plates to identify them.

Recording traffic over a 24-hour period heading southeast on Main Street, toward Tippecanoe Mall, the camera caught 135 vehicles doing some type of red light violation. That's significant since Lafayette police issued 368 tickets for such violations over a 16-month period from January 2007 to June 2008.

"That was surprising," said Sgt. Max Smith, of the department's traffic division. "I didn't expect that many blatant violations."

Amstutz, however, was not surprised. "I see a lot of that."

Indiana Attorney General Steve Carter said such cameras are not allowed in Indiana until the General Assembly passes legislation clearing the way for municipalities to install them. But a couple of local legislators have said such legislation is possible in 2009.

Posted by Marcia Oddi on Monday, December 08, 2008
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Dec. 11th:

9:00 AM - Scottie Adams v. State of Indiana - After a witness claimed to be afraid to testify, the St. Joseph Superior Court denied Adams' motion for mistrial but admonished the jury to disregard the statement. Adams was convicted of voluntary manslaughter and other offenses. The Court of Appeals affirmed in Adams v. State, (Ind. Ct. App. 7/25/2008), vacated. [Here is the ILB summary of the COA opinion.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Adams: Thomas P. Keller, South Bend, IN. Attorney for State: Monika Prekopa Talbot, Indianapolis, IN.

9:45 AM - Jeffrey A. Graham v. State of Indiana - Graham was convicted of resisting law enforcement and other offenses in the Bartholomew Superior Court, and the Court of Appeals affirmed, finding there was sufficient evidence to support the conviction. Graham v. State, (Ind. Ct. App. 7/24/2008), vacated. [Here is the ILB summary of the COA decision - 3rd case.] The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney For Graham: Donald J. Dickherber, Columbus, IN. Attorney for State: Ian McLean, Indianapolis, IN.
[NOTE: Scroll to the end of this entry for links to the documents in this appeal. I hope this marks the start of a trend of briefs on transfer being sent to the ILB.]

10:30 AM - Gary Community School Corp. v. Tom Powell - The Lake Superior Court entered a judgment for Powell on his complaint against the Gary Community School Corporation under the Family Medical Leave Act. The Court of Appeals reversed after concluding that Powell, a full-time teacher, was not eligible for protection under the FMLA with regard to his part-time coaching position at the school. Gary Cmty. Sch. Corp. v. Powell, 881 N.E.2d 57 (Ind. Ct. App. 2/19/2008), vacated. [ILB summary of the COA decision here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. For Appellant: John P. Reed, Hammond, IN. Gregory S. Reising, Gary, IN. For Appellee: Anna M. Hearn and Thomas F. Macke, Valparaiso, IN. For Amicus Curiae, National Employment Lawyers Association: Tae Sture, Indianapolis, IN.

Webcasts will be available here.


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

None scheduled.

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

This Thursday, Dec. 11th:

1:00 PM - William Cornett vs. State of Indiana - William Cornett appeals from his conviction of Class B felony robbery, for which he received a sentence of fifteen years of incarceration. Cornett claims that the trial court erred in denying his motion for mistrial, which he made after the jury heard argument that police attention became focused on him following an anonymous tip that he had committed the crime in question. Second, Cornett contends that the trial court engaged in impermissible communication with the jury without consulting his trial counsel first. Third, Cornett contends that the trial court abused its discretion in admitting a videotape of the robbery in question, as it was allegedly insufficiently clear. Finally, Cornett contends that the trial court failed to properly instruct the jury on the definition of a deadly weapon and that the jury had the right to decide the law and the facts. The Scheduled Panel Members are Chief Judge Baker, Judges Crone and Bradford. [Where: Terre Haute South High School, Terre Haute, Indiana]
__________

Jeffrey A. Graham v. State of Indiana documents:

1. Court of Appeals opinion

2. Petition to Transfer (note: no response to transfer filed by the State)

3. Notice of Additional Authority

4. Briefs in the Court of Appeals:

a. Appellant's Brief
b. Appellee's Brief
c. Appellant's Reply Brief

Thanks for the above to Joel Schumm of the IU-Indianapolis Law School, who writes:

Although Don Dickherber did all the briefing, the Appellate Clinic at the Indiana University School of Law-Indianapolis will be representing Mr. Graham at oral argument. Third-year law student Jonathan Bont will do the initial argument, and I'll be doing rebuttal.

In short, Mr. Graham was convicted of resisting law enforcement for not giving his hands to police officers who sought to handcuff him. The argument will focus on the requirement of "forcibly" resisting.

Posted by Marcia Oddi on Monday, December 08, 2008
Posted to Upcoming Oral Arguments

Sunday, December 07, 2008

Ind. Courts - More on "State's high court hears school funding challenge"

The Bedford Times-Mail has an editorial today on the school finance case argued earlier this week before the Supreme Court. The title: "School funding question requires answer." Some quotes:

In a week when the latest ISTEP results were released to the public, the Indiana Supreme Court took up a timely argument on school mandates, student performance and education funding.

The merits of the case are not before the courts — yet. At issue last week was whether the case can even proceed.

Our hunch is this case ought to have its day in court. We say that because the case raises questions that educators in Lawrence County and surrounding communities have been asking for years.

Here’s the background, according to an Associated Press report. * * *

Thursday — the day ISTEP scores were released — the matter went before the Indiana Supreme Court.

It could be months before the court rules on the case. And, no doubt, there is much to consider.

We are no fan of lawsuits. But we hope this one is allowed to proceed.

This lawsuit could finally address that issue raised by local educators, who say they struggle to meet state mandates without accompanying state funding.

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Indiana Courts

Environment - "IDEM parses news reports for governor"

That is the headline to this story today in the Gary Post-Tribune by their environmental reporter, Gitte Laasby. The story begins:

The Indiana Department of Environmental Management has been updating Gov. Mitch Daniels' office on media coverage of IDEM up to four times a week, labeling stories as positive, negative and neutral.

And the the governor's office refuses to comment about why it receives the reports.

The Post-Tribune obtained the e-mail updates under a public information request.

Out of 12 news items labeled negative in the updates, seven were articles or opinion pieces from the Post-Tribune relating to BP's expansion and IDEM's handling of permits.

The articles labeled negative were about appeals of BP's air permit; IDEM's refusing to release public records; residents being worried about manure gas from a farm; and IDEM's frequent communication with Duke Energy around the time of an air permit hearing for the company's new Edwardsport plant.

The Post-Tribune asked the governor's office whether it gets similar updates from other state departments; whether the updates were sent at the request of the governor's office; whether the governor's office requested news articles to be categorized; and what the purpose of the reports is.

The governor's office refused to respond to any of the questions.

A second story today by Ms. Laasby begins:
The Indiana Department of Environmental Management still refuses to release calendar items showing when meetings were held to discuss BP Whiting's air permit. But the agency has added a new explanation for the denial.

The Post-Tribune requested copies of calendars that show when IDEM employees met internally or with Gov. Mitch Daniels' office, the U.S. Environmental Protection Agency and BP regarding the permit.

IDEM first denied the request saying the calendars were exempt from public access because they were attorney-client or "deliberative" communications.

The Post-Tribune objected in a letter, saying a notice of a meeting is not an attorney product, deliberative or an expression of opinion.

In a response, IDEM did not address the Post-Tribune's objections, but changed its justification for denial.

"Pursuant to Indiana Code ... an agency may withhold diaries, journals, or other personal notes serving as a functional equivalent of a diary or journal," IDEM's Assistant Commissioner Robert Keene said in a letter. "In addition to the legal justifications cited in previous correspondence, your request is denied because calendar entries serve as the functional equivalent of a diary or journal."

To support his case, Keene quoted two opinions of the Indiana public access counselor in similar cases.

But Steve Key, general counsel with the Hoosier State Press Association, disagreed that a calendar can be considered the equivalent of a diary or journal.

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Environment

Ind. Law - "Indiana law keeps victim's father from suing 911"

Ed Ronco of the South Bend Tribune reports today:

NILES — During Tonya Goble-Studer's 911 call to LaPorte County authorities more than two years ago, she told a dispatcher that her husband was threatening to kill her, would be back soon, and that she needed a police officer's assistance.

The 911 dispatcher told Goble-Studer, who was 23, that for an officer to be sent, there had to be an "immediate threat."

"Ma'am, the officer cannot stand there and just wait just in case your husband comes back," the dispatcher said, according to a transcript of the 911 call.

Not long after, Goble-Studer and her mother were dead — killed by Goble-Studer's husband after she fled LaPorte County up to her mother's home in Michigan.

Her father, Al Goble, has tried to sue LaPorte County for not sending an officer when his daughter requested help. But he says attorneys have told him there's one big thing standing between him and the courthouse door: Indiana law.

County governments in Indiana are immune from civil cases that result from 911 service.

That law was put in place to limit counties' liability as they implemented enhanced 911 services.

And it's been backed up by the Indiana Supreme Court, which in 2007 upheld a lower court ruling in a 911 case involving Brown County.

The county had been sued by Annette Giles, a woman who said her husband died because an ambulance was not dispatched in a timely manner. The Supreme Court agreed that judgment in Brown County's favor was proper because of the immunity written into the law.

A case against the hospital that owned the ambulance is still at the trial court level.

Landyn Harmon, a Columbus attorney who represents Giles, said that case and what happened in LaPorte County are different.

"There has always been a tradition in our law holding the government immune for failing to enforce the criminal law, for failing to protect one citizen from another," Harmon said.

The protection frustrates Goble, who keeps clippings of news articles about his daughter's murder and the trial of Gary Studer, his former son-in-law.

"There's nothing I can do," he said. "My hands are tied."

Here is a link to the ILB summary of the June 25, 2007 Supreme Court decision in the case of Annette Donica Giles v. Brown County, Indiana, By and Through Its Board of Commissioners. The statute cited is IC 34-13-3-3(19).

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Indiana Law

Environment - Great Lakes Compact set to go into effect Monday

That according to this story today by Lauri Harvey Keagle of the NWI Times.

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Environment

Ind. Law - Even more on "Approving a proposed constitutional amendment that would put limits on property-tax bills, so it can be put on the ballot for ratification in 2010"

Updating earlier ILB entries on the proposed constitutional amendment to top property taxes (the most recent ILB entry, from Nov. 30th, is here), Niki Kelly of the Fort Wayne Journal Gazette has a lengthy, informative article today that looks at the current tax cap proposal, but does so in the context of a history of the 1851 document and the changes made to it over the years. Don't miss it. The report begins:

The 1851 Indiana Constitution goes on public display in its simple but sophisticated elm case Thursday – Statehood Day – and remains there until the 2009 legislative session concludes in April.

The document has been altered – through amendment or repeal – about 100 times in more than 150 years.

Lawmakers file dozens of proposed constitutional amendments every year such as protecting the right to hunt and defining marriage. But largely because of a lengthy process and Hoosiers’ generally conservative nature, most fail.

When legislators return Jan. 7, there will be at least one more key battle to amend the timeless document by placing property tax caps into the language.

“As wise as the framers were, they could not anticipate changes in time, and they were also constrained by the morals of the time,” said David Orentlicher, a professor at the Indiana University School of Law in Indianapolis. “We need to be able to evolve. The amendment process is an important check in our system of checks and balances.”

And after decades of legislators “fixing” the property tax system only to see it backslide years later, supporters of permanent property tax caps want those caps enshrined in the Indiana Constitution.

“It’s crucial that we put them in, and I think we need to move decisively,” said Senate President Pro Tem David Long, R-Fort Wayne. “I think the enemies of property tax reform want to scuttle it, and their goal is to stretch it out as long as they can.”

This year legislators put into state law a system that limits property tax bills to a certain percentage of the property’s assessed value.

Homeowners’ property tax bills were limited to 2 percent of their assessed value this year; 1.5 percent in 2009; and 1 percent in 2010.

There is a similar phase-in for rental and commercial properties, ultimately ending at 2 percent and 3 percent, respectively, in 2010.

These caps will save taxpayers more than $650 million in 2010, but that is also money schools and local governments won’t receive to fund services.

