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Saturday, January 31, 2009

Ind. Courts - Judicial Center's Legislative Update #3

Here is the Indiana Judicial Center's Legislative Update, current through Jan. 30th -- a good way to keep on top of court bills, and bills impacting criminal and civil matters.

Posted by Marcia Oddi on Saturday, January 31, 2009
Posted to Indiana Courts

Ind. Courts - More on "St. Joseph County Probate Judge to issue pay raises despite council's objections"

Updating this entry from Jan. 28th, the original story from Troy Kehoe from WSBT TV Mishwaka has been updated. Some quotes:

Judge Nemeth defends the increases, saying they are needed to keep and attract competent personnel.

He also told County leaders that none of the changes would cost taxpayers a cent, because all the money would come from "probation user fees" collected from juvenile offenders.

"That's the fund from which we take money to pay the increases probation officers have received over the last few years. And, what I'm asking is that we extend it to some of our other employees," Nemeth said.

But, county leaders say that tactic isn't fair to thousands of other county employees who won't get pay raises this year. * * *

"I can't control the other county offices. All I can do is take care of what I'm entrusted with, and that's the Probate Court," Nemeth said.

And Nemeth told the Council, that's exactly what he plans to do.

"I'm certainly not threatening anybody, I'm just -- I'm going to act," he said.

That's left the County Council with just two options: agree or fight the mandate.

"It makes an already tough situation almost impossible to deal with," said a frustrated Morton.

Still, Nemeth made it clear what he thinks the County's decision should be.

"If you oppose it, that means we go to court," he told the Council. "Then, you will be spending tax money."

For background, start with this ILB entry from Sept. 6, 2008.

Posted by Marcia Oddi on Saturday, January 31, 2009
Posted to Indiana Courts

Environment - Leaking underground storage tanks force Muncie plaintiff out of his house

Seth Slabaugh reports today in the Muncie Star-Press:

MUNCIE — For years, the owners of a former gasoline station failed to warn a neighbor that the ground water and soil beneath his house was contaminated with gasoline, a lawsuit alleges.

Jeffery Wray, a computer technician at Ball Memorial Hospital, complains in the lawsuit that gasoline vapors entering his basement from leaking underground storage tanks (LUSTs) forced him out of his home at 1821 S. Walnut St.

“The fumes were so bad I got a headache after visiting for 30 minutes,” said Wray’s attorney, Joey Davis. * * *

IDEM is overseeing cleanup of the site next door to Wray’s house. The agency hasn't taken enforcement action against the responsible party, [Barry Sneed, a spokesman for IDEM] said, because “they've been working cooperatively with our staff to conduct the required environmental studies and submit remediation work plans for our review.”

He added: “The responsible party has informed our staff that they are working to purchase the neighboring property. If this property is purchased, the responsible party may modify their remediation work plan.” * * *

“At no point subsequent to the tests … did anyone from either defendants, or even from IDEM, communicate the findings to plaintiff,” alleges the lawsuit filed in Delaware Circuit Court 1. “In fact, it was not until plaintiff requested the assistance of counsel recently with respect to worsening smells of gasoline in his basement and house that plaintiff learned this his property, including its soil and ground water, are contaminated.”

A ground water sample from a monitoring well just outside Wray’s basement detected benzene levels of 4,160 parts per billion. IDEM requires closure of residential properties when benzene levels reach 5 ppb.

Wray’s father, who died of cancer in 1993, and Wray’s mother, who died of cancer in 2002, both lived at the house for many years, according to the lawsuit. In addition, the couple’s dog died of cancer in 1999. Wray’s aunt, who also lived in the house for several years, died of cancer last year.

Here is a link to IDEM's Leaking Underground Storage Tanks (LUSTs) data page. The Star-Press has taken the data for the five counties it serves in East Central Indiana and created an online database - access it here.

Posted by Marcia Oddi on Saturday, January 31, 2009
Posted to Environment

Courts - "Justices Step Closer to Repeal of Evidence Ruling"

From the front-page of this morning's NY Times, a long story by Adam Liptak. Some quotes:

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision. * * *

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor [Craig M. Bradley, a law professor at Indiana University] said, means “the death of the exclusionary rule as a practical matter.”

Access earlier ILB entry on Herring from Jan. 15th here.

Posted by Marcia Oddi on Saturday, January 31, 2009
Posted to Courts in general

Ind. Decisions - Transfers granted in two cases, including Papa John's Pizza case

The transfer list will not be available until Monday, but the ILB has received notice of two transfers granted Thursday, the 29th.

The first is Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc. See summary of 7/11/08 COA opinion here. Here is a list of earlier ILB entries on this case, including several press stories.

The second is James H. Helton, Jr. v. State of Indiana - From the 5/16/08 COA opinion: "Given Helton’s trial counsel’s misunderstanding of the law which applies to this available and dispositive defense, he could not have given Helton competent advice on whether to plead guilty, and his performance fell below an objective standard of reasonableness. And had trial counsel filed a motion to suppress, the trial court would have been compelled to grant that motion, and the State would have likely been obliged to dismiss the charges against Helton. The burden to prove “a reasonable probability of acquittal” in making an ineffective assistance of counsel claim after pleading guilty is an onerous one. See Segura, 749 N.E.2d at 503. It is rare that we reverse the denial of a petition for post-conviction relief on these grounds, but Helton has satisfied that burden here. Helton has satisfied both prongs set out in Strickland. The law is with Helton, and, thus, we reverse the post-conviction court’s order. Reversed."

Posted by Marcia Oddi on Saturday, January 31, 2009
Posted to Indiana Transfer Lists

Friday, January 30, 2009

Ind. Courts - Updating "LaPorte deputy prosecutor shot"

Updating earlier stories, Laurie Wink of the Michigan City News-Dispatch reported Jan. 28 in a story that begins:

LA PORTE - A judge has ordered Stephan Koethe and his wife, Superior Court 3 Judge Jennifer Evans, to remove all firearms from their residence and to refrain from consuming alcohol right before or during the times when Koethe's two children are in their care.

The ruling comes five weeks after a shooting incident in the Koethe-Evans home in La Porte in which Evans, then a deputy prosecutor, was grazed on the head.

Walter Chapala, special judge in La Porte Superior Court 2, signed the order Tuesday following a Jan. 14 hearing in La Porte Circuit Court. He also ordered all parties, including the children and the children's mother, Megan Koethe, to participate in an evaluation by Gary Durak, Valparaiso. After a report on the evaluations is submitted, Chapala will hold another hearing to determine whether the existing custody and parenting time schedule should be maintained, according to the court order.

From Stan Maddux' report in the NWI Times:
A LaPorte County judge, who was shot last month, and her husband are under orders not to have guns or alcohol present while having custody of his children.

The restrictions are in response to a request for a change in custody by the man's ex-wife and were ordered by Walter Chapala, a special judge in the case under review in LaPorte Superior Court 2.

Specifically, the judge ordered Jennifer Evans and her husband, Stephan Koethe to remove all guns from their home while his children, ages 9 and 8, are in their care.

Evans and Koethe also cannot drink alcohol just before the start of their visitation and while having custody of the children.

The order signed Tuesday resulted from a Jan. 14 hearing on a motion by Megan Koethe for changes in custody and parenting time.

In this story today Laurie Wink reports:
MICHIGAN CITY - The shooting incident that wounded La Porte Superior Court Judge 3 Jennifer Evans late Dec. 22 is still under active investigation by the St. Joseph County Prosecutor's Office.

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to Indiana Courts

Courts - Rhode Island federal judge sprinkles opinion with links to songs

The headline to the story reported by Katie Mulvaney in the Providence Rhode Island Journal is "Judge rules R.I. law restricting billboards unconstitutional." But what interested the ILB was not the crux of the ruling, but the judge's approach. From the story:

PROVIDENCE — In a decision sprinkled with music references, and including links to YouTube, a federal judge has ruled unconstitutional a state law that restricts the content of billboards near highways.

U.S. District Judge William E. Smith on Wednesday upheld Anthony Joseph Vono’s right to keep a billboard on top of a building at 101 Poe St., off northbound Route 95 near the Route 195 split. Smith found that state law violated the First Amendment of the U.S. Constitution by affording greater protection to commercial speech over political speech. * * *

State law and regulations prohibit new billboards close to highways with certain exceptions — including an exception for signs “advertising activities conducted on the property upon which they are located.” * * *

The Rhode Island Affiliate of the American Civil Liberties Union filed suit on Vono’s behalf, arguing that it is unconstitutional to base restrictions on whether the billboard is promoting on-premises or off-premises activities. * * *

Asked about references in his ruling to and Web links to songs such as the Beatles’ “The Long and Winding Road” and Five Man Electrical Band’s “Signs,” Judge Smith explained that he wanted to make the decision more interesting to read and perhaps more accessible to the under-30, computer-oriented generation.

“The novelty of citations to YouTube and the idea that you could access music as you plod through the opinion hopefully makes a kind of dry subject a little more fun and interesting,” he wrote in an e-mail. “It seems to me that judges should look for ways to get people interested in important subjects like the First Amendment, to get them talking about it. Hopefully this will accomplish that goal in a small way.”

Here, thanks to Howard Bashman of How Appealing, is the 37-page opinion in Vono v. Lewis.

See, from pp. 2-3 of the opinion, an example involving footnotes 3 and 4.

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to Courts in general

Law - "Billable Hours Giving Ground at Law Firms "

That is the headline to a lengthy front-page story today in the NY Times, reported by Jonathan D. Glater. The story explores both sides of the issue. It begins:

Lawyers are having trouble defending the most basic yardstick of the legal business — the billable hour.

Clients have complained for years that the practice of billing for each hour worked can encourage law firms to prolong a client’s problem rather than solve it. But the rough economic climate is making clients more demanding, leading many law firms to rethink their business model.

“This is the time to get rid of the billable hour,” said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.

“Clients are concerned about the budgets, more so than perhaps a year or two ago,” he added, with a lawyer’s gift for understatement.

Big law firms are worried about their budgets, too. Deals are drying up, and only the bankruptcy business is thriving. Two top firms, Heller Ehrman and Thelen, have collapsed in recent months. Others have laid off lawyers and staff. So cost-conscious clients may now be able to sway long reluctant partners to accept alternatives.

The evidence of a shift away from billable hours is, for now, anecdotal, as few surveys exist. But partners at a half-dozen other big bellwether firms and lawyers at corporations, who sometimes engage outside counsel, say they are more often seeing different pay arrangements.

Mr. Chesler, who is an advocate of the new billing practices, said that instead of paying for hours worked, more clients are paying Cravath flat fees for handling transactions and success fees for positive outcomes, as well as payments for meeting other benchmarks. He said that such arrangements were still a relatively small part of his firm’s total business, but declined to discuss billable rates and prices in detail.

A quote that caught my eye:
Greed may also encourage lawyers to change their payment plans. Law firms are running out of hours that they can bill in a year, said Scott F. Turow, best-selling author of legal thrillers and a partner at Sonnenschein Nath & Rosenthal in Chicago.

“Firms are approaching the limit of how hard they can ask lawyers to work,” he wrote, in an e-mail response to a reporter’s query. “Without alternative billing schemes, lawyers will not be able to maintain the rapid escalation in incomes that big firms have seen.”

The blog Above the Law picks up on the story in this entry.

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

For publication opinions today (7):

In In Re the Paternity of Maria E. Duran: Baltasar Regalado v. Maria E. Duran and First National Bank of Valparaiso, et al. , a 24-page combined opinion, Judge Kirsch writes:

This case represents the consolidation of two causes of action pertaining to Joseph Regalado ("Joseph"). The first, a paternity action, is an appeal by Joseph's father, Baltasar Regalado ("Baltasar"), of the trial court‘s order that he could not intervene in the paternity action, which resulted in the determination that Joseph is the biological father of Maria E. Duran ("Duran"). The second, an estate action, is Duran‘s interlocutory appeal of the trial court‘s determination that, pursuant to IC 29-1-2-8, she is not entitled to inherit by means of intestate succession from Joseph's estate. On its own motion, this court consolidated these two cases into the paternity action. On appeal, Duran raises a number of estate issues, which we consolidate and restate as follows: I. Whether the trial court abused its discretion in determining that Indiana law applies to the administration of Joseph‘s estate. II. Whether the trial court erred in determining that Duran is not Joseph‘s heir under the laws of intestacy.

Baltasar also raises a number of issues of which we find the following restated issue to be dispositive: III. Whether the trial court erred in denying Baltasar‘s motion to intervene in the paternity case.

We affirm the decisions of the two trial courts.