The next step other than placing the caps into law is to put them in the Constitution. Long said this is needed for two reasons: to head off a possible lawsuit alleging the caps violate the Indiana Constitution’s requirement of a general and uniform property tax system; and to limit the ability of future lawmakers from changing the caps.

“It prevents future legislatures from knuckling under the pressures that inevitably will be brought to bear from local government,” Long said, noting that the 1973 property tax overhaul slowly eroded over time because of exceptions and changes to the law brought about by local government complaints.

Lawmakers took the first step in the amendment process – passing a joint resolution in the 2008 legislative session to add the caps to the Indiana Constitution.

But according to the Constitution, the resolution must be passed again by a separately elected General Assembly. This can happen in either 2009 or 2010. Hoosiers would then get to vote on the change in 2010.

Since it wouldn’t delay the process to wait until the 2010 legislative session, Democrats are moving cautiously. They hope to see the effect of the caps in 2009 and early 2010 before voting on the resolution a second time.

“As a general rule, putting limiting numbers in a Constitution can be very dangerous in the long run. It’s high risk,” said Rep. Win Moses, D-Fort Wayne. “It is my very strong opinion that we need to let the effects percolate.”

Using specific numbers in the Constitution caused a problem involving the Indiana Supreme Court. The court used to have direct appeal jurisdiction over any prison sentence longer than 50 years.

In 1995, legislators increased the base sentence for murder to 55 years, sending dozens more cases directly to the Supreme Court for review. As a result, in 2000 voters chose to amend the Indiana Constitution to remove the provision about sentences in excess of 50 years.

“The Constitution is what the people adopt,” said Jon Laramore, an Indianapolis attorney and constitutional scholar who used to teach a course about the Indiana Constitution. “If they choose to adopt something specific that is fine. But in the case of very specific proposals we need to be very careful because we are locked into those – not forever – but at least for several years.”

But Gov. Mitch Daniels doesn’t buy the argument, using strong language last week to point out that Democrats passed the resolution in 2008, an election year.

“Every taxpayer ought to worry about a double-cross,” he said. “The legislature should simply live up to what it did just a few months ago and take the second step.”

If lawmakers do pass the resolution, the decision will be in the public’s hands in November 2010. In recent years most amendments sent to the public have passed.

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Indiana Law

Legislative Benefits - More on: "Miller to seek lobbying curbs again" [Updated]

Updating this ILB entry from Nov. 23rd, the Indianapolis Star has an editorial today headed "No offense, guys, but you work for us," that begins:

How do citizens apply constructive pressure to their elected representatives without hurting their feelings?

That's the absurd challenge facing Common Cause Indiana and other groups and individuals as they prepare to approach the Indiana General Assembly again this year for lobbying reform.

A bill last session from state Sen. Patricia Miller, R-Indianapolis, seemed on its way to a floor vote until legislators became so incensed by public criticism at a committee hearing that the whole affair collapsed in acrimony.

"We'll be more understated this time," says Julia Vaughn of Common Cause Indiana, who nevertheless finds it appalling that public servants "bawled out John Q. Citizen."

We agree. We also suspect the show of indignation was just that. If the legislature wants more respect, it can earn it by joining a nationwide movement to curb the cozy relations between lawmakers and special-interest lobbies.

Miller's bill, expected to be introduced in the coming session, simply requires a one-year "cooling off" period between the time a legislator leaves office and when he or she returns to hit up ex-colleagues as a lobbyist. The so-called revolving door has spun so freely here that the General Assembly has been likened to a training camp for future favor-seekers. The Daniels administration has imposed a waiting period for executive branch employees who become lobbyists, but the example hasn't taken hold.

[Updated 12/8/08] Mike Smith of the AP reports today in a story that begins:
A bill that would require legislators who leave office to wait at least one year before they could become lobbyists got a chilly reception in a Senate committee last session and went no further.

That isn't stopping Republican state Sen. Patricia Miller of Indianapolis, some of her colleagues and some citizen groups from trying to revive the issue in the session that starts in January. They say a "cooling off" period before former lawmakers can lobby the General Assembly would establish a more trusting relationship with Indiana residents.

Nearly 30 states prohibit former legislators from becoming lobbyists for a time ranging from six months to two years after they resign or retire, according to the National Conference of State Legislatures. But Miller and other supporters of the concept know they'll likely have a tough time getting Indiana to join those states.

Efforts to regulate the career paths of Indiana lawmakers have routinely been thwarted, and now about two dozen former legislators lobby the General Assembly, including three former House speakers.

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Legislative Benefits

Ind. Decisions - "Firm favored in work-release suit"

The Court of Appeals opinion Friday in the case of Christine Sandage and Arthur Shofner v. The Board of Commissioners of Vanderburgh Co., Indiana, et al. (see ILB summary here - 3rd case) is the subject of a story today in the Evansville Courir & Press, reported by Bryan Corbin. Some quotes:

INDIANAPOLIS — A state appeals court has sided with an Evansville parking business in a lawsuit filed in connection with the deaths of three people killed by a man on work-release in 2005.

The Indiana Court of Appeals on Friday agreed with a Vanderburgh Circuit Court ruling to dismiss the lawsuit filed against Porter's Parking Area Maintenance LLC.

The suit was brought by the families of Sheena Sandage-Shofner and Alfonzo Small, who were fatally shot April 22, 2005, along with a third victim, Tara Jenkins.

The gunman, Travis Moore, then committed suicide.

Moore, who was serving time for a robbery conviction in Vanderburgh County's work-release program, was employed by Porter's Parking, cleaning parking lots. He left his third-shift job that night; and rather than returning to the county work-release complex as required, Moore broke into Sandage-Shofner's apartment on North First Avenue and shot the victims before turning the gun on himself. A fourth man, Lucas Hensley, jumped out a window and survived.

Families of two of the victims had sued the Vanderburgh County Commissioners and sheriff's department separately in federal court. They alleged that county officials were negligent in not revoking Moore's work-release privileges after Sandage-Shofner anonymously reported twice to authorities that Moore was harassing her. That federal suit was dismissed, however, and on Nov. 24, the U.S. 7th Circuit Court of Appeals in Chicago affirmed the lower court's dismissal. [See ILB summary of 7th Circuit opinion here.]

The outcome was similar Friday for the lawsuit the families brought in state court against Porter's Parking, alleging the company was negligent in its supervision of Moore. The company denied negligence, arguing it had no duty to protect third parties from criminal acts of a work-release employee acting outside the scope of employment.

The company sought to dismiss the lawsuit, the Vanderburgh County court granted that request in January, and the plaintiffs appealed.

The state appeals court judges agreed, finding no evidence that Porter's Parking was responsible for returning Moore to the county work-release complex.

Posted by Marcia Oddi on Sunday, December 07, 2008
Posted to Ind. App.Ct. Decisions

Saturday, December 06, 2008

Courts - Juror questionaires in the news

Those interested in the lengthy Nov. 26th ILB entry headed "Courts - RI paper asks high court to make juror questionaires public," make also want to read this entry in the Blog of Legal Times, headed "Two Jurors Lied on Questionnaires, Stevens’ Lawyers Say." A quote:

[Alaska Sen. Ted] Stevens’ lawyers contend two jurors—who are not named in the motion—made “multiple statements” that the defense team now believes are not true. Seems there was some intense post-trial investigation. The questionnaires—and the evidence the defense lawyers believe proves the jurors lied—were filed under seal with the court today.

“Knowing false statements on juror questionnaires call into question the juror’s ability to listen to the evidence, not consider extrinsic facts, follow the court’s instructions, and sit in judgment of the defendant’s truthfulness,” defense lawyers write. False statements about jurors’ involvement in the criminal justice system “raise particular concerns in this case because jurors may associate or blame their personal experiences on government officials, including politicians like Senator Stevens.”

Posted by Marcia Oddi on Saturday, December 06, 2008
Posted to Courts in general

Environment - More on: "At the Last Minute, a Raft of Rules"

"Last-minute rule changes" is the heading of an editorial today in the Fort Wayne Journal Gazette.

And on NPR's Weekend Edition this morning, a report titled "Mining-Rule Change Creates Tremors In W.Va" by Scott Finn. Read it or listen to it here.

Posted by Marcia Oddi on Saturday, December 06, 2008
Posted to Environment

Ind. Decisions - "Court backs dismissal of Flying J plaza suit"

Reporting today on yesterday's 7th Circuit decision in the case of Flying J Inc. v. City of New Haven, Rebecca S. Green of the Fort Wayne Journal Gazette writes:

The U.S. Court of Appeals upheld the dismissal of a lawsuit filed by a convenience store chain against the city of New Haven.

Just more than a year ago, attorneys for the Utah-based Flying J Inc. sued New Haven in U.S. District Court, alleging the city had engaged in an orchestrated campaign to keep the company from building a 17-acre travel plaza on the northeast corner of Minnich Road and Indiana 930.

The company bought the 53-acre property just west of Interstate 469 and intended to build a Flying J Travel Plaza, as well as other retail, commercial and professional services – including a convenience store, country market store, 24-hour restaurant, fast-food court, fuel pumps, restrooms and 24-hour parking for up to 11 recreational vehicles and 187 trucks.

When the company bought the property, the land was zoned C-1 for commercial use under New Haven’s zoning ordinance. As the process of developing the site progressed, Brian Yoh, New Haven city planning director, told Flying J officials he believed some of the proposed uses for the land were not permitted under the zoning ordinance, according to court documents. Flying J officials allege city officials extended the appeals process as long as possible while simultaneously working to amend the text of the city’s zoning ordinance to prevent the proposed use of the property, according to court documents.

In May 2005, the Board of Zoning Appeals backed Yoh. Flying J officials then appealed to Allen Circuit Court. Allen Circuit Judge Thomas Felts ruled in September 2005 that some of Flying J’s plans for the site were not specifically permitted in the C-1 commercial zoning, such as servicing tractor-trailer rigs and overnight parking. The Indiana Court of Appeals overturned Felts’ ruling in October 2006, according to court documents.

In the federal lawsuit, the company accuses the city of changing the wording of the ordinance and not telling Flying J about upcoming public hearings or rulings about the property, according to court documents. In his ruling, District Chief Judge Robert L. Miller Jr. said that while Flying J argued the ordinance was passed in retaliation for the company’s state court victory, the city had a rational reason for passing the amended ordinance. He then granted the city’s motion to have the case dismissed.

In a ruling issued Friday, a three-judge panel of the 7th Circuit of the U.S. Court of Appeals in Chicago issued a ruling upholding Miller’s dismissal.

Writing for the panel, Circuit Judge William J. Bauer said Flying J failed to overcome the presumption that New Haven acted rationally when it changed the ordinance.

Posted by Marcia Oddi on Saturday, December 06, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Legal to ship wine as gift, to yourself"?

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, respond today to this question from a reader:

I’ve read your articles about Indiana laws and wine shipping and I’m still a little confused. As of right now, if someone from California or Oregon wants to send me a bottle of wine as a gift, can they do it legally? What about if I’m in Italy and want to order a case of wine at a winery there and have it sent home to Indiana? Is there somewhere I can follow this developing situation? In your opinion, what can wine lovers do to help influence lawmakers to change the laws to allow us to be able to get the wines we want shipped to Indiana? Thanks for your time. – Mia

Posted by Marcia Oddi on Saturday, December 06, 2008
Posted to Indiana Law

Law - Chicago Mayor Dailey privatizes City parking meters

A interesting story in the Sun-Times this morning, reported by Fran Speilman, begins:

No wonder Mayor Daley is so touchy about the subject of mortgaging Chicago's future.

He has now unloaded four of the city's most valuable assets for a $6 billion mountain of cash and saddled taxpayers with $5.8 billion worth of long-term debt.

The great Chicago sell-off started with the Skyway ($1.83 billion), continued with downtown parking garages ($563 million) and Midway Airport ($2.5 billion) and culminated this week with the sale of Chicago parking meters ($1.15 billion).

More troubling for future generations is the fact that the mayor plans to spend at least $425 million of the parking meter windfall over the next five years -- and $324 million more if the moribund economy is slow to bounce back.

Daley has also increased the city's long-term debt by a whopping 178 percent over the last decade -- from $2.1 billion to $5.8 billion or $2,006 per person.

And Chicago has more than 150 tax increment financing districts that siphoned $555.3 million away in 2007.

The bottom line is that Daley's successor will be boxed in by heavy debt, a diminishing tax base and precious few money-making assets.

"He's handcuffing future mayors. Whoever comes in is going to find an empty cupboard," said a longtime observer, who asked to remain anonymous.

Posted by Marcia Oddi on Saturday, December 06, 2008
Posted to General Law Related

Friday, December 05, 2008

Ind. Decisions - Tax Court issues one today

In Indiana Dept. of State Revenue, Inheritance Tax Division v. The Estate of Virgil J. Miller, a 5-page opinion on a petition for rehearing, Judge Fisher concludes: " the Court AFFIRMS its original decision on this matter in its entirety."

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Ind. Tax Ct. Decisions

Law - More on "Victory for wine lovers sours as Michigan tries again to ban direct shipping"

Updating this ILB entry from Nov. 29th, the Michigan House of Representatives has voted to bar wine shipments to consumers. Dawson Bell of the Detroit Free Press reports:

LANSING — Direct shipment of wine from retailers to consumers would be banned under legislation approved overwhelmingly in the state House on Thursday.

The legislation, in response to a federal court decision opening up Michigan’s market to retailers from all over the country, would bar shipments by all retailers in and out of the state. It passed on a vote of 97-9, but it was unclear today whether the state Senate would follow suit before the end of the year.

The legislation has the backing of the state Liquor Control Commission and the influential Michigan Beer and Wine Wholesalers Association. The commission and association say they wants to control access to alcohol. They claim that is necessary to keep alcohol distribution under tight control.

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to General Law Related

Ind. Decisions - "Appeals court again rejects sentence for 1992 murder"

The Court of Appeals decision December 4th in the case of Jerome Reed v. State of Indiana (NFP) is the subject of a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

The Indiana Court of Appeals on Thursday again overruled Allen Superior Court Judge John Surbeck’s decision to sentence a man to 50 years in prison for a 1992 murder.

Instead, the appellate judges cut 10 years off of Jerome Reed’s prison term, meaning he could be released from prison by 2011. * * *

The Indiana Court of Appeals originally ruled in 2007 that Surbeck used an inappropriate factor to add to Reed’s sentence and ordered him to consider other items that might reduce the prison term in a new sentencing hearing.

As a result, Surbeck in January re-sentenced Reed, finding that the nature and circumstances of the crime justified adding 10 years to the standard 40-year term for murder in 1992.

He noted during that hearing that Reed had an opportunity to walk away after Ludy was already injured on the floor but instead shot her twice more.

Thursday’s Indiana Court of Appeals ruling found that Surbeck again used an inappropriate aggravating factor to increase the sentence.

Specifically, the judges found that Surbeck depended on the probable-cause affidavit for Reed’s case, which described a slightly different version of events than those Reed admitted to at the guilty-plea hearing.

At the guilty plea, Reed described the first shot as accidental rather than intentional.

“Our supreme court has cautioned that a trial court should find the nature and circumstances of an offense aggravating only if the offense involves ‘particularly heinous facts or situations,’ ” the decision said.

“Although we do not condone the severity of Reed’s offense and recognize that all murders are inherently heinous, the facts elicited from Reed’s guilty plea hearing are too limited to permit a finding that the nature and circumstances of the offense were more egregious than the nature and circumstances of a typical murder.”

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

Timothy Strowmatt v. Kim E. Rodriguez (Strowmatt) - " Strowmatt asserts that the trial court erred in calculating his child support arrears. Citing to Lambert v. Lambert, 861 N.E.2d 176 (Ind. 2007), he argues that the amounts accrued during his periods of incarceration should not have been included in the calculation. We disagree. * * *

"Indiana has long held “that after support obligations have accrued, a court may not retroactively reduce or eliminate such obligations.” * * * As there was no abatement order or modification of Strowmatt’s child support obligation, it continued during his incarceration and accrued until his son’s emancipation on December 10, 2005."

In Joseph J. Reiswerg & Cohen Garelick & Glazier v. Pam Statom , a 17-page opinion, Judge Brown writes:

In this consolidated appeal, Joseph J. Reiswerg appeals the trial court’s grant of partial summary judgment to Pam Statom in her legal malpractice action, and both Reiswerg and Cohen Garelick & Glazier (“CGG”) appeal the trial court’s order striking their motions for summary judgment, which raised statute of limitations defenses.

Reiswerg raises three issues, which we consolidate and restate as: I. Whether the trial court erred by granting Statom’s request for final judgment against Reiswerg; and II. Whether the trial court abused its discretion by striking Reiswerg’s motion for summary judgment. CGG raises two issues, which we consolidate and restate as: III. Whether the trial court abused its discretion by striking CGG’s motion for summary judgment.

We dismiss in part, affirm in part, reverse in part, and remand.

In Christine Sandage and Arthur Shofner v. The Board of Commissioners of Vanderburgh Co., Indiana, et al. , a 13-page opinion, Judge Brown writes:
The Appellants argue that Porter’s Parking is liable as a matter of law for the wrongful deaths of Sandage-Shofner and Small because Porter’s Parking: (1) assumed a duty to supervise Moore; (2) negligently hired and retained Moore; and (3) is vicariously liable under the theory of respondeat superior. We will address each argument separately.

Duty to Supervise . * * * In the present case, the designated evidence reveals that Moore was an employee of Porter’s Parking on work release. Under the terms of the work release program, Moore was to return to the community corrections facility at the end of his shift. On the night in question, rather than returning to the facility, at the end of his shift Moore drove himself to Sandage-Shofner’s apartment and committed the murders. The Appellants have presented no evidence that Porter’s Parking was responsible for returning Moore to the facility, that Porter’s Parking assumed care and control over Moore, or that its relationship with Moore was custodial in nature. Accordingly, we must reject the Appellants’ argument that Porter’s Parking had taken charge of Moore or assumed care and control over him knowing that he was likely to cause bodily harm to others. * * *

Negligent Hiring and Retention. * * * Thus, as a matter of law, Porter’s Parking did not have a duty of care to Sandage-Shofner, Small, and Jenkins, and the trial court properly granted summary judgment in favor of Porter’s Parking. * * *

Respondent Superior. * * * Here, under the terms of the work release program, Moore was to return to the community corrections facility at the end of his shift. However, on the night in question, rather than complying with the work release program, Moore drove himself to Sandage- Shofner’s apartment and committed the murders. In light of the designated evidence, we cannot say that Moore’s actions constituted conduct authorized by Porter’s Parking, or were in furtherance of the business or interests of Porter’s Parking. Moreover, the Appellants cite no authority, and we find none, for the proposition that an employer is vicariously liable for all acts of an employee simply because the employee is an inmate on work release. Accordingly, we conclude that Moore’s murderous acts did not fall with the scope of his employment with Porter’s Parking, and thus that Porter’s Parking is not vicariously liable under the doctrine of respondeat superior.

Laquania Wallace v. State of Indiana - " This evidence is sufficient to prove that the House was property of another, supporting the Criminal Mischief conviction. The conviction for Theft is also supported by sufficient evidence to demonstrate that Bowman had rightful possession of the furnace and water heater based on Bowman’s testimony that he purchased and installed the units in the House. We therefore affirm Wallace’s convictions. "

Melissa Christian v. State of Indiana - "Here, the evidence demonstrated that Christian was found in her friend’s driveway attempting to unlock a vehicle. The State describes the driveway as “an area that people in the neighboring area use to park” and an area “used by the public to park perpendicular to Randolph Street.” The State claims that “[t]he parking area did not belong to anyone in particular.” Id. However, the evidence presented at the trial does not support these claims. Christian described the area as a “driveway” between her friend’s residence and the neighbor’s residence. The officer described the area as a place to park perpendicular to Randolph Street. The State presented no evidence that the parking area was used by the public in general rather than only the residences next to the area. * * *

"As in the above cases, we conclude that the State failed to prove Christian was located in a public place. Because there is insufficient evidence that Christian was intoxicated in a public place, we reverse her conviction for public intoxication."

NFP civil opinions today (4):

Teresa Heath v. Timothy Heath (NFP) - "Based upon the Parenting Time Guidelines, Mother was entitled to credit for 98 overnights. Consequently, the trial court’s use of 52 overnights in calculating Mother’s parenting time credit without an explanation of the deviation was clearly erroneous. On remand, we direct the trial court to recalculate Mother’s parenting time credit in accordance with the Ind. Child Support Guidelines or explain the deviation. For the foregoing reasons, we reverse the trial court’s child support order and remand with instructions."

The Termination of Parent-Child Relationship of S.V. and K.V. (NFP) - "For the foregoing reasons, we affirm the trial court’s termination of Mother’s parental rights to S.V. and K.V. "

Fred Pfenninger and Cummins Michigan, Inc. v. Great Lakes Drilling, Inc., et al. (NFP) - "Appellant Fred Pfenninger appeals sanctions imposed by the trial court for Pfenninger’s conduct as an attorney in a lawsuit involving Appellees Great Lakes Drilling, Inc., and Diversified Blast Hole, Drilling, Inc. (collectively, “Diversified”). We affirm in part, reverse in part, and remand. * * *

"In sum, the judge was not required to recuse himself because the basis of request was Pfenninger’s disagreement with the trial court’s ruling on the merits rather than any impropriety on the part of the judge. Second, Pfenninger was not denied due process for the hearing on the amount of sanctions because the Chronological Case Summary reflects that notice of the hearing was sent to both parties. The trial court abused its discretion in trebling the sanction because the relevant authority did not provide for such. Finally, this appeal does not warrant an award of appellate attorney’s fees for Diversified. We remand the case to the trial court to modify the amount of the sanction to $14,398.58."

CGC Bridgeway Apartments, LLC v. First Bank and Trust Co. of Illinois (NFP) - "CGC Bridgeway Apartments, LLC (“Bridgeway”) appeals the trial court’s order foreclosing its property in favor of First Bank and Trust Company of Illinois (“First Bank”). Bridgeway raises one issue, which we revise and restate as whether the trial court’s findings of facts and conclusions thereon foreclosing Bridgeway’s property were clearly erroneous. We affirm. "

NFP criminal opinions today (6):

David L. Howard v. State of Indiana (NFP)

Garrison Lee Hood v. State of Indiana (NFP)

Michael B. Zalat v. State of Indiana (NFP)

Calvin Kinney v. State of Indiana (NFP)

Eric Danner v. State of Indiana (NFP)

Richard Creedon, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues 2 Indiana decisions today

In Flying J Inc. v. City of New Haven (ND Ind., Judge Miller), an 18-page opinion, Judge Flaum writes:

Flying J purchased 53.3 acres in New Haven, Indiana in the hopes of constructing a travel plaza and various other developments, including hotels and restaurants, on that land. Unfortunately, the New Haven Plan Commission was not as sanguine about the development plans, and after two adverse zoning decisions Flying J sued New Haven in Indiana state court. After losing in the trial court, Flying J prevailed on appeal, and the Indiana Supreme Court’s decision not to review the case made Flying J’s victory final. The victory proved to be short-lived, however. As the state court litigation was winding down, New Haven amended its zoning ordinance and limited all service stations (such as Flying J’s travel plaza) to two acres in size. Needless to say, Flying J’s proposed development was not permitted under the amended ordinance. Flying J then filed suit in federal court, alleging that New Haven’s actions violated their rights to equal protection and due process. New Haven then filed a motion to dismiss for lack of subject matter jurisdiction, charging that the case was not ripe, and a motion to dismiss for failure to state a claim. The district court found that the controversy was ripe and thus that it had subject matter jurisdiction over the case, but granted the motion to dismiss for failure to state a claim. * * *

[W]e affirm the district court’s determination that the ripeness requirements of Williamson County do not apply to the present case. * * *

The allegations in Flying J’s complaint are thus insuffi- cient to overcome the presumption of rationality that attaches to government actions in a class of one equal protection case, and the district court properly dismissed it for failing to state a claim under Rule 12(b)(6).