In Indiana Family and Social Services Administration v. Alice V. Meyer (Deceased), and Dianne M. Rynn, Trustee, a 14-page, 2-1 decision with three opinions, Judge Bailey concludes:
We conclude that Indiana Code Section 4-21.5-5-13 does not speak to subject matter jurisdiction, does not mandate automatic dismissal for procedural error, and must be read to confer upon the trial court discretion in some circumstances. Just as the trial court has discretion to grant an extension of time, subject to the “good cause” requirement, the trial court has the discretion to find that a petition “subject to dismissal” should not, upon a proper showing, be dismissed. Affirmed.

BARNES, J., concurs in result with opinion. [which includes] I concur in result here because Judge Bailey and I do not see eye-to-eye on the trial court's “discretion.”

MATHIAS, J., dissents with opinion. [which includes] I respectfully dissent. The timely and complete filing of the agency record is a condition precedent to the acquisition of jurisdiction to consider a petition for judicial review.

In Beth A. Forni v. Review Board of the Indiana Department of Workforce Development and Caryn A. Guba, DDS, a 6-page opinion, Judge May writes:
Beth Forni appeals an adverse decision of the Review Board of the Indiana Department of Workforce Development. Because she did not have actual notice of the hearing before the administrative law judge (“ALJ”), the Board erred by affirming the ALJ’s decision. Therefore, we reverse and remand for a new hearing. * * *

The Board mailed notice to Forni, and therefore a presumption arose that she received notice. Scott 725 N.E.2d at 996. However, the Board does not dispute that Forni did not receive actual notice prior to the hearing; therefore, the presumption has been rebutted. Id. Thus, straightforward application of Scott compels a new hearing. * * * Our General Assembly could have made service effective on mailing, but it did not. Therefore, we will adhere to Scott, and we reverse and remand for a new hearing.

Gary Lewis v. Alvis Wynn , a 10page opinion, Judge May writes:
On March 29, 2005, Alvis Wynn shot and killed his step-daughter, Linda Lewis and then killed himself. Linda’s personal representative, her husband Gary Lewis, filed a wrongful death claim against Alvis’ estate and a negligence claim against Phyllis Wynn, who is Linda’s mother and Alvis’ wife. Gary alleged Phyllis “procured or possessed” the gun used in the shooting and “negligently stored, entrusted, monitored or allowed” Alvis to take possession of it. Phyllis moved for summary judgment on the negligence claim and on the issue of whether nonprobate transfers to her were subject to claims against Alvis’ estate. The trial court granted summary judgment for Phyllis on the negligence claim and held her liability would be limited to the extent Alvis contributed to the accounts that were transferred to her on Alvis’ death. We affirm.
In William B. Reedus v. Indiana Dept. of Workforce Development, a 14-page opinion, Judge Bailey writes:
The dispositive issue is whether the trial court erred in dismissing the appeal. * * *

The DWD asserts that Reedus failed to follow the procedure for seeking review of an administrative decision. This issue predates AOPA. * * *

Since this Court‟s decision in Izaak Walton, we have twice affirmed a trial court‟s dismissal of an administrative appeal because the petitioner failed to file an appropriate record. * * *

In light of the recent developments in the common law and the recognized split in authority on how to analyze the adequacy of a petitioner‟s filings, we review AOPA 3-33 and AOPA 5-13. * * *

Frequently, this issue matches a citizen against his state government, which is well- versed in the ways of its own administrative adjudications and the keeper of the relevant documents. Within the context of Due Process, a hyper-formalistic filing requirement is inappropriate, especially when a person has already filed timely a verified petition.

Under a strict application of AOPA, there would exist the potential for a state agency to be intentionally slow and uncooperative in producing a complete record, in hopes of securing a dismissal. In Izaak Walton, the Natural Resources Commission produced the specific documents the petitioner had requested in writing. Subsequently, the Office of the Attorney General argued diligently that the filing of those same documents, and not more, caused the trial court to lack jurisdiction. We recognize the challenge of coordinating the efforts of agencies responsible to different elected officials. Nonetheless, the State?s collective actions in Izaak Walton smacked of the fox guarding the hen house. Also as discussed in Izaak Walton, it would be a waste of resources to require the filing of irrelevant documents, potentially including notices, prehearing orders, every filing by every party, and documents relating to resolved issues. It is hard to imagine that the General Assembly intended these results.

On appeal, Reedus argues that the transcript and exhibits were not necessary for review of the ALJ?s decision. However, in his Petition to the trial court, Reedus asserted that the ALJ's decision was “unsupported by substantial evidence.” AOPA 5- 13(a)(2) requires the filing of “other documents identified by the agency as having been considered by it before its action and used as a basis for its action.” It is clear from the ALJ's order that he relied on the testimony in making his findings. Therefore, the filing of the evidence was explicitly required by AOPA 5-13(a)(2). Reedus' Petition was inadequate.

Conclusion. The trial court did not abuse its discretion in dismissing the Petition. Affirmed.

BARNES, J., concurs.
MATHIAS, J., concurs in result with opinion. [which begins] I concur in result but respectfully disagree with the majority's conclusion that a trial court may exercise its discretion in deciding whether to allow a petition for judicial review if the agency record is not filed in accordance with Indiana Code section 4-21.5-5-13. The timely and complete filing of the agency record is a condition precedent to the acquisition of jurisdiction to consider a petition for judicial review.

James E. Wingate v. State of Indiana - "In sum, having concluded that Wingate‟s trial counsel did not render deficient representation for failing to object to the filing of two additional, factually independent charges on the sixty-ninth day following Wingate‟s request for a speedy trial or for failing to object to the admission of certain evidence at trial, we affirm the judgment of the post-conviction court. "

NFP civil opinions today (8):

In the Matter of the Paternity of C.N.S. (NFP)

Armand Murat v. South Bend Lodge No. 235 of the Benevolent and Protective Order of Elks of the United States of America, et al. (NFP)

Paul Lockhart v. Corporate Svcs., Inc. (NFP)

In the Matter of T.P., b/n/f Carlos Perez v. Aimee Frank n/k/a Aimee Clark (NFP)

Dusty W. Rhodes v. Tracie M. Rhodes (NFP)

Wendy Byers, M.D. v. Linda Jean Quillen (NFP)

Eric W. Cole v. Review Board of the Indiana Dept. of Workforce Development and AVI Foodsystems (NFP)

Christina M. Striker v. Courtney W. Sparkman (NFP)

NFP criminal opinions today (14):

Fred McCormick v. State of Indiana (NFP)

Luis M. Eshebarria-Santiago v. State of Indiana (NFP)

Kassim Al-Awadi v. State of Indiana (NFP)

Paul Johnson v. State of Indiana (NFP)

Rachel Meriwether v. State of Indiana (NFP)

Booker T. Davis, Sr. v. State of Indiana (NFP)

Harry Roberson v. State of Indiana (NFP)

Marquis T. Hawkins v. State of Indiana (NFP)

Travis J. House v. State of Indiana (NFP)

Paul Hess v. State of Indiana (NFP)

Sean Welton v. State of Indiana (NFP)

Dwight Wilcoxson v. State of Indiana (NFP)

Eugene E. Clark v. State of Indiana (NFP)

Arthur Lee Gates, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on: James Bopp asks Calif. federal judge to stop disclosure of names of Prop 8 donors

Updating this ILB entry from yesterday, today the Sacramento Bee has this story headlined "Judge rejects bid to keep names of anti-gay marriage initiative backers secret." The story has a quote from "Richard Coleson, a Indiana-based elections law attorney hired by the campaign."

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to Courts in general

Law - "U.S. To Unveil Used-Car Database"

Here is a story that was on NPR's All Things Considered last evening. A few quotes:

A new car-titling system from the federal government will save car buyers in the U.S. up to $11 billion dollars a year, according to the Department of Justice. It's called the National Motor Vehicle Title Information System and it was 17 years in the making.

NMVTIS is designed to virtually stop something called "title washing." Scam artists have made a big business out of buying stolen, wrecked and flooded cars for pennies on the dollar, hiding the damage, and then selling them to unsuspecting buyers at full price.

Each state has different titling laws, creating a loophole of which scam artists take advantage. They'll re-title a damaged car in a series of states with different standards until the warning is gone — the title is "washed" clean. * * *

NMVTIS was created as part of the Anti-Car Theft Act of 1992, but it never got off the ground because of opposition from insurance companies, businesses that issue car-history reports, auto dealers, junkyard owners… Just about the only fans were law enforcement agencies and consumer advocates such as Bernard Brown, an attorney in Kansas City, Kan.

"No amount of persuasion would do -— foot-dragging, politics -— it's quite an awful story but at least we're here now," Brown said.

NMVTIS is still missing some key information, such as data about totaled cars from insurance companies and salvage yards. Only 36 states are submitting data so far, the rest will have to do so by the end of 2009.

"It will take us some time to get to the point where everyone is complying and all of the data is in the system," said Jim Burch, acting director of the Bureau of Justice Assistance at the Department of Justice. "But once we reach that point, consumers should feel very comfortable that the critical data is in the system and available to them."

Companies such as AutoCheck and Carfax offer car history information now, but it lacks much of the insurance data NMVTIS eventually will contain. Both companies will be allowed to buy NMVTIS data and include it in their databases.

More information here. And according to this map, Indiana is a participant.

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to General Law Related

Ind. Courts - "Marion County could have 3 death-penalty trials this year"

Jon Murray of the Indianapolis Star has this story today that begins:

A delay Thursday in the Hamilton Avenue slayings case could set the stage for three Marion County capital trials within four months later this year.

The surge would follow seven years without a death-penalty trial in Indiana's largest county, creating a schedule from October to January 2010 so packed that it could strain the Marion Superior Court budget.

Such high-profile cases typically last several weeks and require extra security, staff overtime and hotel rooms for sequestered jurors.

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to Indiana Courts

Law - "Dawn Johnsen, an IU law professor, is awaiting Senate approval"

Updating earlier ILB entries on IU-Blommington law prof Dawn Johnsen, Jon Murray of the Indianapolis Star has a lengthy feature today. Some quotes:

Dawn Johnsen, 47, joined IU in 1998 after spending five years at the Justice Department's Office of Legal Counsel, including two years as its acting assistant attorney general.

Obama nominated her this month to the same position in the influential behind-the-scenes office, pending confirmation by the U.S. Senate. No hearings have been scheduled.

Johnsen declined an interview, citing White House orders.

Her colleagues, students and legal opponents call her sharp and committed. The native New Yorker's politics lean to the left -- she once was the legal director of NARAL Pro-Choice America -- and in recent years, she has devoted her advocacy to concerns about terrorism policies under Bush. * * *

Saying "no," Johnsen told her students, is the most important role for a lawyer advising the White House on the boundaries of presidential power.

Johnsen has written critically about legal opinions under Bush that addressed the war in Iraq, interrogation methods, a military tribunal system denying certain rights to detainees captured in the war on terrorism, and Bush's use of presidential signing statements to ignore provisions of new laws.

"We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power," she wrote last year on Slate's legal blog. * * *

Conservatives expect Johnsen's team to provide legal support for much of Obama's agenda. She is a former board member of the American Constitution Society for Law and Policy, a liberal law group created in 2001 as a counterweight to the conservative Federalist Society.

"They're going to try to pull the office and the executive branch as a whole in a different direction," said Richard Garnett, a University of Notre Dame law professor and Federalist Society member.

But Garnett was quick to add: "Even if we disagree with the views of these appointees, we can say they are talented lawyers."

No stranger to controversy, Johnsen challenged attempts to regulate abortion in the late 1980s and early 1990s. A frequent opponent, Terre Haute attorney James Bopp Jr., general counsel to the National Right to Life Committee, said she is bright and committed but won't be an impartial adviser, the term he used to describe Bush's top attorneys. * * *

Johnsen has two young sons and teaches Sunday school. Her husband, John Hamilton, serves on the board of the Monroe County Community Schools and is president of City First Enterprises, which invests in neighborhoods in Washington, D.C. Hamilton headed the Indiana Department of Environmental Management and the Family and Social Services Administration under former Gov. Frank O'Bannon.

BTW, Hamilton, who headed IDEM under O'Bannon, is the brother of federal judge David Hamilton and both are nephews of former congressman Lee Hamilton, if I recall correctly.

Posted by Marcia Oddi on Friday, January 30, 2009
Posted to General Law Related

Thursday, January 29, 2009

Courts - Still more on "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

Updating yesterday's ILB entry, today Debbi Wilgoren and Amy Goldstein of the Washington Post report in a story that begins:

President Obama this morning signed a law that expanded the time frame in which workers can sue for discrimination they have experienced based on gender, race, national origin or religion.