In U.S. v. Derrik Hagerman and Wabash Env. Tech. (SD Ind., Judge Hamilton), a 4 page opinion, Judge Posner writes:
The defendants, Wabash Environmental Technologies, LLC, and its president, Hagerman, were convicted of making false statements in violation of the Clean Water Act, and they appeal. We affirm the judgments in an unpublished order issued today, and limit this opinion to a threshold issue that happens to be the single point of novelty in the appeals.

In previous appeals by these parties in a related civil case, we ruled that a limited liability company (which Wabash is), like a corporation, cannot litigate in a federal court unless it is represented by a lawyer. * * * In the present case Wabash was represented by a lawyer both in the district court and in this court. The lawyer filed both an opening brief and a reply brief on behalf of the company. But then Hagerman fired the lawyer, who moved us for leave to withdraw from the case, which we granted. The question is whether, even though Wabash’s appeal has been fully briefed, we should dismiss it because Wabash is no longer represented and, not being a natural person, cannot litigate in federal court unless it is represented.

We cannot find a case that has addressed this issue. * * *

One way to treat a willful act by an appellant that constitutes a ground for dismissal is to treat the act as if it were a motion for a voluntary dismissal of the appeal, which the court can grant upon terms fixed by it, Fed. R. App. P. 42(b)—but doesn’t have to grant at all. * * * In this case, with the appeal fully briefed and the merits free from doubt, we would be mistaken to grant the (imputed) motion. For that would allow Wabash to argue in future regulatory proceedings that the merits of its defense had never been fully adjudi- cated. We have thought it best, therefore, to affirm the judgment of the district court in order to lay to rest any doubt about the company’s guilt. But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation.

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Another Indy law firm acquired in merger"

Updating yesterday's ILB entry, John Russell of the Indianapolis Star reports today in a story headed "Locke Reynolds: new name, clout":

Indianapolis is shaping up as Exhibit A in a new wave of mergers sweeping the legal industry.

On Thursday, one of the city's oldest mid-sized firms, Locke Reynolds, best known for defending such clients as Ford and Honda in product-liability cases, announced plans to merge with the powerhouse law firm of Frost Brown Todd, based in Cincinnati and Louisville, Ky.

The combination would give the Indianapolis firm an instant growth spurt as it tries to push into other markets and broaden its array of legal services.

Frost Brown Todd has 385 lawyers, or nearly five times as many as Locke Reynolds, and calls itself one of the largest law firms between Chicago and Atlanta. It ranks 137th in the nation in number of attorneys and 169th in revenues, according to the National Law Journal and American Lawyer, two industry publications.

The Indianapolis office will have the name Frost Brown Todd, but will continue to manage its own offices. * * *

Locke Reynolds' decision to combine forces with the larger firm will help put the combined operation "on the map," Henderson said. The combined firms would have more than 450 attorneys operating in a five-state region and combined revenues of more than $175 million.

In another possible deal that has caught the industry's attention, Ice Miller, one of Indianapolis' premier Big Three law firms, is said to be negotiating a merger with the smaller firm of Greenebaum Doll & McDonald of Louisville. * * *

The flurry of mergers and possible mergers comes as some law firms, mostly on the East and West coasts, are laying off employees or closing up shop as a result of the severe economic downturn.

The recession has dampened the need for corporate mergers and acquisitions, along with commercial real estate deals. However, it has driven up business for other legal needs, including litigation and bankruptcy.

Frost Brown Todd said it is diversified enough to withstand the economic bumps and even has plans to grow, in part by adding 20 more entry-level lawyers next year. The firm said it will not cut jobs in Indiana as a result of the merger.

Ed Glasscock, co-managing partner of Frost Brown Todd, said his firm has been looking for a way to enter the Indianapolis market for about two years, attracted by the city's mix of big companies, government offices and growing businesses.

"We felt we really needed to be in Indianapolis," he said. "It's one of the fastest-growing markets in the U.S. for legal services."

The two firms got together after a consultant hired by Locke Reynolds identified Frost Brown Todd as its top choice for a partner, both sides said.

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Indiana Law

Ind. Law - IU Law - Bloomington receives $35 million gift

Jeff Swiatek reports today in the Indianapolis Star in a story that begins:

Saying he wants to help train better lawyers, Indianapolis businessman Michael "Mickey" Maurer and his wife, Janie, will donate $35 million to Indiana University Law School-Bloomington.

In an announcement Thursday, the university said it immediately will rename the Bloomington school the Michael Maurer School of Law in recognition of the gift and Maurer's previous support.

It's the largest gift to the law school by an individual or couple. Maurer earned an IU law degree in 1967 and had a 20-year career as a practicing attorney.

"This exceptional gift . . . will enable Indiana University to continue to attract top law students and to provide them with the essential knowledge and practical training vital in today's complex legal environments," IU President Michael A. McRobbie said in a statement.

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Indiana Law

Ind. Courts - "State's high court hears school funding challenge"

Yesterday's oral argument before the Supreme Court in the case of Philip A. Bonner, et al. v. Mitch Daniels, et al (see Monday's "upcoming oral arguments" feature here, and the COA 5/2/08 opinion here) is the subject of several stories today.

Niki Kelly's report in the Fort Wayne Journal Gazette, as with the other two stories today quoted below, is worth reading at length. (Having listened the arguments live yesterday, I can attest that they would have been very difficult to summarize and highlight.) From Kelly's story:

But the state’s five Supreme Court justices on Thursday barely touched the merits of the case – whether enough money is flowing to schools from the state treasury.

Instead, they focused on whether Indiana’s Constitution requires the state to fund education at a certain level. And they questioned both attorneys heavily, hardly letting either man present his own case.

According to the Constitution, it is the duty of the legislative branch, “to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all.”

Weisman argued these words can be interpreted to call for a duty to provide an adequate education for every student.

But Thomas Fisher, arguing on behalf of the Indiana Attorney General’s Office, said the plaintiffs shouldn’t be able to challenge the outcomes of the system, so long as the system itself is general and uniform.

“It’s up to the legislature to decide how to prioritize,” he said. “How much money should we spend? How should we spend it? These are legislative questions.

Patrick Guinane writes in his story in the NWI Times:
The Indiana Supreme Court heard arguments Thursday over whether to advance a lawsuit claiming the state's school funding system does not give all students a fair shot at an adequate education.

Michael Weisman, a Boston attorney who has worked on similar challenges in other states, asked the five Indiana justices to let the 2006 lawsuit go to trial in Marion County.

"What we seek is the opportunity to have a day in court," Weisman said. * * *

The Indiana Constitution, which dates to 1851, calls for the General Assembly to provide "a general and uniform system of common schools."

Tom Fisher, a deputy attorney general representing the state, argued that the lawsuit improperly asks the judiciary to get involved in decisions that should be left to the legislature.

"The courts and the General Assembly should not go back and forth as to what is adequate funding," he said.

The justices peppered Weisman with questions, repeatedly asking whether the lawsuit was an attempt to have the courts tell lawmakers how much should be spent on education.

"It's hard for me to see why this isn't about money," Chief Justice Randall Shepard remarked.

Afterward, Clark said the association's primary goal is to force an independent analysis of whether the current school funding system gives every student an adequate opportunity to meet the state's academic standards.

A Marion County judge originally dismissed the lawsuit, saying it should have been filed against the General Assembly, not the governor and state schools superintendent. A state appeals court reinstated the suit.

From Mike Smith's AP report:
The plaintiffs want the lawsuit to proceed in Marion Superior Court so they can argue their case on the merits and try to prove that many children -- especially those who are poor, minorities, have language challenges or learning disabilities -- do not have the same chance as other children to achieve state-mandated standards. * * *

Justice Frank Sullivan, who was state budget director under then-Gov. Evan Bayh, said the history of court cases on school funding in some states has not been pretty.

"I think, boy, is this something we need to get into?" he asked. But then he suggested that it was sometimes the court's role to delve into such issues, regardless of the political ramifications.

Weisman said the plaintiffs were not asking the courts to specify what amount of money is needed, but to ensure that the state adequately funds education so mandated academic standards can be achieved. He said that courts should be allowed to get involved in the matter, and that court rulings in some states have led to improvements in education.

Fisher said the constitution requires a general and uniform system of education and nothing else. "It is up to the legislature to determine these matters," he said.

Posted by Marcia Oddi on Friday, December 05, 2008
Posted to Ind. Sup.Ct. Decisions

Thursday, December 04, 2008

Ind. Courts - "Judge Cecile Blau passes Clark County Drug Court to Judge Jerry Jacobi"

Jerod Clapp reports today in the Jeffersonville News & Tribune, in a story that begins:

After more than six years of serving as the judge for the Clark County Drug Treatment Court, Judge Cecile Blau is stepping down from her seat at the beginning of 2009.

Blau said working with the program has been both exhausting and rewarding, but she said she also has confidence in her successor, Judge Jerry Jacobi.

“I think the changing of hands will be good for drug court,” Blau said. “I think he’ll bring some new ideas and new energy to the program.”

The program provides treatment for nonviolent drug offenders rather than going straight to incarceration.

Blau said since the program started in May 2002, 40 people have graduated from the program. She said graduation isn’t the only measure of success for drug court.

“The real success of this program is that everyone learned their own individual tools to beat their addiction,” Blau said. “Sometimes, when you’re exhausted, one of your participants tells you they’re sober, and it re-energizes you.”

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to Indiana Courts

Environment - "BP's sale of pollution-control bonds is part of a controversial plan to expand its refinery in Whiting, Ind."

For a good update on the BP project in NW Indiana, see this report today in The Bond Buyer that begins:

CHICAGO - BP this week sold $200 million of tax-exempt bonds to launch a roughly $1 billion pollution-control project that's part of a controversial expansion of a crude oil refinery located in northwest Indiana.

Issued through the city of Whiting, the $200 million bond issue comes a few weeks after Whiting officials authorized the issuance of up to $1 billion in additional tax-exempt pollution control bonds to finance the four-year, $3.8 billion expansion project.

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to Environment

Courts - "if an emoticon amounts to government inducement, then an exclamation point must be, too"

To understand the context, see this WSJ Law Blog entry, headed "Emoticons on Trial at the Nebraska Supreme Court."

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to General Law Related

Law - Just out: 2nd GAO report on TARP (Troubled Asset Relief Program)

The GAO has just released a 24-page report, subtitled "Status of Efforts to Address Defaults and Foreclosures on Home Mortgages."

The link to the 1st report, released Tuesday, subtitled "Additional Actions Needed to Better Ensure Integrity, Accountability, and Transparency," is here.

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to General Law Related

Ind. Decisions - 7th Circuit issues one today

In Kevin Unthank v. Brian Jett, Warden (SD Ind., Judge McKinney), a 5-page opinion, Judge Easterbrook writes:

More than a decade ago, we affirmed Kevin Unthank’s conviction and 262-month sentence for violating federal drug laws. United States v. Unthank, 109 F.3d 1205 (7th Cir. 1997). Ever since, he has been trying to have the conviction vacated or the sentence reduced. * * *

If Unthank wanted to use §2255 to argue for a lower sentence after asking a state court to vacate one or more of his prior convictions, he had only to refrain from filing a collateral attack until the state court had acted. He may have used unwisely the one §2255 motion allowed as of right, but he did use it in 1998 and has not met the statutory requirements for an additional round of collateral review. * * *

Unthank does not contend that a glitch in §2255 prevents application to his situation of a retroactive decision of the Supreme Court. Nor does he claim to be innocent of the current crime. He says only that his sentence is too high, and as we explained in Hope v. United States, 108 F.3d 119 (7th Cir. 1997), this differs from a claim that he is innocent of the crime of which he was convicted. AFFIRRMED.

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jack D. McArdle III v. State of Indiana (NFP)

Travis Stout v. State of Indiana (NFP)

Jerome Reed v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - "Another Indy law firm acquired in merger"

Tom Spaulding of the Indianapolis Star reports today:

Partners at the law firms Frost Brown Todd LLC and Locke Reynolds LP of Indianapolis approved a merger agreement late Wednesday, according to a published report.

The Business Courier of Cincinnati reported about the merger on its Web site today.

The firm will continue to operate as Frost Brown Todd, with the Locke operations transitioning to that name around Jan. 5.

The merger is the second announced this year in which a major Cincinnati law firm has acquired a large Indianapolis firm. In May, Indianapolis-based Sommer Barnard PC merged into Taft Stettinius & Hollister LLP. Sommer Barnard had about 100 lawyers.

See ILB entry here from April 20th for more on the Taft merger.

Here is the Locke Reynolds announcement, dated Dec. 4, on the Frost Brown Todd website.

There have also been reports that the venerable Ice Miller intends to merge with Louisville-based Greenebaum Doll & McDonald, but no announcements as of this writing.

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to Indiana Law

Ind. Courts - Fink named Vanderburgh Circuit Court magistrate

Libby Keeling reports in the Evansville Courier & Press:

A woman who is no stranger to the work of Vanderburgh Circuit Court has been named its new magistrate.

Kelli E. Fink, Posey County's chief deputy prosecutor for the past four years, previously served Vanderburgh Circuit Court for about eight years in a variety of capacities, including court administrator, staff attorney, law clerk and adult probation intern and bailiff. * * *

Circuit Court Judge Carl A. Heldt noted Fink's previous experience in the office and as chief deputy prosecutor as well as her work ethic and judicial temperament in his selection of her from a pool of 18 applicants. * * *

The process of replacing Circuit Court Magistrate David D. Kiely began Nov. 4 after he was elected to fill the bench of retiring Vanderburgh Superior Court Judge Scott R. Bowers. Bowers has served four six-year terms as judge. * * *

The primary differences between judge and magistrate include the fact judges are elected while magistrates are appointed, and judges countersign magistrates' rulings in civil, but not criminal, matters.

Posted by Marcia Oddi on Thursday, December 04, 2008
Posted to Indiana Courts

Wednesday, December 03, 2008

Courts - NY Commission nominates 7 men to replace Judith S. Kaye, chief judge of the New York State Court of Appeals

"Lack of Women on Court List Draws Fire" is the heading to this entry in the NY Times City Room blog, written by Sewell Chan.

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Courts in general

Ind. Law - Report on the current status of the Indiana statutes on the General Assembly website

I am delighted to report that within the last few days the General Assembly has made available online the Session Law Disposition Table I wrote about in my November 2008 Res Gestae article, "Recodifications, legislative histories and tables - Part 1)."

The version of the Table that has now been posted covers "the disposition of each section of every law enacted by the Indiana General Assembly from 1852 through 2001, with the exception of those laws repealed by the blanket repeals contained in IC 1-1-1-2 and IC 1-1-1-2.1." The Table is 1,796 pages long and over 6 MB.

I'll have more to say about the newly posted Table in a later entry dealing with the question of whether all the viable statute law is in the Indiana Code. But for today, I'd like to provide an update on the status of the other issues I have raised over the past years about the General Assembly website as it relates to the Indiana statutes.

Concerns Raised in 2006 Article about the Indiana Code.

Since I wrote, now over two and one-half years ago, my initial article on the Indiana Code, several of the problems I pointed to on the General Assembly website have been addressed. The 2006 Res Gestae article, "The General Assembly's Role in Making Indiana Rules and Statutes Available to the Public," begins its discussion of the Indiana Code and the Acts of Indiana on p. 22 (p. 4 of PDF) by detailing a number of concerns.

You may review the details on pp. 22-23 (pp. 4 to 5) of the article. For our purposes here, I will simply list in bold the 2006 concerns, followed by the current status:

  • The current online Indiana Code is accompanied by no explanatory materials. This is still the case today. However, at a meeting of the Code Revision Commission Nov. 20th of this year, a Legislative Services Agency staffer said they were were considering adding such materials.
  • Error-ridden? At the time the 2006 article was written, numerous obvious errors such as the one quoted in the article existed. As far as I can tell, these obvious problems have now been remedied. (However, I have heard from LSA staffers that the HTML online version is not as reliable as the PDF version. If this is the case, the HTML version of course should be corrected ASAP.)
  • For much of the year, the online Indiana Code is not current. And worse, from a user's point of view, it did not indicate that it was not current. This situation has been addressed. The current online version of the Indiana Code states that it is updated through the 2008 session, and presumably it will continue to so indicate until it is updated with the laws passed in 2009. As most of these changes will take effect on July 1 of 2009, that date would seem to be be the best time to post - and announce - the new version.
  • Retention Issues. This is related to the previous issue. Once the 2009 version of the Indiana Code replaces the 2008 version, the former version is nowhere to be found. I have heard of no plans to address this issue. (Why it is important is addressed at p.23 (p. 5) of the article.)
Praise in 2006 Article for the Public Bill System.

There is one area that I highly praised in the 2006 article and continue to do so today. Here is what I wrote:

The Public Bill system. Something done well be the General Assembly and its staff is the online public bill system, allowing users to access legislation as it goes through the session, along with committee reports, vote sheets, and items.

I have nothing but praise for this part of the system. It is good, I think, because it is intensively used during the session by people who know who to talk to if they run into problems.

The materials from each session are retained online and can be readily accessed.

Even here, however, I have a suggestion. Why should it be necessary for the researcher to continually reference tables going back and forth between enrolled act numbers and public law numbers? Why not either facilitate this electronically, or implement a public law number that incorporates the enrolled act number.

Earlier this year I created my own resource to make research earlier, and I have shared it online.

Concerns Raised Over the Years about the Availability of the Acts of Indiana.

An ILB "wish list" I first posted on 12/31/03 (reproduced here in 2004) included wishes for:

3. The Debates of the Indiana Constitutional Convention of 1850, the Convention Journal, and related documents made readily available on CD-ROM or DVD, and priced right for the student. Incredibly, these books are out-of-print -- I had to slowly assemble my collection from dealers all over the country.

4. I've got more CD/DVD wishes - the House and Senate Journals since Indiana became a State; the Acts of Indiana for the same time-span. Scanned [OCRed], so that we can see the printed pages. Electronic finding aids would also be nice, but the important thing right now is to capture all this history and make it available before it totally disintegrates.

I've included #3 only to give context. All these documents on the Indiana Constitution are now available online! They are both searchable and downloadable. Wonderful! (I believe this was through the cooperative efforts of the Historical Bureau and the Court - please correct me if I'm wrong.) Note also that quantum leaps in the availability of low cost memory make use of an intermediary media such as CD/DVD no longer necessary.

But as for #4 on the wishlist, only a little progress. This July 13th I wrote in the ILB, complaining that although the General Assembly had just posted the Acts of 2008, it had at the same time removed the link for the Acts of 2007. I continued:

This despite the urging of myself and many others that the files for ALL the volumes of the Acts of Indiana be made available to the public. (I've been urging this for five years; obviously to no effect.)
Shortly thereafter, as I note here on July 23rd, back years of the Acts of Indiana began appearing. As of today they go back to 2000. This is good, so far.

How to go back to 1816? Five years ago this looked impossible. That was before Google began its march across the country, scanning all the volumes in major university library collections. Now a number of copies of various years of the Acts of Indiana may be found online, with imprints such as the Stanford Law Library.

For instance, here are the Indiana Acts of 1865. Hopefully, someone from the State Historical Bureau or Supreme Court will be able to coordinate with Google to assemble a complete collection of these invaluable volumes.

So this report concludes - There has been much progress over the past few years, and kudos to all those involved. But much yet remains to be accomplished to make Indiana's statute laws available to the citizens of Indiana.

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Indiana Law

Ind. Decisions - Tax Court posts one

Dated Dec. 2, 2008, the Tax Court has posted Clark-Pleasant Community School Corp. v. Dept. of Local Government Finance (NFP), a 14-page opinion where Judge Fisher concludes:

This Court will give deference to whatever factor or reason the DLGF bases its final determination on as long as the DLGF’s reasoning is supported by the evidence. Here, the DLGF’s reasoning is not supported by the evidence and, as a result, the DLGF’s final determination must be REVERSED. The matter is hereby REMANDED for a final determination to be issued consistent with this opinion.

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Ind. Tax Ct. Decisions

Environment - More on "High Court Case Tests Power Plants' Water Rules"

The Washington Post today has an editorial on the power plant intake cases argued yesterday before the Supreme Court. The editorial concludes:

A plain reading of the intake provision strongly suggests that Congress intended the agency, first and foremost, to identify the best technology -- not the best technology for the money.

Does this mean the agency can never consider costs? No -- and the approach outlined by the 2nd Circuit judges allows for that. After identifying the best technology, the agency may allow power plants to use less expensive means that achieve similar results. Individual plants may seek a variance if even the cheaper method proves too burdensome.

The approach outlined by the appeals court is reasonable and provides the least convoluted reading of the statute. If the industry does not like this result, it should go to Congress and ask that the law be rewritten.

An article by Adam Liptak of the NYTimes today ends with the water intake case:
In a second argument Tuesday, the court considered whether the Environmental Protection Agency may use cost-benefit analysis to regulate cooling structures that draw water from rivers and lakes to absorb heat generated by power plants and manufacturing facilities. The process kills aquatic organisms.

The argument in the case, Entergy Corporation v. Riverkeeper, No. 07-588, mostly concerned the meaning of a phrase in the Clean Water Act that requires the structures to “reflect the best technology available for minimizing adverse environmental impact.”

Richard J. Lazarus, representing the environmental groups that brought the case, said the agency may consider whether companies can bear the cost of less harmful technologies but may not balance cost against environmental harm.

Chief Justice John G. Roberts Jr. cautioned that the test Mr. Lazarus suggested might not result in much protection these days.

“Maybe the industry could have borne these costs two years ago, but they probably can’t today,” the chief justice said. “Nobody has money in the bank today.”

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Environment

Ind. Courts - "Clerks find ways to shuffle county history"

Jane Huh of the Gary Post-Tribune reports today:

Organizational skills are a prerequisite for those who work at county clerk offices, a depository for local public records.

At the Lake and Porter county clerk offices, categorized documents are kept in files. The record-keeping function lends itself to a never-ending shuffling game and crowded spaces.

"Every county runs into the same problem," said Karen Johnston, chief deputy clerk in Porter County.

Following state law, all counties must maintain public records, including traffic violations and small court claims, for a certain number of years.

Some documents can be removed and destroyed. However, certain specified documents, like wills and estates, must be maintained permanently.

The perpetual incoming flow necessitates a "destruction" process once every year, said Porter County Clerk Pam Fish.

"For certain kinds, we have to hold them for three years, some for 10 years and some for a lifetime," Fish said. "But for each instance you have to follow the rules and document exactly what you're getting rid of, definitely not prior to that."

The clerk's office makes up several stacks for removal every year. Traffic tickets, small claims court papers and ledgers are some documents Porter County will remove this year.

Fish and Johnston will review submitted requests for destruction on Friday at the county circuit courtroom. At the meeting, they decide whether to transfer requests for destruction to the state's records commission for permission.

At Lake County, the clerk's office hold records destruction meetings on a quarterly basis. Given the size and scope of the county, one of the largest in the state, it's only logical.

"The volume is huge," said Susan Gilyan, records manager at the Lake County Clerk's Office. "It would be just so cumbersome."

Gary, Hammond and East Chicago each have clerk offices since the courts are located there. * * *

At the Porter County office, employees are getting more and more squeezed in the narrow spaces they have to maneuver around the tall shelves. * * *

To make the best use of space, constant reorganization and transfer of files to other locations is an essential part of the job.

Then, there's also the responsibility of keeping close track of records and putting them into computer databases and microfilms.

"It's very labor-intensive,"Gilyan said "Many times, I wear jeans and not-so-nice clothes. I'm up on ladders."