The legislation -- the first he has signed since becoming president nine days ago -- is named for Lilly Ledbetter, who after years as a manager at Goodyear Tire & Rubber discovered she was being paid less than her male counterparts. She filed suit and won a jury verdict in 2003. But the lawsuit was deemed invalid, because it wasn't filed within six months of when the discrimination -- unknown to Ledbetter at the time -- began.

Ledbetter, now 70, became an icon for Obama during his campaign for the White House. Obama escorted her into the East Room this morning for the signing ceremony, and led a prolonged round of applause for her as they stood together at the podium.

Posted by Marcia Oddi on Thursday, January 29, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

For publication opinions today (9):

Thomas P. Harris v. Richard Denning and Susan K. Carpenter - "Thomas P. Harris appeals the grant of summary judgment in favor of Richard Denning and Susan K. Carpenter on Harris’s complaint alleging deceit, collusion, fraud, and misrepresentation during the course of their representation of Harris in post-conviction proceedings. On appeal, Harris raises a single issue: whether the trial court erred in granting Denning and Carpenter’s summary judgment motion. We affirm. "

Michael F. Fowler v. State of Indiana - "The corpus delicti rule provides that a crime may not be proved based solely on a
confession. Malinski v. State, 794 N.E.2d 1071, 1086 (Ind. 2003). To warrant the admission of a confession, the State must provide an inference that a crime was committed, which may be established by circumstantial evidence. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999). * * *

"The State presented sufficient evidence to provide an inference that a crime was committed, so as to establish the corpus delicti. "

In John D. Giovanoni, II v. Review Board and Clarian Health Partners, Inc. , an 18-page opinion, Judge Crone writes:

John D. Giovanoni II appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“the Board”) denying his application for unemployment benefits. We reverse.

Giovanoni raises one issue on appeal, which we restate as follows: whether he was
discharged for just cause.

[Clarian] discharged Giovanoni, a pharmacy technician, after he accumulated eight absences in violation of its no-fault attendance policy. * * *

Having determined that an attendance policy that subjects employees to termination for absences and tardiness regardless of the reason is unreasonable for purposes of Section (d)(2) and that all discharges for absences and tardiness must be examined under Section (d)(3), we now turn to the case at bar. Here, Clarian's attendance policy exposed an employee to termination regardless of the reason for the employee‟s absence. As such, it is unreasonable for purposes of Section (d)(2). Because Giovanoni was discharged for unsatisfactory attendance, we must determine whether Giovanoni has established good cause for his absences under Section (d)(3). * * *

Under these circumstances, we conclude that Giovanoni established good cause for his absences and tardiness. Accordingly, Giovanoni was not discharged for just cause, and therefore we reverse the Board‟s decision.

ROBB, J. concurs.
BROWN, J., dissents with separate opinion. * * * I conclude that Giovanoni failed to demonstrate that Section (c)(2) exempted him from disqualification, and I would affirm the Board‟s decision that he was discharged for just cause.

Anthony L. Todd v. State of Indiana - "Anthony L. Todd appeals from his conviction for Failing to Register as a Sex Offender, as a Class D felony, following a bench trial. Todd raises a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We affirm. "

In Savannah Linley Ann Nelson Ramirez, by her father, Stephen Ramirez v. James A. Wilson and Suzy-Q Trucking, a 20-page 2-1 opinion, Judge Bailey writes:

[Ramirez appeals the trial court's grant of partial summary judgment in favor of Appellees upon a claim under Indiana's child wrongful death statute, IC 34-23-2-1. We affirm.]

Ramirez raises two issues: I. Whether the trial court erroneously granted partial summary judgment upon a determination that a full-term fetus is not a “child” under the statute; and II. Whether the statute, as interpreted by our Supreme Court in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002), violates the privileges and immunities clause of the Indiana Constitution. * * *

Ramirez contends that S.R., a full-term and viable fetus, should be considered a “child” pursuant to IC 34-23-2-1 * * *

In Bolin, our Supreme Court reviewed a case where the plaintiff had suffered the miscarriage of an eight to ten week old fetus after an automobile accident and had brought a claim for wrongful death under the statute. The trial court granted the defendant‟s motion for summary judgment, and this Court affirmed the trial court. On transfer, our Supreme Court undertook “to determine the scope of the term „child‟ in the Wrongful Death Statute.” 764 N.E.2d at 207. Based upon the language of the statute, the Court ultimately concluded that “the legislature intended that only children born alive fall under Indiana‟s Child Wrongful Death Statue.” * * *

In Horn v. Hendrickson, 824 N.E.2d 690 (Ind. Ct. App. 2005), this Court was asked to determine whether Bolin was inapplicable where a “viable” fetus of six months gestation had died as a result of a vehicular accident. * * * The Horn Court acknowledged that Supreme Court precedent is binding until it is changed either by that court or by legislative enactment, but also observed that “our supreme court‟s words and opinions are not carved in stone, and it is not inappropriate for the parties or the judges of this court to ask the court to reconsider earlier opinions.” * * *

Inasmuch as there exist no genuine issues of material fact, and the Appellees are entitled to judgment as a matter of law on the claim under Indiana‟s child wrongful death statute, the trial court properly granted partial summary judgment. Affirmed.

BRADFORD, J., concurs.
RILEY, J., dissents with opinion. [which begins on p. 8 of 20] I respectfully dissent from the majority‟s decision to affirm the trial court's grant of partial summary judgment in favor of the Appellees. In essence, the majority's opinion refuses to “proceed in direct conflict with controlling supreme court precedent,” while at the same time, it implicitly acknowledges that the result reached in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002) is wrong. * * *

[and concludes on p. 20] In light of this dissent, the Horn decision, and this majority‟s decision, I implore the parties here to seek transfer to the supreme court, requesting a modification of its Bolin decision.

In Indianapolis Concrete Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development , a 10-page opinion, Judge Brown writes:
Indianapolis Concrete raises one issue, which we revise and restate as whether the ALJ erred as a matter of law in his conclusion that Indianapolis Concrete is a successor employer of Indy Concrete, Inc., under Ind. Code § 22-4-10-6. We reverse. * * *

In determining whether one employer has acquired substantially all of the assets of another, other courts have considered several factors, including acquisition of: (1) manufacturing equipment and machinery; (2) office equipment; (3) corporate name; (4) inventories; (5) covenants not to compete; (6) possession of premises; (7) good will; (8) work in progress; (9) patent rights; (10) licenses; (11) trademarks; (12) trade names; (13) technical data; (14) lists of customers; (15) sales correspondence; (16) books of accounts; and (17) employees transferred. See Robert Snyder & Assocs., Inc. v. Cullerton, 221 N.E.2d 148, 154 (Ill. Ct. App. 1966); see also Imprint Techs., Inc. v. Comm'r of Econ. Sec., 535 N.W.2d 372, 376 (Minn. Ct. App. 1995); Pee Dee Nursing Home, Inc. v. S.C. Emp. Sec. Comm'n, 399 S.E.2d 777, 779 (S.C. 1990); Riteway Oil & Gas Co., Inc. v. Iowa Dep't of Job Serv., 423 N.W.2d 550, 551 (Iowa 1988).
[ILB Note: Apparently there are no Indiana cases]

Nicholas W. Cooper v. State of Indiana - "On direct appeal from the revocation of his probation, Nicholas W. Cooper asserts that he did not knowingly and intelligently waive his right to counsel. We affirm. "

Travis L. Roberson v. State of Indiana - "Travis Roberson appeals following his guilty plea to Attempted Murder, a Class A felony. Roberson contends that the trial court abused its discretion in waiving him into adult court and that his thirty-eight-year sentence is inappropriate in light of the nature of his offense and his character. We affirm."

Fiducial Investment Advisors v. Troy C. Patton - "Fiducial Investment Advisors, Inc. (“FIA”) appeals from the trial court's confirmation of an arbitration award in favor of Troy C. Patton (“Patton”). FIA presents the following issues for review: 1. Whether the arbitration panel exceeded its authority when it determined that FIA was liable to Patton for vacation pay and unreimbursed business expenses. 2. Whether the arbitration panel's award of attorney's fees was procured by fraud. We affirm. "

NFP civil opinions today (3):

In Phillip V. Frederick v. Discover Bank (NFP), a 10-page opinion in a pro se case, Judge Bradford concludes:

“[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.” Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). “Consistent with the legislative history, verification is only intended to eliminate the . . . problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.'” Id. (quoting S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699). There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt. Id. Given this authority and the inapplicability of Spears and Fields, we are not inclined, on this record, to reverse the trial court's summary judgment.

Having reached this conclusion, we wish to point out that it is not an endorsement of the debt collector's practices in this case. Wright & Lerch's October 24, 2005 response letter, purportedly of verification, contained no actual statement or independent documentation of the debt owed, and the debt it referenced, the $12,283.11 requested in the notice, was not the amount ultimately sought in its action against Frederick. Such minimal efforts at verification do not appear to be in the spirit, if the letter, of section 1692g(b), which requires a copy of the debt verification to be sent to the debtor. Were this a more complete appellate record, we would be inclined to reverse on these grounds, especially given the absence of any effort by the appellee to provide a brief or assist in any way with our understanding of its actions or lack thereof.

A.D. v. Allen Co. Dept. of Child Services (NFP) - "April D. (“Mother”) appeals the involuntary termination of her parental rights to her children, T.W. and T.D., claiming there is insufficient evidence supporting the trial court's termination order. We affirm. "

Alan J. Lape v. Debra R. Lape (NFP) - "Alan J. Lape (“Husband”) appeals and Debra R. Lape (“Wife”) cross-appeals from the dissolution decree terminating their marriage. We affirm in part, reverse in part, and remand with instructions. "

NFP criminal opinions today (8):

Meghan Lea Browning v. State of Indiana (NFP)

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

Sherman Harris v. State of Indiana (NFP)

Ngun Thang v. State of Indiana (NFP)

James R. Worthington v. State of Indiana (NFP)

Brian Williams v. State of Indiana (NFP)

Larry A. Hellyer v. State of Indiana (NFP)

Eric Leo Armstrong, IV v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 29, 2009
Posted to Ind. App.Ct. Decisions

Courts - James Bopp asks Calif. federal judge to stop disclosure of names of Prop 8 donors

Terre Haute attorney James Bopp was featured this morning in a story on NPR's Morning Edition. Read or listen to it here.

Posted by Marcia Oddi on Thursday, January 29, 2009
Posted to Courts in general

Ind. Courts - "County's protective order projects starts"

Diane Krieger Spivak reports today in the Gary Post-Tribune in a story that begins:

CROWN POINT -- Lake County's four domestic violence courts are getting more requests than ever for protective orders, officials say.

But the 9-page documents often arrive at the judge's bench incomplete or incorrectly filled out. In some cases, they don't arrive at all because victims often are too traumatized to complete paperwork.

To alleviate the problem and protect as many victims as possible, the Lake County Sheriff's Department's Domestic Violence Task Force is partnering with the Indiana Coalition Against Domestic Violence and local shelters to launch the Protective Order Project.

For three hours this morning, ICADV's legal director Kerry Blomquist will train volunteers to help domestic violence victims complete the often daunting forms. The Sheriff's Department is videotaping the session and will distribute copies to area shelters, said Patti Van Til, co-chair of the Domestic Violence Task Force.

"Domestic violence is a serious problem in Lake County," said Van Til, an administrative deputy chief for the Sheriff's Department. "It's an ever-present issue."

A protective order is a document, signed by a judge, that prohibits contact between specific parties. Besides being daunting, directions for the application can be very intimidating because they call for a description of the abusive actions against victims, Van Til said.

"Revisiting that can be very emotional," she said.

Posted by Marcia Oddi on Thursday, January 29, 2009
Posted to Indiana Courts

Environment - "IDEM director gets statehouse grilling"

John Byrne's story today in the Gary Post-Tribune reports:

State Department of Environmental Management Commissioner Thomas Easterly faced a barrage of questions Wednesday from legislators convinced changes at the agency will make it tougher to protect Hoosiers from environmental lawbreakers.

Testifying before the House Environmental Affairs Committee, Easterly defended decisions to shutter IDEM's enforcement office and cancel local air monitoring contracts in Gary, Hammond and elsewhere.

The new set-up will make the department more efficient and accountable, Easterly said, while saving about $1.5 million annually.

IDEM announced recently that the local air quality contracts would be canceled effective March 31. Hammond will lose roughly $282,000 in 2009, Gary about $18,000.

IDEM inspectors will do the air quality inspections at businesses currently completed by local employees, Easterly said.

"This will eliminate the duplication of services," he said. * * *

But Rep. Ryan Dvorak, D-South Bend, argued most of the money saved would come in the form of grants which could not in any case be applied to the state's bottom line.

"This is just sort of an accounting trick, then, to satisfy state accountants," Dvorak said.