Gilyan was overwhelmed when she began work at the clerk's office in 2004. Cardboard boxes stuffed with files covered the floors, making it challenging to sort through. But, the office has "come a long way," since 2004 when Clerk Thomas Philpot placed a cleanup as a high priority, she said. * * *

Tucked inside the rows of movable storage units and shelves are remnants of local history. Records date back to the early 19th century.

At least one person shows up at Lake County's government building in Crown Point to trace ancestors through the heavy books, including marriage record books and estate records. On some weeks, more than 20 people come in, Gilyan said.

Earlier this past spring, the filming John Dillinger's 1934 jail escape scenes for the upcoming movie "Public Enemies", starring Johnny Depp, piqued the interest of dozens of people who trekked to the clerk's office to look up public records on the legendary gangster, Gilyan said.

Dillinger's criminal case files included court papers that charged him with embezzlement and first-degree murder during a robbery.

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Indiana Courts

Ind. Decisions - "Weidas lose appeal; West Lafayette law called 'vague'"

Yesterday's Court of Appeals decision in the case of Jerry M. and Patti A. Weida v. City of West Lafayette (see ILB summary here - 3rd case) is the subject of a story today in the Lafayette Journal Courier, reported by Sophia Voravong. Some quotes:

Property owners and managers Jerry and Patti Weida did not do enough to monitor how many people were living in one of their rental homes, the Indiana Court of Appeals has ruled.

The unanimous opinion, issued Tuesday, ruled in favor of the city of West Lafayette and its over-occupancy ordinance, which allows only up to three unrelated people to live together in areas zoned residential.

The decision also echoed the findings of Judge Thomas Busch of Tippecanoe Superior Court 2, who presided over a bench trial last year in which the Weidas were sued by the city. They were accused of allowing five women to live in a home at 112 Sylvia St. during Purdue University's 2005-06 academic year.

"The Weidas did not present any evidence from which we can infer that they satisfied their duty to personally monitor the occupancy of each dwelling unit." Judge Patricia Riley wrote in the 19-page ruling.

"Rather, the evidence suggests that the Weidas had been put on notice that more than three unrelated persons were occupying their rental property prior to the city filing its complaint. ... The Weidas never conducted any follow-up on the notice." * * *

The civil complaint against the Weidas, who own several rental properties in portions of West Lafayette largely populated by Purdue students, was one of three lawsuits over alleged code violations by landlords.

The city's legal fees mounted to tens of thousands of dollars fighting the court battles.

In its ruling, however, the appeals court also chided West Lafayette's ordinance for "being poorly written ... in places, highly ambiguous."

The purpose of West Lafayette's occupancy ordinance is to "protect neighborhoods and provide safe and decent housing," according to the city's Web site.

For much more, see this ILB entry from Oct. 4th.

[More] A reader writes to say:

The headline of the Journal Courier article about the Weida case says that the Court of Appeals called the West Lafayette ordinance (quote) "vague." The word "vague" does not appear in the opinion.

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indiana prosecutor is under investigation for alleged misconduct in forfeiture cases"

That is the headline to a long story, dated Nov. 25th, reported by Mary Spicuzza in the national blog Asset Forfeiture Watch.com. The report begins:

An Indiana prosecutor is under investigation for a scheme that allowed him to personally collect a percentage of the proceeds of civil forfeitures from suspects against whom he was simultaneously pursuing criminal charges.

A judge found that between 2000 and 2008, Prosecutor Mark R. McKinney collected more than $100,000 in attorney fees from local drug task force funds under secret agreements with suspects in drug cases.

McKinney's work for the drug task force was done on a private contract basis, and was not part of his official duties as Prosecuting Attorney of Delaware County, a position he assumed in 2007, or of his previous position as a Deputy Prosecutor.

His contract with the task force entitled him to as much as 25% of the cash and proceeds from civil forfeitures.

In a pair of scathing reports, one in August and one in November, Delaware County Circuit Court 2 Judge Richard A. Dailey found that McKinney had deliberately kept the District Court uninformed of secret settlement agreements involving the Muncie-Delaware County Drug Task Force. Under the settlements, individuals would agree to surrender money and property-seemingly in exchange for the dismissal of more extensive civil forfeiture actions and reduced criminal charges.

Posted by Marcia Oddi on Wednesday, December 03, 2008
Posted to Indiana Courts

Tuesday, December 02, 2008

Law - "A simple checklist for legislators to follow that could dramatically reduce the number of unnecessary lawsuits"

Peter H. Schuck, a professor at Yale Law School, a very interesting article in The American Lawyer. It begins:

Every once in a while, legislators can learn from doctors. In late June, the World Health Organization issued its first guidelines for reducing the complications and deaths from medical procedures. These guidelines list simple safety checks that WHO believes could halve the rate of surgical complications.

What does this have to do with law? Potentially a lot. Simply read the advance sheets of any federal or state court that spends a considerable fraction of its time interpreting statutes-which is to say, all courts-and you will quickly see that a vast amount of litigation is devoted to relatively technical or uncontroversial statutory issues. Congress or the relevant state legislature could and would probably have resolved clearly and authoritatively had it simply given those issues a little thought. By the simple expedient of reviewing a checklist of such issues when drafting laws and then including provisions to address some or all of them, a legislature could in a few strokes reduce significantly the amount of wasteful litigation, just as WHO's checklist will likely reduce costly surgical errors.

Many issues generate a great deal of litigation even before the court can reach the merits of the procedural or substantive questions that lie at the heart of the dispute. There are many examples; here are just a few: Does the statute permit a private cause of action for damages? Which courts have subject-matter jurisdiction and where must appeals be lodged? Is the statute retroactive? In the case of a federal statute, is it intended to preempt state law? Who has standing to sue? Is there a statute of limitations, and if so what is the limitations period? Is arbitration permitted? Which types of relief are available? Most important-but also perhaps more controversial-how should the key statutory terms be defined?

I am not the first to propose using a legislative checklist to reduce litigation costs and economize on limited judicial resources. Earlier proponents include a Federal Courts Study Committee report to the Judicial Conference of the United States, the U.S. Department of Justice in congressional hearings, and the late F. Reed Dickerson of the Indiana University Law School. Despite support from these heavy hitters, however, legislative bodies have not adopted this approach. Why not?

That is just the start.

Thanks to this WSJ Law Blog entry for the heads up.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to General Law Related

Law - Just out: GAO report on TARP (Troubled Asset Relief Program)

The GAO has just released a 72-page report, subtitled "Additional Actions Needed to Better Ensure Integrity, Accountability, and Transparency."

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to General Law Related

Environment - Legislator to introduce two CAFO bills

From a press release issued this afternoon:

INDIANAPOLIS – People seeking to start confined feeding operations in Indiana would be required to submit to a background check in order to receive a license, according to legislation authored by State Rep. David Cheatham (D-North Vernon) that will be considered during the 2009 session of the Indiana General Assembly.

Cheatham intends to file a pair of measures in 2009 that will deal with public concerns over the rapid expansion of Confined Feeding Operations (CFOs) and Concentrated Animal Feeding Operations (CAFOs) across the state.

The first proposal would require CAFO operators to meet “good character” standards as part of the process of receiving a license. A second bill would prohibit anyone from locating a CFO or CAFO within two miles of a state park or reservoir.

CAFOs are facilities that house and feed a large number of animals in a confined space. Because CAFOs produce a large amount of manure, many people express concerns about contamination of surface and ground water, particularly when the operations are located close to residential areas or schools. * * *

The latest CAFO controversy erupted in August, when manure from a facility near Union City in Randolph County was washed into the Little Mississinewa River and caused thousands of fish to die. The state had to warn residents to stay away from the water.

“By including good character requirements in the permitting process for CAFOs, we are asking that the operators submit to a background check that reveals their history in running facilities of this type,” Cheatham said. “If they are honest and reputable, they should have no problem demonstrating their past history as an example of their willingness to run a business that responds to public concerns and moves to protect the health of residents who live near a CAFO.

“We seek similar information from applicants to other critical positions, including teachers,” he continued. “If a CAFO operator has had past problems about meeting environmental regulations, we should know about these things, how these problems were answered, and if they were addressed in a timely fashion.”

Cheatham’s second proposal stems from a presentation made over the interim to the Water Resources Study Committee that the lawmaker chairs. Residents from Union County in east-central Indiana asked for a change in state law that keeps CAFOs at least two miles away from state-owned properties.

“These folks believe that the same rules of safety that apply for locating a CAFO near a community should also apply for those areas of Indiana that are nationally-recognized attractions for their natural beauty,” Cheatham said. “I feel that these measures should be part of the ongoing discussions over CAFOs, and I intend to pursue debate on them in the 2009 session.”

Here are some ILB entries about the Union City fish kill mentioned above.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Environment

Ind. Courts - Governor appoints Miami Superior Court judge

From the news release:

INDIANAPOLIS (December 2, 2008) - Governor Mitch Daniels today announced the appointment of Daniel C. Banina as judge of the newly created Miami Superior Court II.

Banina, of Peru, has served as judge of the Miami Superior Court I since 1996. Previously, he served as the Miami County chief deputy prosecuting attorney for nine years and Franklin County chief deputy prosecuting attorney for two years. Banina is a member of the Indiana State Bar Association and a past president of the Miami County Bar Association.

He received his undergraduate degree from St. Joseph's College and law degree from Valparaiso University School of Law.

His appointment will be effective January 1.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (3):

In Termination of Parental Rights for S.B. and D.B., a 10-page opinion, Judge Riley writes:

Appellant-Respondent, Daniel Bailey, Sr. (Father), appeals the trial court’s involuntary termination of his parental rights to his children, S.B. and D.B. We affirm. * * *

Although not raised by either party, we find the dispositive issue in this case to be whether the trial court committed reversible error when it postponed its pronouncement of judgment and failed either to (1) terminate Father’s parental rights or (2) dismiss DCDCS’s termination petition at the conclusion of the termination hearing. Resolution of this issue requires that we interpret Indiana Code section 31-35-2-8. * * *

The trial court’s decision to postpone its pronouncement of judgment and give Father one final chance despite its conclusion that DCDCS had already satisfied its burden of proof was in direct violation of Indiana Code section 31-35-2-8 which clearly provides that a trial court shall either find the allegations in the petition to be true and terminate the parent-child relationship, or find the allegations not to be true and dismiss the petition.

Because the trial court failed to comply with Indiana Code section 31-35-2-8, its judgment terminating Father’s parental rights to S.B. and D.B. is erroneous. Nevertheless, given the circumstances before us, we find the trial court’s error to be harmless. To be sure, while we do not approve of the trial court’s postponement of its ruling pursuant to Indiana Code sections 31-35-2-8 and 31-35-2-4, remanding this cause to the trial court with instructions to hold a new termination hearing would be against the twins’ best interests. The children have lingered in the system six months longer than needed while Father dabbled with services, continued to use alcohol, and failed to maintain regular contact with the twins. The twins need and deserve stability and permanency now. The current system has already been criticized for putting children in limbo too long, thereby fostering instability and unhinged relationships. See Baker v. Marion County Office of Family and Children, 810 N.E.2d 1035, 1040 (Ind. 2004). It is undeniable that it is within a child’s best interest and overall well being to limit the potential for years of litigation and uncertainty. See id. In light of these considerations and the trial court’s clear determination that the DCDCS satisfied its burden of proof on November 5, 2007 and again on February 26, 2008, we affirm the trial court’s termination of Father’s parental rights to the twins.

CONCLUSION Based on the foregoing, we hold that, although the trial court violated Indiana Code section 31-35-2-8 by postponing its pronouncement of judgment, this error was, given the circumstances, harmless. Affirmed.

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II , a 24-page opinion, Judge Riley writes:
Appellant-Defendant, Clay City Consolidated School Corporation (Clay City Schools), appeals the trial court’s denial of its motion to correct error and Order on remittitur awarding Appellees-Plaintiffs, Ronna Timberman (Mother) and John Pipes II (Father), $300,000 after a jury verdict. We reverse and remand.

ISSUES. Clay City Schools raises seven issues for our review, one of which we find dispositive and restate as: (1) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 20 that a thirteen-year-old boy is presumed to be incapable of contributory negligence.

Because we conclude that the trial court committed reversible error by issuing Final Instruction No. 20, we also consider the following issues to forestall unnecessary disputes upon remand and duplicative issues for another appeal, * * *

CONCLUSION For the foregoing reasons, we conclude that the trial court committed reversible error when instructing the jury that Indiana law contains a rebuttable presumption that children between the age of seven and fourteen cannot be contributorily negligent. Therefore we must reverse and remand for further proceedings consistent with this opinion.

In Jerry M. and Patti A. Weida v. City of West Lafayette, IN, a 19-page opinion, Judge Riley writes:
Appellants-Defendants, Jerry M. Weida (Jerry) and Patti A. Weida (Patti) (collectively, the Weidas), appeal the trial court’s Findings of Fact and Conclusions of Law entered following a bench trial in favor of Appellee-Plaintiff, City of West Lafayette, Indiana (the City), on the City’s allegation that the Weidas’ five-bedroom rental house was overoccupied during the 2005-06 Purdue school year. We affirm in part and reverse in part.

The Weidas raise six issues on appeal, which we consolidate and restate as the following four issues: (1) Whether the trial court erred by concluding that the Weidas permitted or allowed the overoccupancy of their rental house; (2) Whether the trial court properly admitted the testimony of the City’s witnesses, whose testimony was induced by the City’s promise of post-trial consideration if they testified truthfully at trial; (3) Whether the trial court erred by ruling on claims pending in other actions and other courts; and (4) Whether the trial court’s award of costs was contrary to law. * * *

In a nutshell, the Weidas now essentially assert that the pivotal duty under the Ordinance is not to permit or allow overoccupancy at 112 Sylvia Street, whereas the duty to monitor, as included in the Ordinance’s first sentence, is merely a secondary obligation. Additionally, they allege that the “permit or allow” language includes a culpability element, i.e., the Weidas argue that the City was required to prove that they intended to permit or allow the overoccupancy. As the City cannot prove that they affirmatively permitted the overoccupancy, the Weidas maintain that no investigation into the secondary duty needs to be made and the trial court’s judgment should be reversed.

The City, on the other hand, asserts that the Weidas’ proposed interpretation would make a violation of a duty to monitor without consequence. Instead, the City proposes an interpretation of the entire section—without parsing out the sentences one by one—whereby the landlord would be under a duty to monitor and to ensure proper occupation. As such, the City maintains that when a landlord fails this double duty, he ‘permits or allows’ overoccupancy. * * *

In sum, based on the evidence before us, we conclude that the trial court properly determined that the Weidas permitted or allowed the overoccupancy of their rental house in violation of City Ordinance 117.08(d). However, we hasten to add that our decision today should not be interpreted as an approval of the City’s Ordinance. Not only is the Ordinance poorly written, it is also, in places, highly ambiguous. We echo the sentiment expressed in Bowden v. City of West Lafayette, 79A05-0802-CV-66 (Ind. Ct. App. Oct. 17, 2008), slip op. 1 n.1, that this discussion is better saved for another day when these issues are not beyond the scope of our review and are properly presented to this court. Nevertheless, the issues, as raised by the Weidas, compel us to affirm the trial court. * * *

CONCLUSION. Based on the foregoing, we hold that (1) the trial court properly concluded that the Weidas permitted or allowed the overoccupancy of their rental house; (2) the Weidas waived their argument regarding the admission of the City’s witnesses at trial; (3) the trial court did not rule on claims pending in other actions and other courts; and (4) the trial court erred in its award of transcription costs. Affirmed in part, reversed in part.

[ILB - Note that Bowden, cited above, was a NFP.]

NFP civil opinions today (4):

Jeffrey L. Huntsman v. Patricia Cline-Asher (NFP) - "Based on the foregoing, we conclude that Huntsman [Appellant pro se] has waived all of his contentions but one: that the trial court was biased. However, we conclude that Huntsman has failed to establish that the trial court exhibited bias. "

In Oscar Guillen, Sr. v. City of Hammond, IN (NFP) - "Oscar Guillen, Sr., an inmate at Wabash Valley Correctional Facility, appeals the trial court’s dismissal of his claims for wrongful arrest and constitutional violations. In his pro se appeal, Guillen raises five issues, which we consolidate and restate as whether the trial court properly dismissed his claims pursuant to Indiana Code section 34-58-1-2. Concluding that Guillen’s claims are barred because he filed them after the expiration of the statute of limitations, we affirm."

In the Matter of the Adoption of B.J.L. and M.J.L. (NFP) - "C.L. (Appellant) appeals the adoption of his children, then thirteen-year-old B.J.L. and then nine-year-old M.J.L. (collectively, the Children) by the Children’s step-father, D.D. Appellant contends the trial court erred in (1) finding that he failed to communicate significantly with the Children, while able to do so, for a period of at least one year under Ind. Code Ann. § 31-19-9-8(a)(2)(A) (West, PREMISE through 2007 1st Regular Sess.), (2) concluding that the adoption could be granted without Appellant’s consent, and (3) ultimately granting the adoption. We affirm. "

David Tower v. Mark Johnson (NFP) - "David Tower appeals a declaratory judgment in favor of Mark Johnson in an action pertaining to a dispute arising from a partnership that the two had formed. Upon appeal, Tower presents the following restated issue for review: Did the trial court err in determining that Tower purchased Johnson’s interest in the partnership before the partnership assets were sold to a third party? We affirm. * * *

"Constrained by our standard of review, we conclude that this evidence supports the findings, which in turn support the judgment that Tower’s buyout of Johnson’s partnership interest was a fait accompli by the time of the January 25, 2005 closing. Thus, Tower has failed to demonstrate that the judgment is clearly erroneous."

NFP criminal opinions today (2):

Alfred W. Comer, Jr. v. State of Indiana (NFP)

Christopher Montgomery v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Prieto (ND Ind., Judge Simon), a 27-page opinion, Judge Manion writes:

After a traffic stop, officers found over four kilograms of methamphetamine hidden in the bumpers of the Honda Civic in which the defendants Thomas Prieto and Fernando Sanz (collectively “the appellants”) were traveling. The appellants were both charged with possessing with the intent to distribute more than 500 grams of a substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1). After a three-day trial, a jury found Prieto and Sanz guilty. They appeal, alleging a variety of trial errors. We affirm. * * *

The evidence against the appellants was overwhelming. Thus, the district court did not err in briefly admitting Martinez’s stray comments about the appellants’ post- arrest silence. Nor, for the same reason, did it err in admitting Agent Ritchie’s statement about Prieto and Sanz’s possible connection to another drug investigation. The district court also did not abuse its discretion by admitting Nuco’s statements from the jail telephone conversation because the evidence supported the court’s finding that the call was in furtherance of a conspiracy involving Nuco and the appellants. In addition, the district court did not abuse its discretion in admitting the methamphetamine exhibits because any minor break in the chain of custody went to the weight of the exhibits rather than their admissibility. Finally, since the jury could have inferred the identification of Prieto and Sanz from all the facts and circumstances in evidence, the appellants were not entitled to a mistrial due to the lack of a formal in-court identification. We AFFIRM.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Ind. (7th Cir.) Decisions

Environment - More on: Who is responsible for cleanup costs?

Updating yesterday's ILB entry, WLKI News is reporting today:

(ANGOLA) - Steuben County Commissioners and Angola City Council members met with representatives from Univertical yesterday and last night to discuss solutions to enviromental problems at the former Dana Corporation site in Angola which may force Univertical to leave Indiana.

Company President Chuck Walker was seeking support on a proposal to clean up the property which the state estimates will cost between $6 million and $8 million.

Attorney Richard Baron said there is no firm proposal yet because discussions are still being held with IDEM. Commissioners including Commission Chair Mayo Sanders were hesitant to make any sort of commitment until they get some answers from the state. Sanders said he did not want to buy a "pig in a poke".

Dana had an agreement with IDEM to clean up the property after they left Angola some 15 years ago. But Dana is no longer liable for the clean up after they went into bankruptcy. Angola Mayor Dick Hickman said during last night's City Council meeting that solutions were still being explored by company, state and local officials.

Jim McGoff from the Indiana Finance Authority said financing options for the city included low interest loans or brownfield grants.

An angry City Council Member David Olson blasted IDEM over how they handled the situation. He said the agency still has some accountability.

No IDEM representative was at last night's City Council meeting which prompted Council Member David Martin to say that spoke volumns to him. Steuben County Commissioners are expected to discuss the matter further during their December 18th meeting. A representative from IDEM has been invited to attend.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Environment

Environment - "High Court Case Tests Power Plants' Water Rules"

Today, according to SCOTUS Blog, the U.S. Supreme Court "will hear argument in Entergy Corp. v. EPA (07-588) and two consolidated cases, on the regulation of cooling water intake structures under the Clean Water Act." The issue:

Whether the Clean Water Act permits the EPA to undergo a cost-benefit analysis in determining the most environmentally friendly technology at cooling water intake structures, and to regulate such structures at existing as well as new facilities.
See all the filings at the above-link to the SCOTUS Blog Wiki link.

Nina Totenberg of NPR reported on the upcoming argument this morning. Her story, headed "High Court Case Tests Power Plants' Water Rules," is available here. It begins:

The U.S. Supreme Court hears an important environmental case Tuesday, testing whether utilities must use the best technology available to minimize harm to the nation's waterways. At issue is the physical impact on fish and the financial impact on companies.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Environment

Law - "Obama To Tackle Explosion In Federal Contracts"

Outsourcing government work - the explosion in government contracts under the Bush administration - is the subject of a two-part NPR story by Daniel Zwerdling. Part I, which ran yesterday, is here - you can read it or listen to the 7:30 minute report. And here is Part II, which ran this morning, headed "New President Faces Powerful Federal Contractors." It runs 7:48 minutes.

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to General Law Related

Ind. Decisions - Still more on Indiana's Little Hatch Act

Following up on its two stories Sunday, the Evansville Courier & Press today has an editorial headed "Not everyone is a federal employee."

Posted by Marcia Oddi on Tuesday, December 02, 2008
Posted to Ind. App.Ct. Decisions

Monday, December 01, 2008

Ind. Decisions - Federal district court sanctions city of Madison over strip-search

Brian Jones of the Madison Courier reported Saturday in a story that begins:

The United States District Court has set sanctions against the city of Madison, former Mayor Al Huntington, former Madison Police Chief Robert Wolf, Madison City Councilman Jim Lee and former city attorney Rob Barlow for not producing documents in a lawsuit filed by three Madison women who say their constitutional rights were violated when they were strip-searched by the Madison Police Department in January 2007.

The sanctions require the city and the other defendants in the case to pay a fine of $1,000, complete all requests for documents by the plaintiff by Dec. 5, and pay the three women's attorney fees for filing the motion which resulted in the sanctions.

U.S. Magistrate Judge William G. Hussmann Jr., decided to apply the sanctions after the defense repeatedly promised to produce evidence and depositions in the case but failed to do so as ordered by the court.

"The testimony of Mr. Barlow in particular indicates to the court that these defendants were not taking their obligations to comply with discovery in a serious matter, and in many instances did not attempt to comply at all," Hussmann wrote in his decision.

Hussmann's decision also pointed out, when the initial request for documents outlining the Madison Police Department's standard operating procedure was given to the women's attorney in December 2007, it contained directions for 31 procedures. However, when Wolf's deposition was taken in April of this year, he revealed new standard operating procedures numbered 32 through 35 which had been prepared prior to Dec. 21, 2007, but had not been revealed to the women's attorney.

Standard operating procedure 35 addresses warrantless searches and provides detailed rules concerning matters relevant to strip-searches.

Here is a copy of the 9-page order of William G. Hussmann, Jr., United States Magistrate Judge, dated Nov. 20, 2008.

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Ind Fed D.Ct. Decisions

Environment - Who is responsible for cleanup costs?

From WKLI News:

(ANGOLA) - The future of the Univertical plant in Angola is scheduled to be discussed during tonights Angola City Council meeting.