And Rep. Mara Candelaria Reardon, D-Munster, told Easterly the legislature appropriated the money so IDEM would use it. "I don't think the intent, when the budget was drafted, was to give IDEM a cushion of cash flow," Candelaria Reardon said.

Easterly also faced criticism from Democrats about the decision to fold the agency's enforcement office into its air, water and land divisions.

The commissioner insisted he's trying to speed responses to truly important environmental violations, while working with businesses that have made small mistakes to quickly become compliant.

He said there has been no improvement in the rate of environmental compliance under the current system over the past four years.

But Dvorak said the inevitable impression is that IDEM plans to take it easier on businesses breaking environmental law.

"It can sort of be read that too many people were getting fined," he said.

A recent change in IDEM's definition of the most serious class of violations also drew fire from the committee.

Patrick Guinane of the NWI Times reports under the headline "State environmental chief defends agency shakeup." Some quotes:
Indiana's chief environmental regulator assured skeptical lawmakers Wednesday that decentralizing his agency's enforcement division and ending partnerships with Gary, Hammond and other cities won't make it easier to befoul the Hoosier state.

Thomas Easterly, commissioner of the Indiana Department of Environmental Management, told a state House panel that compliance with pollution permits for power plants, refineries and other facilities has stagnated at 93.5 percent the past four years. So last fall he initiated a plan to eliminate IDEM's stand-alone enforcement division and move those regulators into compliance divisions for air, land and water quality.

"We have to shake up the system," Easterly said. "We're going to do exactly the same monitoring ... and all the people who violate will still go through enforcement."

Easterly said the move should improve communication between compliance staff who monitor permit holders and the enforcement officers who levy fines and other punishments. But the testimony failed to sway some lawmakers.

"I just didn't think any of his rationale was acceptable," said Rep. Mara Candelaria Reardon, D-Munster. "You can develop a structure with the enforcement division that works. Make your deputies accountable. You're in charge."

Easterly said half of the U.S. Environmental Protection Agency's 10 regional offices handle enforcement in the manner the state plans to adopt. IDEM plans to meet with the EPA's Chicago office to discuss the change.

Legislators also questioned IDEM's decision to suspend about $2.5 million in annual recycling grants to local agencies, a move Easterly contends is necessary amid a state budget crunch and a declining market for recyclable materials.

IDEM also in December canceled $2 million in annual air monitoring contracts with Anderson, Evansville, Gary, Hammond, Indianapolis and Vigo County. Easterly said IDEM believes it can handle the work for $500,000 a year, but local officials say the move will result in less oversight.

Posted by Marcia Oddi on Thursday, January 29, 2009
Posted to Environment | Indiana Government

Ind. Decisions - Still more on: Upcoming oral arguments this week

Remember, three oral arguments before the Supreme Court this morning, beginning at 9 AM.

Here is the ILB preview from Monday, and here are links to briefs in two of the cases.

To paraphrase some comments a reader has sent about the cases:

Mosley involves the issue of what should appointed counsel do when the issues on appeal are not strong? The court of appeals has encouraged Anders briefs, but will, or should, the supreme court go that way?

Henri involves important issues surrounding communications during jury deliberations. It may be a lively argument with questions about confiscating cell phones during deliberations, especially now that phones can do so much more. It will affect civil and criminal cases.

Posted by Marcia Oddi on Thursday, January 29, 2009
Posted to Upcoming Oral Arguments

Wednesday, January 28, 2009

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

For publication opinions today (2):

In Dale Redmond v. State of Indiana , a 7-page opinion, Judge Vaidik writes:

A decade after he was sentenced to consecutive sentences under the same cause number (and soon after he began serving his second sentence), Dale Redmond filed a motion to modify his second sentence pursuant to Indiana Code § 35-38-1-17(a). The trial court denied the motion, and Redmond appeals. Concluding that Indiana Code § 35-38-1-17(a) requires a defendant to file a motion to modify within 365 days after he begins serving the entire sentence imposed him (and not individual sentences under the same cause number) and the triggering date is the date the trial court imposes the sentence, we affirm the trial court. * * *

We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical. The term “impose” was contained in the 1983 version of the statute, not contained in the 1995 version at the time Liggin was decided (and found to be dispositive in that case), and then added back in 2005. When construing a statute, we presume the legislature was aware of any court decisions upon the subject matter of the legislation being construed. See Holmes v. Jones, 719 N.E.2d 843, 848 (Ind. Ct. App. 1999). As such, when reading the current version of Indiana Code § 35-38-1-17(a), we conclude that the introductory clause, within 365 days after a convicted person begins serving the sentence imposed on him, means within 365 days after a convicted person begins serving the entire sentence imposed on him (and not individual sentences under the same cause number), the court may reduce or suspend his sentence. The triggering date is the date the trial court imposes the sentence.
[See ILB comment at the end of this entry]

In Patrick Ryan v. State of Indiana , a 10-page opinion, Judge Darden writes:
Patrick Ryan appeals the trial court’s order denying his petition for expungement of the record of his arrest for one count of child molesting, as a class C felony. We reverse and remand. * * *

The statute provides that the “individual may petition the court for expungement of the records related to the arrest” when the individual was arrested but no criminal charges were filed, or when “all criminal charges filed against [the] individual [we]re dropped because of a mistaken identity; no offense was in fact committed; or there was an absence of probable cause.” Ind. Code § 35-38-5-1. Ryan was arrested and charged with child molesting, but the criminal charge was “dropped,” id., or dismissed, after the alleged victim’s statements to her mother and to a CPS worker were found unreliable and held to be inadmissible at trial. Thus, the statute authorized the filing of Ryan’s verified petition for expungement. * * *

In sum, the language of the statute unambiguously authorizes the summary denial of a petition only in limited circumstances, which are reflected by trial court findings in that regard. See I.C. §35-38-5-1(d)(3). Here, the trial court made no such determination on Ryan’s petition. Therefore, the trial court was required to set a hearing on the matter. Reversed and remanded.
RILEY, J., concurs.
VAIDIK, J., concurs in result with separate opinion.

NFP civil opinions today (1):

Tammy L. Stewart v. Aydrian J. Howard (NFP) - "Because we find that the
trial court properly excluded the spinal surgeon’s opinions and diagnoses and that
Tammy has failed to show any actual bias or prejudice, we affirm the trial court. "

NFP criminal opinions today (1):

Sidney Tolbert v. State of Indiana (NFP)
_______________

ILB comment on Redmond v. State. The Court writes:

We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the
term “imposed” to be critical.
Here is PL 2-2005 (HEA 1398), SECTION 123, setting out the amendment. SEC. 123 begins on p. 98.

What is confusing to me is that this is a Code Correction Bill. A correction bill is introduced at the beginning of each session to correct technical errors made in the last session - typos, reconciling where two laws amended the same section, etc. Scroll though the act and you will see that.

Code correction bills never make substantive change. Yet there is no clue as to where the "technical" changes made to IC 35-38-1-17 came from. What error are they intended to remedy?

A look at the history line for the current version of IC 35-38-1-17 reads:

As added by P.L.311-1983, SEC.3.
Amended by P.L.317-1985, SEC.1;
P.L.204-1986, SEC.1;
P.L.240-1991(ss2), SEC.92;
P.L.291-2001, SEC.224;
P.L.2-2005, SEC.123.
I've also looked up the 2001 amendment, and it does not appear relevant, as it does not affect subsection (a). Find it here: PL 291-2001 (HEA 1001), SECTION 224. (Find it on p. 227.)

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "St. Joseph County Probate Judge to issue pay raises despite council's objections"

So reads the headline to this story by Troy Kehoe from WSBT TV Mishwaka. Some quotes from the lengthy story:

A new budget battle is underway over pay raises for St. Joseph County employees. Last year, the County Council mandated a pay freeze for all county employees, as it tried to fill a $6 million loss in revenue. But, one department head has now issued his own mandate, saying his employees will get raises in 2009.

Notice of an impending "mandate" from St. Joseph County Probate Court Judge Peter Nemeth was given to the County Council during a series of committee meetings Tuesday night.

Judge Nemeth also oversees St. Joseph County's Juvenile Justice Center.

In the letter, Nemeth calls the Council's "refusal to permit raises, unjust, unfair and discriminatory." * * *

Under Indiana law, judges can "mandate" the amount of money they need to "operate their courts sufficiently." But, ultimately, their budgets are set by the County Council, and approved by County Commissioners.

"Courts are kind of subject to the fiscal bodies," Nemeth said. "We are a separate branch of government, but we do need to have sufficient funds to be able to operate. And the law provides that -- if we do not receive those funds, or feel we're not receiving those funds -- we have the right to issue mandate proceedings."

For several years, Judge Nemeth says he's stopped short of issuing similar mandates, in part, because the County Council appropriated the funded he'd asked for in recent budgets. But, several times, he says the proposed pay raises included in it were vetoed by County Commissioners.

"Because of that, most [Probate Court employees] have gone -- at least 3 years minimum -- some of them as many as 5-6 years without getting a pay increase," Nemeth said.

Nemeth's proposed mandate would change that; boosting Probate Court employees' pay by a total of $60,208. Including fringe benefit costs, Nemeth estimates the total cost to be around $79,000. Pay would be "retroactive" to January 1, 2009.

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Indiana Courts

Courts - "Ky. court will hear appeal by Amish: Safety triangles at issue in case "

Updating this ILB entry from Nov. 18, 2008, Peter Smithof the Louisville Courier Journal reports today:

The Kentucky Court of Appeals has agreed to hear the appeal of three Amish men who were convicted in Graves County last year for failing to use bright safety emblems on their horse-drawn buggies.

The court will hear their claim that their religious beliefs -- which oppose the use of bright colors and "worldly" symbols -- are being violated by a state law requiring orange-red triangles on slow-moving vehicles.

"I'm very pleased that they've decided to look into this matter," said Murray attorney Robin Irwin. He is representing Jacob Gingerich, Emanuel Yoder and Levi Zook, who were each assessed $148 in fines and court costs at last February's trial.

Graves Circuit Court Judge Timothy Stark later upheld their convictions, ruling that the law didn't violate their religious freedom because it was "generally applicable" to all users of slow-moving vehicles and "not aimed at particular religious practices."

In November, seven Amish men were convicted on a total of 10 counts in a Graves District Court trial. Their attorney is seeking a review in Graves Circuit Court. * * *

The Swartzentrubers say they're willing to use lanterns and white reflective tape that outlines the rear of their buggies, rather than forming a symbolic shape. They believe relying on a manmade symbol such as a triangle conflicts with trusting in God alone for their safety. Their modesty code also prohibits the use of bright colors.

Irwin argues that under the religious-freedom clauses of the U.S. and Kentucky constitutions, the state has to accommodate such alternatives.

Stark's ruling disagreed. He cited a U.S. Supreme Court ruling saying any person could "become a law unto himself" by challenging any regulation on religious grounds.

In 1985, a Barren District Court judge acquitted a Swartzentruber man on a similar charge, saying his religious beliefs took priority over the state's law, but that case is not binding on other counties' courts.

Pennsylvania and Minnesota courts have also ruled in favor of Swartzentrubers in similar cases on the basis of their state constitutions, according to attorney William Sharp of the American Civil Liberties Union of Kentucky, who represented defendants in the November trial.

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Courts in general

Courts - More on "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

Updating this ILB entry from Jan. 5th, Robert Pear of the NY Times reports:

Congress gave final approval on Tuesday to a civil rights bill providing women, blacks and Hispanics with powerful new tools to challenge pay discrimination in the workplace. It is likely to be the first significant legislation signed by President Obama.

The 250-to-177 vote in the House came five days after the Senate passed the bill, 61 to 36.

The bill, named for Lilly M. Ledbetter, a longtime supervisor at a Goodyear tire plant in Alabama, would make it easier for workers to win lawsuits claiming pay discrimination based on sex, race, religion, national origin, age or disability.

See also this story by Amy Goldstein of the Washington Post. A quote:
Under the bill, workers may bring a lawsuit for up to six months after they receive any paycheck that they allege is discriminatory. The high court had held that such cases could be brought only within six months of the discrimination's beginning, rejecting a long-held interpretation by lower courts and the U.S. Equal Employment Opportunity Commission that each paycheck represented a fresh act of discrimination.

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Courts in general

Legislative Benefits - More on "Transparency bills get no respect"

The Fort Wayne Journal Gazette has an editorial today on the new lobbying career of former state Senate leader Robert Meeks. A quote:

Senate Bill 15, sponsored by Sen. Patricia Miller, R-Indianapolis, would ensure that the influence of former lawmakers would at least be tempered. It would establish a one-year limit before a legislator could lobby before the General Assembly.

Its chances for passage, sadly, are poor. It’s been assigned to the Rules Committee, where legislation frequently goes to die.

Meeks, a LaGrange Republican, joined Boyle & Associates within weeks of stepping down from his powerful Senate post. The firm is directed by a close associate of former Senate President Pro Tem Robert Garton.

Meeks has always demonstrated great integrity as a public servant, and this page doesn’t doubt that he would continue to do the same as lobbyist. The lobby registration form he filed discloses multiple issues he might be lobbying on, including the budget, economic development, property taxes and alcoholic beverages. In the 2008 session, his new employer lobbied on behalf of Indiana Public Broadcasting, Harrah’s and Central Indiana Ethanol.

Meeks joined an ever-growing collection of lawmakers-turned-lobbyists: John Gregg, Thomas Fruechtenicht, Matt Whetstone, Michael Smith, Mike Phillips, Sam Turpin, Pat Kiely, Robert Kuzman and Paul Mannweiler, among others.

“Again, it’s just one more reason to do something this year,” said Julia Vaughn, policy director for Indiana Common Cause.

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Legislative Benefits

Ind. Courts - "Clark County contracts collections for docket fees"

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

Clark County officials hope to collect more than $800,000 in past-due child support docket fees by contracting out collections.

Records show the county is owed more than $1.3 million in docket fees, but that number is probably not accurate, circuit and superior court Clerk Barbara Haas said. The Indiana Support Enforcement Tracking System’s records include duplicate fees and other inaccuracies that will drive the collectable figure down.

Between $850,000 and $900,000 could be collected, which will go to the county’s general fund, Haas said.

Individuals ordered to pay child support are required to pay support docket fees to cover administrative costs incurred by the courts. These fees are owed directly to the county in addition to the amount owed to the custodial parent.

To collect those fees, the county has contracted Eagle Accounts Group LLC. Eagle Accounts will charge a 30 percent collection fee in addition to the docket fee charged by the county. The county is paying Eagle nothing up front for this service, Haas said.

Docket fees owed to the county range between $30 and $220 per person, Haas said.

“None of these are large amounts,” Haas said. “There’s just a large number of them.”

Eagle Accounts will contact those who owe docket fees to the county by mail, according the to the company’s Web site.

Despite the fact that these fees could be as much as 10 years old, Eagle Accounts does not report individuals with delinquent docket fees to national credit bureaus until at least 30 days after notice is sent, according to the company’s Web site.

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Indiana Courts

Ind. Courts - "'Appeals on Wheels' rolls law, public speaking into one lesson"

Yesterday a Court of Appeals panel heard oral arguments in the case of Michael W. George vs. State of Indiana. Today Sophia Voravong reports on the event in this story and photo in the Lafayette Journal Courier. A quote:

About 500 people, among them members of the Tippecanoe County Bar Association and students from West Lafayette and Central Catholic, packed into the auditorium at West Lafayette Jr.-Sr. High School to watch the hourlong oral argument.

Stemming from an appeal out of Shelby Superior Court, the case dealt with a man, Michael W. George, who was arrested and subsequently convicted for possession of a controlled substance after he initially was stopped for speeding.

George, whose driver's license was suspended, had his vehicle impounded, and morphine pills were found inside.

His attorney, Stephen Gray, argued Tuesday that the inventory search was unconstitutional and that the trial court erred by admitting the pills into evidence.

Deputy Attorney General Mellisica Flippen countered that the search was legal under both the Indiana and U.S. constitutions and necessary for liability should George counter that items in the vehicle were missing.

An opinion on the case has not yet been issued by the appeals court.

But afterward, judges John Baker, Margret Robb and Cale Bradford, along with Gray and Flippen, answered questions from the audience.

Posted by Marcia Oddi on Wednesday, January 28, 2009
Posted to Ind. App.Ct. Decisions

Tuesday, January 27, 2009

Law - ABA Journal has a special recession issue

Access it here.

And the new February issues features Abraham Lincoln, Esq. Access it here.

Posted by Marcia Oddi on Tuesday, January 27, 2009
Posted to Courts in general

Ind. Decisions - More on: Upcoming oral arguments this week [Updated]

Supplementing this ILB entry from Monday, the ILB is pleased to report it will be able to post briefs for some (or all) of this week's Supreme Court arguments. Check back for later docs.

Case Transfer petition Response Reply
Bailey v. State --- --- ---
Mosley v. State Link --- Link
Henri v. Curto Link Link Link

Posted by Marcia Oddi on Tuesday, January 27, 2009
Posted to Upcoming Oral Arguments

Ind. Law - "Stalking called underreported, high-tech crime"

Diane Krieger Spivak had this report yesterday in the Gary Post-Tribune. It is based on a new report, Stalking Victimization in the United States, from the DOJ Bureau of Justice Statistics.

Posted by Marcia Oddi on Tuesday, January 27, 2009
Posted to Indiana Law

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

For publication opinions today (3):

In Alicia Bonilla v. Commercial Services of Perry, Inc., et al, a 17-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-defendant Alicia Bonilla (Alicia) appeals the trial court’s judgment in favor of appellee-plaintiff Commercial Services of Perry, Inc. (“Perry”), as successor in interest to the Federal Deposit Insurance Corporation, which was the successor in interest to Industrial National Bank. Alicia raises a number of arguments, which we restate as follows: (1) the trial court’s judgment that Alicia is liable for the mortgages in question is clearly erroneous, and (2) the trial court’s order of damages pursuant to the promissory notes is clearly erroneous. Finding no error, we affirm. * * *

Notwithstanding the absence of evidence regarding the specific terms of the promissory notes, the record does contain undisputed evidence establishing the terms, dates, amounts of, and interest rates on the two mortgages. Additionally, Alicia conceded that no payments have been made on these mortgages since they were executed over twenty years ago. Although we do not have the precise terms of the promissory notes in the record, the only reasonable inference to draw from this evidence is that the failure to make a single payment on the notes in over twenty years is an event of default. It would be erroneous to draw any other conclusion. Having drawn that conclusion, the only remaining task is calculating the amount owed by Alicia based on the undisputed numbers in the record. Inasmuch as the parties raise no argument about the trial court’s calculation, we affirm.

MATHIAS, J., concurs.
BROWN, J., concurs in part and dissents in part with opinion:

I respectfully concur in part and dissent in part. I concur with the majority’s analysis and determination of the first issue, namely that Bonilla is liable under the mortgages. As to the second issue, I dissent, finding that Perry failed to prove default under the terms of the notes. * * *

Here, evidence on the essential terms is missing. Specifically, no evidence was presented on the terms of the promissory notes, the payment requirements, or what constituted an event of default. Were the notes due in one year? Were they due in ten years? Were they due in 30 years? Although the majority infers default because Bonilla testified that no payments had been made, without the terms of the notes and the payment requirements, I am unable to agree that the evidence presented proved that the loans are in default.

In Robert L. Young d/b/a Bob Young Lodging v. Glen Marling , a 15-page opinion, Judge Vaidik writes:
Robert Young, doing business as Bob Young Logging (“BYL”), appeals from a decision of the full Worker's Compensation Board (“the Board”) affirming the single hearing officer's decision that Glen Marling is entitled to reimbursement for certain medical treatments he received after an injury arising out of and in the course of his employment with BYL. Specifically, BYL argues that the Board's decision is erroneous because Marling is not entitled to reimbursement under the Indiana Worker's Compensation Act (the Act) because the treatments were unauthorized and the findings of fact and conclusions of law are insufficient to support the conclusion that Marling is entitled to reimbursement for these treatments. Because we find that the medical treatments were authorized by a physician chosen by BYL's insurance carrier and that the Board?s findings of fact and conclusions of law are sufficient to support the award, we affirm.
In Emmanuel Stringer v. State of Indiana , an 8-page, 2-1 opinion, Judge Riley writes:
Stringer raises one issue on appeal, which we restate as follows: Whether the trial court erred when it accepted Stringer’s counsel’s stipulation to a prior conviction which established the basis for the enhanced offense of auto theft without first determining that Stringer’s stipulation was made voluntary and intelligently. * * *

Stringer’s challenge to the knowing and voluntary nature of his plea due to the inadequacies of the trial court’s advisements to him cannot be undertaken on direct appeal. Instead, the supreme court has created an avenue for claims addressing the validity of guilty pleas by adopting Indiana Post-Conviction Rule 1 which provides that “post-conviction relief is exactly the vehicle for pursuing claims for validity of guilty pleas.” Tumulty, 666 N.E.2d at 396. Therefore, Stringer can seek a review of his guilty plea only by filing a petition for post-conviction relief.

Based on the foregoing, we conclude that a direct appeal is not the appropriate avenue for Stringer to challenge the validity of his plea of guilty to the enhancement charges against him. Accordingly, his convictions are affirmed.

DARDEN, J., concurs.
VAIDIK, J., dissents with separate opinion [which begins] I respectfully dissent from the majority’s conclusion that Stringer pled guilty to the enhancement of his auto theft conviction from a Class D felony to a Class C felony based on his previous conviction for auto theft. Rather, I believe that Stringer stipulated to the admission of the certified copy of his prior conviction for auto theft and that, based on this evidence, the trial court found him guilty of the enhancement. As such, Stringer has properly brought this direct appeal, and I would affirm the trial court.

NFP civil opinions today (1):

Simon Fire Equipment & Repair, Inc. v. Town of Cloverdale, Indiana (NFP) - "The sole issue for our review is whether the trial court erred in entering judgment in favor of the Town. * * *

"After discussing the financing, the Council passed a restated motion “to accept the bid of Simon for the 2001 demo truck . . . subject to favorable financing after sitting down with financial advisors and making sure that the Town is comfortable with the financial arrangements.” * * * The Council notified Simon that it would accept its bid, subject to the favorable financing. * * *

"Simon does not challenge the trial court's findings. Rather, Simon?s sole contention is that the trial court's findings do not support its conclusions. Specifically, Simon argues that the “decision not to buy the fire truck had nothing to do with the availability of favorable or comfortable financing; the Town merely decided not to buy the fire truck and rejected the available financing package.” * * *

"Vickroy and Sublett both testified that even though the financial package was favorable, they were not comfortable with the financial impact of the truck purchase on the financial health of the Town. This evidence supports the trial court's conclusion that the Town was not comfortable with the financing. Because this condition precedent was not fulfilled, the trial court did not err in granting judgment in favor of the Town. Affirmed."

NFP criminal opinions today (7):

Calvin Johnson v. State of Indiana (NFP)

Robert Hardesty v. State of Indiana (NFP)

Daniel Wasden v. State of Indiana (NFP)

Howard Howe v. State of Indiana (NFP)

Kenneth A. Neal v. State of Indiana (NFP)

Damien Pace-Anders v. State of Indiana (NFP)

Orlando Dillard v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 27, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "City water and sewer contracts to be put up for bid"

The ILB has had numerous entries over the no-bid sewer controversy in New Albany. Today Jimmy Nesbitt reports in the Evansville Courier & Press in a story that begins:

Contracts to manage Evansville's water and sewer systems will be bid publicly this year — the first time since 1992.

Mayor Jonathan Weinzapfel said Monday the city will issue requests for proposals to manage the water and sewer systems in June. A new utility agreement could be in place by the end of the year, he said. The sewer system currently is managed by Environmental Management Corp. American Water manages the water system. Their contracts historically have been renewed every five years.

Now that they will be publicly bid, the competition for the multimillion dollar contracts could be intense. The Environmental Management Corp. receives about $5 million annually and American Water about $6 million. Weinzapfel said the city also will consider managing the utilities, which serve roughly 60,000 customers.

Opening the contracts to a competitive bidding process could increase efficiency and reduce costs for both the city and utility customers, Weinzapfel said.

"I think it's important that we have that comparison, soliciting bids from a variety of companies that do this work, so we can compare and contrast," he said. "The companies will be able to bid on managing one or the other or both. And we want to compare those bids with what it would cost the city if it actually went back in house. ..."

Weinzapfel said the decision to seek public bids was not related directly to the performance of American Water and the Environmental Management Corp.

Posted by Marcia Oddi on Tuesday, January 27, 2009
Posted to Indiana Government

Ind. Decisions - "Appeals court overturns 2007 rape conviction"

Last Friday's split Court of Appeals opinion in the case of Otho L. Lafayette v. State of Indiana (see ILB summary here, 2nd case) is the subject of a brief story today by Bill Dolan in the NWI Times. A quote:

The appeals court ruled 2-1 last week that 39-year-old Otho L. Lafayette was denied a fair trial when Criminal Court Judge Thomas P. Stefaniak Jr. permitted testimony that Lafayette was involved in prior sexual misconduct 10 years earlier.