The company is threatening to leave Angola for North Carolina if enviromental problems which go back to when the property on Weatherhead Street was owned by Dana Corporation are not taken care of.

At issue is an agreement that the now bankrupt Dana Corporation entered into with the Indiana Department of Envriomental Management when its Angola facility closed 15 years ago. Univertical bought the property in the mid 90's under the assumption the clean up of pollutants was going to be handled by Dana and IDEM.

But Dana's bankruptcy has changed things and it has led to a series of closed door discussions between local, state and company officials over how the pollution will be cleaned up and who will pick up the costs.

We tried to contact company president Chuck Walker last week. While our phone call was not returned he was quoted in yesterdays Herald-Republican as saying he and IDEM will present a proposal to the City Council tonight in which $6.5 million would be spent on the clean up, with the state and Univertical picking about $1.6 million of the costs.

Walker also told the newspaper he wants to keep the company in Angola. The company was founded in Detroit 70 years ago. It manufactures materials for the plating industry.

A question would be, would Univertical's moving to North Carolina change the obligations of the various parties for cleaning up the property?

I've looked for the Angola Herald-Republican story, but it turns out to be accessible online only to subscribers to the paper.

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Environment

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

Apparently it isn't going to get it. Updating this earllier entry, Lyle Denniston of SCOTUSBlog writes today:

The Supreme Court refused on Monday to reopen the issue of the kinds of wetlands that are protected from pollution discharges under the federal Clean Water Act. Without comment, the Court denied review of a Justice Department appeal and a cross-appeal on the issue; the cases were sequels to the Court’s splintered 2006 ruling in Rapanos v. U.S. (04-1034). * * *

The Court’s refusal to consider anew the scope of wetlands protection leaves lower federal courts to continue to struggle over the meaning of the Rapanos decision. The Court in that decision provided three separate approaches to the Clean Water Act’s scope –one embraced by four Justices, one by a different group of four, and one by Justice Anthony M. Kennedy. The Justice Department asked the Court to clear up the matter, appealing in U.S. v. McWane (08-233); the other side filed a conditional cross-appeal on a Double Jeopardy issue in McWane v. U.S. (08-364). The case now returns to lower courts for a new trial on criminal charges of dumping industrial waste water into a creek next to a pipe-making plant in Birmingham, Ala.

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Courts in general | Environment

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

Here is the just issued transfer list for the week ending Nov. 26, 2008. It is one page.

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, December 01, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Darvay Mashawn Sallee v. State of Indiana (NFP)

Larry F. Anglin v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit on service of process

In a 16-page Illinois decision today, U.S. v. Ligas, the panel splits 2-1 on the question of whether service of process was properly effectuated. Judge Sykes writes:

Lawrence Ligas appeals the district court’s grant of summary judgment to the government for $319,883.60 in unpaid taxes, interest, and penalties. Although Ligas raises multiple arguments in support of reversal, we need only consider one: lack of personal jurisdiction. The government never properly served Ligas. It sought multiple extensions of time to effectuate service, asserting that if the case was dismissed for lack of personal jurisdiction, it could not be refiled because the statute of limitations had expired. After giving the government nearly a year to serve Ligas, the district court dismissed the govern- ment’s complaint for failure to serve process as required under Rule 4 of the Federal Rules of Civil Procedure. * * *

Ligas was never properly served, and the court’s decision to reconsider and vacate the Rule 4(m) dismissal order and reinstate the complaint was based on a legally erroneous conclusion that Ligas’s motion to quash waived his objec- tion to personal jurisdiction. Accordingly, we REVERSE the judgment of the district court and REMAND the case to the district court with instructions to dismiss the complaint.

[Judge Evans' dissent begins on p. 14.]

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Indianapolis Star editorial praises state BMV

An editorial today in the Indianapolis Star begins:

This week brought the revelation of good news regarding the Indiana Bureau of Motor Vehicles. The agency both received and gave.

In down-to-earth business that matters most to the motoring public, the BMV was lauded by the State Board of Accounts for "extraordinary improvement" in its operations, which were the stuff of sick jokes a mere two years ago.

In the more ethereal, and headline-making, realm, BMV Commissioner Ron Stiver announced he is dropping a new policy that banned mention of the deity on personalized license plates.

Both current BMV head Ron Stivers and former head Joel Silverman come in for praise:
Crowning two years of top-to-bottom effort led by Stivers and his predecessor, Joel Silverman, the board of accounts closed its report with two minor "corrective action recommendations," compared to 33 just 18 months ago. The independent auditor cited long-overdue accomplishments such as "installation of a comprehensive accounting system" and "implementation of sound internal controls that strengthen financial oversight." Those dry phrases translate into taxpayer savings and customer satisfaction.

Ironically, a computer network upgrade, whose disastrous startup figured in Silverman's departure, has been a key to the turnaround. But so have simpler measures, from better labor-management communication to incentive bonuses to spiffed-up decor and lighting in the branches. Waiting time has been slashed, thanks to harder work by staff and the shift of a million customers a year to the Web, auto dealer outreach and other options.

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Indiana Government

Ind. Law - "State legislators unlikely to tackle same-sex marriage amendment in 2009"

Bill Ruthhart of the Indianapolis Star has a lengthy front-page story today reporting:

Though the number of states adopting bans on same-sex marriage grows, the odds appear slim that Indiana lawmakers will give serious consideration to such a constitutional amendment next year.

It's not because social conservatives won't push for it again.
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But after the effort died twice, the long and complicated process of amending the constitution would have to start all over again, and no one in the Statehouse seems prepared to go to the ramparts.

Even the Republican lawmaker who has pushed the measure in the past says he doesn't plan to do so in the 2009 session.

"I think the issue is still relevant in that it continues to be debated in a variety of states and continues to be heard by a variety of courts," said state Sen. Brandt Hershman, R-Wheatfield.

"However, if action is to be taken this time, it would be my intent to see it start in the House, because that's been the holdup in the past, and until that legislative entanglement is resolved, there's not much to be achieved through the Senate yet again."

The Indiana Senate, controlled by Republicans, has voted three times to pass the amendment. The House, however, is controlled by Democrats, and Speaker B. Patrick Bauer has not shown a willingness to allow a floor vote on the issue.

Bauer, D-South Bend, has said he thinks Indiana's law prohibiting same-sex marriages is enough.

"I've been asking people to show me that the current law has been broken, and they haven't showed me yet. I want to see the couples that were illegally married," he said earlier this year when asked about the prospects of a constitutional amendment. * * *

Though marriage under Indiana law is defined as the union between a man and a woman, proponents of the amendment say they want to protect their position in the state constitution to prevent judges from misinterpreting the law or overruling it.

Opponents contend not only that current law is sufficient but that an amendment would constitutionally shield a form of discrimination.

Nationwide, 30 states have passed constitutional amendments banning same-sex marriages. Arizona, California and Florida approved their measures in November.

A side-bar to the story gives "key dates" in the "history of same-sex marriage laws," as compiled by the National Conference of State Legislatures.

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Indiana Law

Ind. Courts - "A statewide court system?"

Reprinted with permission from the Dec. 1, 2008 issue of Ed Feigenbaum's Indiana Legislative Insight, the lead story:

For at least two decades, concerns have been raised about just how constitutional the state court system might be due to disparities in funding at the local level. While there has been less public discussion of the issue in the past few years than in the early 90s, the issues have not faded away, and, indeed, there may now be a new focus.

The Chief Justice was one of the two marquee names on the Kernan-Shepard Commission that issued a report suggesting a major overhaul of the local government structure (and shifting Indiana’s trial courts to a state funding model), and, to a certain extent, the impetus of this study and the sense of the overall atmosphere – that the time was ripe to examine different ways of organizing government, including the courts – has led the Supreme Court to quietly undertake a review of the state court system.

In addition, the Indiana Judicial Conference, through a smaller committee, is examining broad strategic planning issues involving court organization that, those involved expect, would ultimately lead to more efficient and equitable judicial operations.

The Supreme Court’s Division of State Court Administration is actually conducting three related studies that it believes will result in information that will help guide any reform.

One study is being led by Purdue University economic guru Larry DeBoer, the go-to outside guy for state officials on property tax fiscal matters. Dr. DeBoer and his Purdue colleagues are conducting a statewide study to assess the current costs of court operations statewide. You may recall that Dr. DeBoer conducted a related examination more than a decade ago during an earlier attempt at organizing a more centralized court system.

At the same time, the multi-disciplinary staff at the Center for Urban Policy and the Environment at the Indiana University School of Environmental and Public Affairs is conducting a broader study on the assorted potential impacts of a move from local to state funding, and analyzing various statewide governance models employed by other states that have undergone similar changes. CUPE brings an extensive knowledge of practical local government operations to the table, serving as home to the Indiana Advisory Commission on Intergovernmental Relations and also staffing the Kernan-Shepard Commission.

The third prong involves H.J. Umbaugh and Associates, independent financial advisors to local governments, conducting a study on the cost projections for a statewide system, focusing on the services currently provided by the county clerk, sheriff, and other officials and entities vital to court operations. Umbaugh’s component is being led by former Indianapolis Comptroller Bob Clifford. Clifford, who also served as executive director of the Indianapolis Bond Bank, was an executive assistant to former Gov. Evan Bayh (D), where the former Arthur Andersen audit manager was in charge of all government efficiency efforts.

We’re not picking up any definitive timetable yet . . . but stay tuned.

For related ILB entries, see this one from Nov. 28th headed "IU Center for Urban Policy and the Environment to study court reform," and this one from Nov. 24th headed "Court's FY 2009-2011 request to the State Budget Committee," which includes links to several earlier entries.

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week; includes school finance challenge

This week's oral arguments before the Supreme Court:

This Thursday, Dec. 4th:

9:00 AM - Philip A. Bonner, et al. v. Mitch Daniels, et al. - A student brought a class action suit seeking a declaration that the State's school funding system violates the state constitution. The Marion Superior Court dismissed the action. A divided Court of Appeals reversed. Bonner v. Daniels, 885 N.E.2d 673 (Ind. Ct. App. May 2, 2008), vacated. (See ILB summary here.) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Appellant: Ronald J. Waicukauski and Jana K. Strain, Indianapolis, Indiana. Michael D. Weisman and Rebecca P. McIntyre, Boston, Massachusetts. Attorneys for Appellee: Steve Carter, Thomas M. Fisher, Heather L. Hagan, Indianapolis, Indiana. Attorneys for Amicus Tax Foundation: Joseph D. Henchman, Washington, D.C. John M. Mead, Indianapolis, IN. Attorneys for Amici National Access Network, Education Law Center, and The Rural School and Community Trust, Inc.: Jerry Garau, Indianapolis, IN. Molly A. Hunter, New York, NY. Ellen Boylan, Newark, NJ. Amanda G. Adler, Columbia, SC.

Here is a list of earlier ILB entries on the school finance case.

9:45 AM - George Jackson v. State of Indiana - The Madison Superior Court denied Jackson's motion to suppress certain evidence, and Jackson was subsequently convicted of unlawful possession of a firearm. The Court of Appeals reversed, holding the search warrant was invalid and the evidence was not otherwise admissible under the good faith exception to the warrant requirement. Jackson v. State, 889 N.E.2d 830 (Ind. Ct. App. July 8, 2008), vacated. (See ILB summary here, 2nd case.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Jackson: Anthony C. Lawrence, Anderson, IN. Attorney for State: Justin F. Roebel, Indianapolis, IN.

Webcasts will be available here.


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

None scheduled.

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

This Wednesday, Dec. 3rd:

1:30 PM - Indianapolis-Marion County Public Library vs. Charlier Clark, et al - Appellant, Indianapolis-Marion County Public Library, argues that the judgment entered for the appellees, Charlier Clark & Linard, Thornton Tamasetti Engineers and Joseph G. Burns, on its negligence claims was erroneous because those claims were not barred under the economic loss doctrine, as espoused by our Supreme Court. The Scheduled Panel Members areL Chief Judge Baker, Judges Mathias and Brown. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, December 01, 2008
Posted to Upcoming Oral Arguments