Diane Poulton, a spokeswoman for the prosecutor's office, said Monday they will ask the Indiana attorney general's office to appeal the decision to the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, January 27, 2009
Posted to Ind. App.Ct. Decisions

Monday, January 26, 2009

Law - More on: Obama appoints Cass Sunstein as head of the Office of Information and Regulatory Affairs

Updating this ILB entry from Jan. 8th, Tom Hamburger and Christi Parsons of the LA Times report today in a lengthy article that explores concerns voiced by labor and environmental groups with the Sunstein appointment. A quote:

Few labor and environmental groups offered to comment on Sunstein's nomination. But one organization of liberal lawyers will publicly cast a stone at Sunstein today: The Center for Progressive Reform plans to release an 18-page review of Sunstein's work by member scholars expressing concern. [ILB - here is a copy]

"Professor Sunstein's long track record on regulatory issues is decidedly conservative. As longtime colleagues of Professor Sunstein who have debated him numerous times in a variety of settings, we write this paper to explain those concerns," the report says.

An advance copy of the report, signed by eight scholars from various universities, lists what they see as problematic positions taken by Sunstein, including his support for a controversial statistical approach that agencies include a "life expectancy" calculation when considering the cost of proposed regulations. * * *

The 2003 controversy grew to the point that Sen. Richard J. Durbin (D-Ill.) proposed outlawing the approach.

"The EPA should be creating regulations to protect everybody," Durbin said then. "However, now we are in the cost-benefit era. . . . The EPA is discounting the lives of senior citizens. Their lives are as important to them and to our nation as anyone else's life."

Then-EPA Administrator Christie Todd Whitman announced that the agency would no longer use the calculation.

Left-leaning lawyers are also critical of Sunstein for an academic paper he wrote titled, "Is OSHA Unconstitutional?" [ILB - here is a copy]

He concluded that the Occupational Safety and Health Administration probably was constitutional but that its approach to regulation needed to be modified to consider cost-benefit analysis.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to General Law Related

Ind. Courts - Commission on Judicial Qualifications files charges against Judge Thomas Felts of Allen Circuit Court

From a release this afternoon by the Indiana Court:

The Indiana Commission on Judicial Qualifications filed charges against Judge Thomas Felts of Allen Circuit Court. Judge Felts is accused of violating the Code of Judicial Conduct during a July 2008 incident.

An investigation by the Commission shows that on July 18, 2008 Judge Felts was arrested in Marion County for Operating a Motor Vehicle with an alcohol content of at least .15, which is a misdemeanor. He was also arrested for public intoxication, also a misdemeanor. In August, Judge Felts plead guilty to the OWI charge and the state dropped the public intoxication charge. A judge sentenced Felts to one year in jail and suspended the sentence for the time served. Judge Felts was also ordered to serve one year probation, have his driver's license suspended for 90 days, and attend alcohol treatment.

The Commission has filed a “Notice of the Institution of Formal Proceedings and Statement of Charges” detailing the above events. The Commission has charged Judge Felts with two counts of judicial misconduct. Count One accuses Judge Felts of violating Canon 1A of the Judicial Code of Conduct which requires judges to uphold the integrity of the judiciary. Count Two accuses Judge Felts of violating Canon 2A, which requires judges to avoid impropriety at all times.

Judge Felts has the right to provide the Commission a written answer within 20 days. At that time, the Indiana Supreme Court will appoint three Masters to hold a hearing on the charges of misconduct. Supreme Court rules also allow for the Commission and the judge to reach a settlement agreement. Any settlement agreement or any decision reached by the Masters must be approved by the Indiana Supreme Court. The Indiana Supreme Court has final authority over all judicial discipline cases.

Here is a copy of the 4-page charging document.

For background, see this ILB entry from Aug. 21, 2008, and this list.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Indiana Courts

Ind. Decisions - 4th amendment decision appealed to SCOTUS

Petition for a writ of certiorari and motion for leave to proceed in forma pauperis was filed in the U.S. Supreme Court Jan. 12, 2009 and docketed (08-8163) Jan. 14th, in the case of Willie Eaton v. State of Indiana.

Attorney for Petitioner F. Thomas Schornhorst has provided the ILB with a copy of the petition. Schornhorst is a professor emeritus at IU Law-Bloomington.

Here are the Indiana Court of Appeals and Supreme Court opinions in the Eaton case. Per this June 30, 2008 ILB entry:

Rucker, J., dissents with separate opinion. [which concludes] Today’s ruling invites the Government’s search of a suspect’s business, home, garage, tool shed, workshop, or any other property a suspect may use simply because a law enforcement officer believes, without more, that evidence of crime can be found there. In my view this is an anathema to the mandate of the Fourth Amendment of the United States Constitution as well as Article I, Section 11 of the Indiana Constitution. There were no bases in this case, substantial or otherwise, for the magistrate to conclude that probable cause existed for the issuance of a search warrant. Eaton’s motion to suppress should have been granted. Therefore I agree with the result reached by the Court of Appeals and would reverse the judgment of the trial court.
Here is Professor Schornhorst's cert petition.

The ILB has also received this description / endorsement of the petition, via a public defender:

Are you sick of the boilerplate allegations of police knowledge - or training in support of search warrants for homes, cars, etc. that have no articulated factual basis for a NEXUS between some isolated deal and the home or car to be searched?

Are you sick of illegal GENERAL warrants that authorize seizure of "any and all property" or property "including but not limited to..."

Read Professor Schornhorsts' brilliantly researched cert petition in the Eaton case - where the Ind SCT reversed a grant of suppressioin by the IN CTAPP .

Useful arguments, clear exposition of the inferential leaps that are being made to uphold these nexus-less general warrants, and favorable cites from other jurisdictions, state and federal.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "As Mergers and Other Work Dry Up, Bankruptcy Becomes Lawyers’ Oasis"

Jonathan D. Glater of the NY Times reports today in a story that begins:

There sure do seem to be a lot of bankruptcy lawyers around these days.

Law firms, scrambling to keep up with changing client needs in a weakening economy, are rushing to pump up their bankruptcy departments by shifting around staff and having lawyers study up on restructuring, as more people abandon the big deals of boom times to take on desperate negotiations of companies on the brink.

At some firms, seasoned bankruptcy partners hold seminars and host brown bag lunches to introduce Chapter 11 proceedings to associates more accustomed to carefully planned mergers than to corporate fire sales. Some firms have poached bankruptcy experts from rivals in a bid to bolster business and to bring in a source of knowledge for lawyers new to dark times.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to General Law Related

Ind. Decisions - Transfer list for week ending Jan. 23, 2008

Here is the transfer list for the week ending Jan. 23, 2009. It is one page long.

No transfers were granted last week.

Nearly 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, January 26, 2009
Posted to Indiana Transfer Lists

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):

Brittany Glasco v. State of Indiana (NFP)

Brian McManus v. State of Indiana (NFP)

Robert Cowger v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - New chief judge of St. Joseph Superior Court interviewed

Pablo Ros of the South Bend Tribune reports:

Judge Michael P. Scopelitis of St. Joseph Superior Court has been selected as chief judge of the court for the next two years. He takes over from Judge John M. Marnocha. * * *

Q: Are there any challenges facing the court this year? * * *

A: First, security in this courthouse is an issue that we need to deal with. We had a study done by the U.S. marshals a few years ago, and they pointed out a

few things that need to be addressed in terms of security.

For example, you just walked in and came into my office, and if you had a bone to pick with me you could have kept right on going. And some people have. Some people walk in, and they come in unannounced. Some of them are upset. And you don't need a gun or a knife to do harm, you could pick up a chair and do a lot of harm to a staff member or a judge.

The second thing is I want to work with Judge (Michael) Gotsch and the commissioners and the County Council to figure out a way we can finish the renovation of the old jail and the jail addition.

We need the space desperately. It takes money, and money is scarce, but that is a priority.

The third thing is computerization of all the courtrooms. (A state program) gave us more than a dozen computers and monitors recently, and I just received a message that they're going to provide us with another nine or 10 computers at no charge to the county.

What else is on the plate? The election of judges bill. I'm going to do everything that I can to see to it that that bill is defeated. It is not good for the public.

I want to do whatever I can as one person and one voice to see to it that every trial judge in this state is merit selected.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Indiana Courts

Ind. Law - "Lawmakers renew effort against illegal immigrant workers"

Updating this ILB entry from Jan. 25th, Eric Bradner of the Evansville Courier & Press reports today:

As unemployment in Indiana has climbed past 7 percent, state lawmakers have renewed last year's failed efforts to crack down on businesses that knowingly hire illegal immigrants.

If a company is cited three times for employing illegal immigrants, it could lose its business license to operate in Indiana, under three similar bills introduced this year.

Supporters of the legislation say those penalties would keep businesses from employing illegal immigrants at below-market wages, and would dry up opportunities for illegal immigrants.

"You've got to take the economic incentive of hiring illegal immigrants off the table in order to deal with the issue," said Sen. Mike Delph, R-Carmel, a key backer of the three strikes legislation.

The three bills would require businesses to use a federal system called E-Verify to check the legal status of potential employees. Any company that does use the free electronic system would be immune from prosecution because that counts as a good-faith effort to hire legal workers, Delph said.

The bills contain escalating penalties for hiring illegal workers, beginning with an administrative slap on the wrist for the first violation.

"It's not designed to punish law-abiding citizens or law-abiding businesses. You have to be a really bad actor and very stupid ... to be punished by this bill," Delph said. "How many times does a business need to be corrected before they get it?"

Similar legislation won approval of both chambers of the Legislature last year, but the bill died because the differences between the House and Senate versions couldn't be resolved in the waning moments of the session.

Business groups, including the state Chamber of Commerce, opposed the bill last year because of its penalty provisions on companies that are violators. * * *

The route a three strikes bill would take through the Legislature is unclear. Delph has authored one version, Senate Bill 580. Sen. Dennis Kruse, R-Auburn, has written another. And Rep. Vern Tincher, D-Riley, introduced the third bill.

All three achieve similar objectives, and Delph said he will take a back seat to Kruse this year.

Rep. Trent Van Haaften, D-Mount Vernon, is chairman of the House Public Policy Committee, which a three strikes bill might have to pass through.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Indiana Law

Ind. Law - This week at the General Assembly - Week 3

A few quotes from Bryan Corbin's weekly "Legislative Notebook" report today in the Evansville Courier & Press:

Having dessert first, followed soon by the meat and potatoes, sums up the current stage of the Indiana General Assembly.

Last week was light on legislative action at the Statehouse because of a government holiday Monday and many lawmakers being in the nation's capital Tuesday for the presidential inauguration.

The week's most memorable proposal, passed Thursday, was a nonbinding Senate resolution that designates sugar cream pie as "Hoosier Pie."

Much more serious, substantive work is ahead for lawmakers during the fourth week of the 2009 session.

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Jan.. 29th:

9:00 AM - Christopher Bailey v. State of Indiana - Following a bench trial, the Marion Superior Court found Bailey guilty of battery and disorderly conduct for an incident with two school administrators at Perry Meridian High School, where Bailey was a student. The Court of Appeals reversed for insufficient evidence in Bailey v. State, 893 N.E.2d 749 (Ind. Ct. App., Sept. 19, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Bailey: Anna E. Onatis, Indianapolis, IN. Attorney for State: Nicole M. Schuster, Indianapolis, IN. [See ILB COA opinion summary here, 3rd case.]

9:45 AM - Bryan G. Mosley v. State of Indiana - Following a bench trial, the Marion Superior Court found Mosley guilty of resisting law enforcement, a Class A misdemeanor. Affirming the conviction in an unpublished memorandum decision, the Court of Appeals opined that when there are no meritorious arguments to be made, the better approach is to file a brief as described in Packer v. State, 777 N.E.2d 733 (Ind. Ct. App. 2002). See Mosley v. State, No. 49A02-0802-CR-188, slip op. (Ind. Ct. App., Sept. 19, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

10:30 AM - Susana Henri v. Stephen Curto - Henri sued Curto, alleging that their sexual encounter was non-consensual. Curto counterclaimed for tortious interference with his academic contract, alleging that his suspension from Butler University resulted from Henri's statements to Butler. Following a jury trial, a verdict was rendered in favor of Curto on both Henri's complaint and Curto's counterclaim. The Court of Appeals reversed and remanded, holding that certain irregularities during jury deliberations warranted a new trial. Henri v. Curto, 891 N.E.2d 135 (Ind. Ct. App., July 31, 2008), vacated. The Supreme Court has granted a petition to transferthe case and has assumed jurisdiction over the appeal. [See ILB COA opinion summary here, 2nd case.]

Webcasts will be available here.


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

None apparently scheduled.

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

This Tuesday, Jan.. 27th:

10:00 AM - Michael W. George vs. State of Indiana - Police stopped driver Michael George for speeding and discovered his driver's license was suspended. George's car was impounded and an inventory search was conducted which yielded evidence of morphine pills in the car. George appeals his conviction of possession of a controlled substance, a Class D felony, contending that the inventory search of his car was unconstitutional and therefore, the trial court erred in admitting evidence of the pills and their chemical identity. The Scheduled Panel Members are: Chief Judge Baker, Judges Robb and Bradford. The Scheduled Panel Members are; Judges Robb, Crone and Brown. [Where: West Lafayette High School, 1105 N. Grant Street, West Lafayette, Indiana 47906-2400]0

10:00 AM - Frank J. Vance vs. David L. & Marilyn Stainbrook, and Hilbert & Barbara Just - Appellee's David L. Stainbrook, Marilyn Stainbrook, Hilbert Just, and Barbara Just, by counsel, have filed a Verified Motion to Dismiss Appeal. The Court, having reviewed Appellee's Verified Motion, has concluded that Oral Argument will assist this court in determining whether to grant or to deny it. The Scheduled Panel Members are: Judge Kirsch, Senior Judges Sullivan and Sharpnack. [Where: Indiana Court of Appeals Courtroom]

This Wednesday, Jan.. 30th:

10:00 AM - A. B. vs. State of Indiana - Appellant-Defendant A.B. appeals the trial court's finding that there was sufficient evidence upon which to conclude that he committed a delinquent act, specifically, Auto Theft, a Class D felony, which would be a crime if committed by an adult. Specifically, A.B. contends that the trial court's determination that his mere presence in the driver's seat of a stolen car was sufficient to establish that he exerted unauthorized control beyond a reasonable doubt is not supported by the circumstances of this case. A.B. challenges the trial court's determination by claiming that, at most, the evidence presented supported a suspicion that he might have been involved in the theft of the car, and such a suspicion is not enough to establish his guilt beyond a reasonable doubt. The Scheduled Panel Members are: Judges May, Crone and Bradford. [Where: Heritage Christian High School, 6401 E. 75th Street, Indianapolis, Indiana 46250]
_____________

* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to Upcoming Oral Arguments

Law - "Recession Batters Law Firms, Triggering Layoffs, Closings"

This is the headline to this lengthy story today in the WSJ, reported by Nathan Koppel. Some quotes:

After upending a succession of U.S. industries, the recession has arrived for U.S. law firms, which have long seen themselves as partially insulated from economic downturns. In December, Thelen LLP, another large San Francisco firm, also shut down for good, citing recessionary pressures. Later that month, Thacher Proffitt & Wood LLP, a 160-year-old New York firm, announced that it was closing. Dreier LLP of New York is dissolving after its founder was arrested for fraud.

Pay cuts and layoffs are becoming commonplace. This month, Clifford Chance laid off more than 70 lawyers in London; Cooley Godward Kronish LLP fired 50 lawyers and 60 other staffers; and Akin Gump Strauss Hauer & Feld LLP let go of 65 staff members across the U.S.

In November, New York legal giant Cravath, Swaine & Moore LLP announced it was reducing year-end bonuses for junior lawyers, and that it wouldn't raise its billing rates in 2009. Latham LLP, one of the nation's highest-grossing firms, said in December that associates would not get raises in 2009 -- a move followed by many other firms.

"More firms are in a fragile condition than I've ever seen," says William Brennan, a law-firm consultant with Altman Weil Inc. and formerly chief financial officer at two large Philadelphia firms.

Profits, on average, were down 8% to 12% across the industry last year, after 15 years of consistent profit growth, says Peter Haugh, managing director for the Legal Specialty Group of Wachovia Wealth Management.

Throughout the industry, business has dropped off in such key practice areas as mergers, public offerings, and corporate finance. Litigation, often counted on to carry firms through downturns, has become less profitable as clients increasingly settle big cases, forgo lawsuits altogether, or pressure firms to discount their fees, lawyers say. Some practice areas, such as bankruptcy, however, are robust.

The story makes this point:
Their main assets are their senior lawyers. Job hopping used to be relatively rare among such lawyers. But lawyers with big books of business now commonly shop themselves to more profitable firms that can offer larger compensation packages.

"Law firms are not the kind of companies that do well in adversity," says Jonathan Landers, a partner at Milberg LLP, who has represented banks in law-firm dissolutions. "Their best assets are their most mobile assets. When bad things happen, people get nervous and they start to look around."

The economic downturn has prompted lawyers to jump to firms perceived to be more financially stable. If enough partners head for the exit, a firm can crater in a hurry.

"The marketplace is so intensively competitive that when firms encounter financial difficulty, the best and brightest lawyers immediately say, 'I don't want to take a risk with my clients and my compensation,' and they jump quickly to a less risky platform," says Mr. Brennan, the consultant. "Within weeks a firm can go from having financial difficulty to having a run on the bank."

Posted by Marcia Oddi on Monday, January 26, 2009
Posted to General Law Related

Sunday, January 25, 2009

Law - "Bush's legal foes now Obama's legal team"

IU-Bloomington Law Prof Dawn Johnsen, selected to head President Obama's Office of Legal Counsel (see ILB entries here), is featured in a story today by Ben Smith of Politico. It begins:

President Barack Obama is staffing his Justice Department with some of his predecessor's fiercest critics, and lawyers who have spent years defining the limits of executive power will now be helping to wield it.

The change may be most dramatic at the Justice Department’s Office of Legal Counsel — which defended some of Bush’s most controversial policies — where a small cadre of lawyers who had an outsized influence on legal criticism of Bush are taking the top three jobs.

Those three — Dawn Johnsen, Martin Lederman, and David Barron — and others made the case that Bush’s interrogation policy was justified by flawed legal reasoning. Their arguments precipitated one of Obama’s most dramatic early acts: flatly repudiating all government legal advice on interrogation issued between September 11, 2001, and January 20, 2009.

Posted by Marcia Oddi on Sunday, January 25, 2009
Posted to General Law Related

Ind. Law - "Wrong time, wrong focus: Immigration bill flawed"

The Indianapolis Star's lead editorial today masses the arguments against Sen. Mike Delph's illegal immigration bill, SB 580, concluding "good intentions aren't enough to salvage a bad bill."

Here is a long list of earlier ILB entries relating to immigration.

Posted by Marcia Oddi on Sunday, January 25, 2009
Posted to Indiana Law

Environment - "IDEM accuses a second ECI bioenergy firm of environmental violations"

Seth Slabaugh of the Muncie Star-Press reports today on two enforcement actions brought against Indiana bio-energy producers. The first:

Last year, soy biodiesel producer E-Biofuels, Middletown, agreed to pay IDEM an $18,000 civil penalty for two discharges into sanitary sewers that interfered with the operation of the town's wastewater treatment plant.

According to IDEM, the discharges fell into the category of fat, oil or grease. Glycerin, a byproduct of biodiesel facilities, is classified by law as a fat, oil or grease pollutant.

Access the Agreed Order, signed Oct. 6, 2008, here.

The second, from the story:

MARION -- A second East Central Indiana bio-energy producer has been accused by the state of violating environmental laws and its permit.

Central Indiana Ethanol, Marion, was surprised to receive a notice of violation from the Indiana Department of Environmental Management dated Sept. 29.

"We did the right thing when we told the state that these things occurred," said Norm Currey, environmental, health and safety officer at the plant. "We didn't think it was major, but they felt different and sent it to enforcement. We felt it was minor." * * *

The company is planning to settle the notice of violation through an agreed order.

"The case is still ongoing," said IDEM spokesman Rob Elstro. "We are continuing to discuss options with the source."

Here is the Notice of Violation, issued Sept. 29, 2008.

Posted by Marcia Oddi on Sunday, January 25, 2009
Posted to Environment

Law - "Public office ban proposed for city workers"

Brendan O'Shaughnessy of the Indianapolis Star reports today on House Bill 1373. Some quotes:

Hoping to eliminate potential conflicts of interest, a lawmaker is pushing a bill this year that would bar local government workers from running for elected office where they can vote on their own pay and other matters that benefit them.

"The cost in public confidence is too great to have this continue," said first-year state Rep. Ed Delaney, an Indianapolis Democrat who authored the proposal. "I think we will get better candidates if people don't think government is an insider's club."

A review by The Indianapolis Star in December found numerous examples across the state of police officers, firefighters and others who had won office and then voted to bump up their salaries -- often as part of across-the-board salary increases for government employees -- or benefited in some other way at taxpayer expense.

A police officer, a firefighter, an employee in the county assessor's office and a city human resources worker currently hold seats on the Indianapolis City-County Council.

Gov. Mitch Daniels has asked lawmakers to take action on the issue this year. Letting local government employees become, essentially, their own boss is a "very bad idea," the governor said last month.

Delaney said he repeatedly heard complaints from voters while he was campaigning that they had grown tired of a system rife with potential conflicts of interest.

Today's Star story includes a link to a Dec. 28, 2008 story by Mary Beth Schneider headed "In Indiana, city workers can OK their own raises."

BTW, although identified simply as "first-year state Rep. Ed Delaney" in the story, the new guy is not lacking in real-world experience.

Posted by Marcia Oddi on Sunday, January 25, 2009
Posted to Indiana Law

Ind. Courts - Documents show church knew of abuse, Indianapolis Star reports

The name "Harry Monroe" has appeared in a number of earlier ILB entries, including most recently this one from April 11, 2008, where a story from the Terre Haute Trib-Star reported:

An Indiana appeals court has given a green light to a civil lawsuit that alleges a former Catholic priest sexually abused a boy and the Archdiocese of Indianapolis covered up the priest’s prior history of sexual abuse.

In a two-page order issued Monday, the Indiana Court of Appeals declined to hear an appeal by lawyers for the Indianapolis Archdiocese.

It gave no reason for the decision.

The defendant in the case is Harry E. Monroe, a former Catholic priest accused of molesting numerous boys between 1974 and 1984 at churches in Indianapolis, Terre Haute and Perry County in southern Indiana. * * *

Archdiocese attorneys claim that the alleged victim of Monroe waited too long to take legal action and that his case should be tossed out.

Today Robert King has a lengthy, front-page story in the Indianapolis Star headed "Documents: Church knew of abuse; Allegations were never reported, records show." The story is accompanied by five documents. Some quotes from the story:
The Archdiocese of Indianapolis has admitted that one of its former priests, Harry Monroe, was a child molester.

But church officials have never acknowledged they knew anything about the abuse while it was happening.

Now, a host of new documents obtained through a court petition by The Indianapolis Star reveal that church officials knew about allegations against Monroe by 1976 -- early in an era of sex abuse that lasted from 1974 to 1984.

The documents also make it clear that two former Indianapolis archbishops -- the Most Rev. George J. Biskup and the Most Rev. Edward T. O'Meara -- were aware of abuse allegations at the time, never reported them to police and continued to assign Monroe to new parish positions, where he preyed on other children.

The newly revealed records -- coupled with others already public -- show a church hierarchy that twice sought medical evaluations and care for Monroe through a clinic that treated abusive priests from across the country. * * *

The Archdiocese of Indianapolis has denied any legal liability in the 13 lawsuits it now faces about Monroe. It says the deaths of key figures in the case -- both archbishops and Brokhage -- make it hard to see the context in paperwork.

Mercer, the archdiocesan attorney, said the records show church officials twice sought treatment for Monroe with the House of Affirmation, which they thought was a "state-of-the-art" facility at the time. Twice, he said, they put Monroe back into ministry after receiving assurances that he was not a threat to children.

Both times, however, that proved to be wrong. More abuse cases followed.

Mercer said it is unfair, on another level, to view people's actions -- or lack of action -- in the 1970s and early 1980s through the prism of today's attitudes about what should constitute a red flag that abuse is occurring. * * *

Even before Monroe returned from California in June 1982, O'Meara gave him his final assignment: as a co-pastor at three parishes in Perry County. Two years later, O'Meara would finally give up on Monroe. Allegations of abuse during this period would arise later.

But neither O'Meara nor any other officials in the Archdiocese of Indianapolis would ever go to police. The criminal statute of limitations expired before the victims came forward as adults. And Monroe was never prosecuted.

Posted by Marcia Oddi on Sunday, January 25, 2009
Posted to Indiana Courts

Saturday, January 24, 2009

Ind. Decisions - "Cell-hopping for sex not an escape, judge rules"

Laura Lane of the Bloomington Herald-Times writes today:

BLOOMFIELD — They may have crawled through the jail ceiling, consumed jail-brewed alcohol and engaged in jailhouse sex, but the six Greene County inmates investigators charged with felony escape in connection with the incidents never left the jail.

So the escape charges against them filed in November are being dismissed.

Greene Superior Court Judge Dena Martin ruled in the case against 17-year-old Alexander Rathburn that in order to be guilty of escape, a person must “flee from lawful detention.” James Riester, the lawyer representing Rathburn, argued that since his client never left the jail, he was detained at all times and could not be accused or found guilty of escaping.

An inmate not involved in the sneaking around at night told the sheriff the women appeared in the men’s cell block at least 15 times during September and October.

Greene County Prosecutor Jarrod Holtsclaw said he disagrees with the judge’s ruling, but respects her decision. He has contacted the attorney general’s office to inquire about the process for appealing the judge’s decision.

Holtsclaw said he and investigators in the case realized the escape charge might not stand. In his mind, though, both male and female prisoners escaped from the cell block where they had been confined and did so by going through the unsecured attic. He also said that men and women ended up in the same cells, a violation of law.

“There was nothing else to charge them with in this instance, so it was either file the escape charge or they would get away scot-free,” Holtsclaw said. “So we filed it and decided to proceed, knowing this issue probably would come up.”

He wants the Legislature to address what he sees as a hole in the law. “You can define ‘detention’ as being within the four walls of the facility or the specific place where the sheriff has secured you,” the prosecutor said. “This needs to be clarified. There’s been no case before to test this law.” * * *

A court document detailing how the inmates traveled though the ceiling indicated that the women used a metal shower drain cover to pry ceiling tiles loose. They then would place a plastic laundry hamper on one of the bunks and hoist themselves into the ceiling, then drop down into the men’s cell. The men apparently visited the women, too, reversing the route.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Ind. Trial Ct. Decisions

Environment - "Some worried over Southern Indiana wood-burning power plant"

From an AP story in the Evansville Courier & Press:

MILLTOWN, Ind. — A plan to build a $90 million wood-burning power plant is drawing questions from some living near the site in southern Indiana’s Crawford County.

Developers are proposing a plant that could each year burn 250,000 tons of wood left over from logging, sawmill operations, furniture manufacturing and land clearing, but some residents say they are concerned about potential pollution.

Members of the newly formed Concerned Citizens of Crawford County plan on attend a county commissioners meeting on Thursday, when developers Larry Ott of Lanesville and Terry Naulty of Elizabeth are expected to discuss the project. * * *

County commissioners president Larry Bye said he was not sure the board would have any say over construction of the plant because the county doesn’t have zoning ordinances

Liberty Green executives have said they expected to request a 10-year property-tax abatement, which would need approval from the County Council.

Bye said the plant could mean an estimated $2 million a year in property-tax revenue once an abatement period was finished.

“Anytime you’ve got a chance for something to generate that kind of tax revenue, as a commissioner you’ve got to take a good look at it,” he said.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Environment

Ind. Courts - "IHSAA appealing Jasmine Watson ruling"

Jeff Parrott reports today in the South Bend Tribune:

The Indiana High School Athletic Association served notice Friday of its plans to appeal a Dec. 19 St. Joseph Circuit Court ruling allowing senior Jasmine Watson to play for the team.

Jasmine, a 6-foot-3-inch center who has verbally committed to play next year for the University of Massachusetts, transferred from Elkhart Memorial at the start of the school year. Elkhart Memorial refused to sign off on her eligibility, saying it believed she transferred to Washington for primarily athletic reasons, a violation of IHSAA rules.

When the IHSAA agreed, Jasmine sought a preliminary injunction against the ruling in St. Joseph Circuit Court. Her mother, Valerie, who had her hours cut at an Elkhart factory and lost her home to foreclosure, argued that the family moved to South Bend for economic reasons and to be closer to their extended family on the city's west side.

Elkhart Memorial and the IHSAA also alleged Washington Coach Maurice "Mo" Scott exerted "undue influence" by recruiting Jasmine.

But Senior Judge David Matsey ruled in her favor,allowing Jasmine to finally suit up after being allowed only to practice with the team through its first eight games. The team has won all 20 of its contests, most by lopsided margins. * * *

If the IHSAA prevails, Washington would have won with an ineligible player and the association could enforce its "restitution rule," wiping out the victories and any tournament titles. * * *

The Indiana Supreme Court in 1997 upheld the constitutionality of the restitution rule, in a case involving a Lafayette Jefferson High School baseball player.

"Undeniably," the court wrote, "the Restitution Rule imposes hardship on a school that, in compliance with an order of a court which is later vacated, fields an ineligible player. On the other hand, use of an ineligible player imposes a hardship on other teams that must compete against the teams fielding ineligible players."

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "South Bend can try to recoup clean-up costs"

Cooper Industries, LLC v. City of South Bend, handed down Jan. 22nd by our Supreme Court (see ILB entry here), is the subject of a story today in the South Bend Tribune by Jamie Loo. Some quotes:

The city can pursue environmental legal action against a company that occupied land formerly owned by the Studebaker Corp., under a ruling by the Indiana Supreme Court.

The city filed a lawsuit against Cooper Industries, LLC, in 2003 alleging the company is the corporate successor of the Studebaker Corp. and therefore owes environmental damages to the city for cleanup. The city has spent millions cleaning up environmental damage on the 104-acre site south of downtown where the Studebaker Corp. once manufactured cars.

Cooper Industries argued that the city wasn't within the statute of limitations for pursuing legal action. The company also claimed that when it acquired Studebaker's assets, combined with the Worthington Corp. in 1967, the liabilities did not transfer. The liabilities would've remained with the Studebaker Corp. until it ceased to exist and then expired, attorneys argued. * * *

The court found that there was a continuity of shareholders between Studebaker and Studebaker-Worthington after the sale was completed. Studebaker also "remained legally and financially available to satisfy its remaining liabilities for three years after its dissolution." The McGraw-Edison Co. acquired all of Studebaker-Worthington's shares. That company merged with Cooper Industries in 2004.

In its ruling, the court found that the statute of limitations has run out on the city's tort claims, but that the city can continue its suit under the Indiana Environmental Legal Action Law, which took effect in 1998.

"I think it's a great decision for the city of South Bend," said city attorney Chuck Leone. "It allows us to recoup some of the cost for cleanup for damages that goes back decades."

Leone said the case will now go to an environmental court in Indianapolis. The city has been pursuing environmental damages through other ways, he said, and that a favorable outcome in the Cooper case will help the city.

The city received a settlement for environmental damages from Allied Products Corp. in 2005, which occupied some of the former Oliver Plow Works properties and a nearby stamping plant on South Franklin Street.

See this list of other ILB entries re Studebaker.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "Doing the Right Thing by Paying the Nanny Tax "

That is the heading to this useful article today by Ron Lieber of the NY Times, providing a step-by-step description of what you have to do to comply with the requirements imposed on household employers by federal and state law.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to General Law Related

Ind. Decisions - "Appeals court trims homicide sentence"

Friday's COA decision in the case of Keith W. Winchester v. State of Indiana (NFP) is the subject of a story today by Sophia Voravong in the Lafayette Journal Courier. A quote:

In his appeal, Winchester argued that a Clinton Circuit Court judge improperly considered East's family's sentencing recommendation and his criminal history of physical violence -- in which the victims did not press charges but recovered damages through civil actions -- as aggravators.

Indiana's higher court agreed, ordering that Winchester's sentence be reduced to an advisory sentence of four years in prison and two years on probation.

"While we understand that East's family feels a terrible loss, we note that such an impact on family members accompanies almost every tragic death ... ," Senior Judge Betty Barteau wrote in the unanimous ruling issued Friday.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judicial Center's Legislative Update #2

Here is the Indiana Judicial Center's Legislative Update, current through Jan. 23rd -- a good way to keep on top of court bills, and bills impacting criminal and civil matters.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Indiana Courts

Ind. Law - Four minute video on Indiana's "Sherman Minton: New Deal Senator, Cold War Justice"

New Albany native:

James St. Clair wrote Sherman Minton: New Deal Senator, Cold War Justice about the life of Sherman Minton. Sherman Minton was a U.S. Senator from Indiana from 1934-1940 and was an Associate Justice on the Supreme Court from 1949-1956. He was on the court when it ruled unanimously in Brown v. Board of Education.
Watch the 4-minute interview with the author here, via C-SPAN.

Posted by Marcia Oddi on Saturday, January 24, 2009
Posted to Indiana Law

Friday, January 23, 2009

Courts - "Jenner & Block Associate Argues Her First Case - In the Supreme Court"

This is a fun read for a Friday afternoon, from David Lat of Above the Law.

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Courts in general

Environment - "Memo details TVA editing of response to ash spill"

This story by AP reporter Duncan Mansfield, appearing today in the Lexington Herald-Leader, begins:

KNOXVILLE, Tenn. -- The massive coal ash spill at a Tennessee Valley Authority power plant last month wasn't so much "catastrophic" as it was a "sudden, accidental release."

That's according to a memo obtained by The Associated Press that was prepared by TVA's 50-member public relations staff for briefing news media the day after the disaster at the Kingston Fossil Plant, about 40 miles west of Knoxville.

The nation's largest public utility has been accused by environmentalists and affected residents of soft-pedaling the seriousness of the flood of toxin-laden ash that filled inlets of the Emory River and swept away or damaged lakeside homes.

Steve Smith, director of the environmental group Southern Alliance for Clean Energy, told a U.S. Senate committee that TVA downplayed the potential toxicity of the ash and the extent of the damage immediately afterward and for several days more.

"Oh, absolutely. They came out and said everything is safe, right?" said Bruce Nilles, a Madison, Wis.-based attorney for the Sierra Club.

The Dec. 23 document, inadvertently sent to the AP and once labeled "risk assessment talking points," was crafted as TVA scrambled to contain a spill that caused no serious injuries but displaced several people and continues to pose an environmental threat.

"That was very early on," TVA spokesman John Moulton said about the memo, in which "catastrophic" was replaced with "sudden, accidental" to describe the "release of this large amount of material."

"We were putting in the word that we thought ... best described it at that time," he said. "Now, we certainly realize it is a very serious event and we realized then it was a very serious event. There was no attempt to downplay it." [ILB - emphasis added.]

ILB: - It is not pointed out in the story, but environmental and insurance attorneys will recognize that "sudden and accidental" are words of art (i.e. the sudden and accidental exception to the standard pollution exclusion) determining coverage for environmental claims in many comprehensive general liability policies.

See other ILB coal ash entries here.

See also this editorial today in the NYT, headed "Collapse of the Clean Coal Myth."

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

David R. Gaskell v. Jane M. Gaskell is an 18-page, 2-1 opinion authored by Judge Crone, affirming the trial court. The issues:

David R. Gaskell (“Husband”) appeals the trial court‟s division of property upon the dissolution of his marriage to Jane M. Gaskell (“Wife”). Wife cross-appeals. We affirm.

Husband raises five issues, which we consolidate and restate as follows: I. Did the trial court err by enforcing the terms of a post-nuptial document signed by Husband? II. Did the trial court err by awarding the LaGrange Street property to Wife? III. Did the trial court err by failing to include in the marital estate the sum of $85,000 retained by Wife from the sale proceeds of Husband and Wife‟s prior residence? IV. Did the trial court err by ordering an unequal division of the marital estate?

In her cross-appeal, Wife raises one issue, which we restate as whether the trial court erred by including social security payments received by Wife as an offset against Husband‟s delinquent maintenance obligation. * * *

[Judge Brown's dissent begins on p. 14.]

In Otho L. Lafayette v. State of Indiana , a 23-page decision with 3 separate opinions, Judge Crone writes:
Otho L. Lafayette appeals his convictions for class A felony rape, class B felony criminal confinement, and class C felony intimidation, as well as his repeat sexual offender status. Lafayette contends that the trial court committed reversible error in admitting the testimony of a woman he attempted to rape in 1997. We agree and therefore reverse Lafayette‟s convictions and remand for a new trial. * * *

KIRSCH, J., concurs in result with separate opinion. [which reads] I concur in the decision to reverse Lafayette‟s convictions, but I reach that conclusion by a different route than that set forth in Judge Crone‟s lead opinion. I disagree with the conclusion that a criminal defendant does not put his intent at issue by asserting that an alleged rape victim consented to the sexual intercourse, but I do not believe that Lafayette made any such assertion at trial and, accordingly, did not put his intent in issue. In challenging the credibility of the prosecuting witness on her claim that the sexual intercourse was forced, Lafayette made no affirmative claim that the sexual intercourse was consensual. Had he done so, I believe it would have opened the door to the challenged testimony of the prior bad acts.

VAIDIK, J., dissents with separate opinion. [which begins, on p. 16] I respectfully dissent. First, I disagree with the lead and concurring in result opinions because I believe that the trial court correctly concluded that Otho Lafayette put his intent at issue during trial. Second, I believe that the evidence of Lafayette‟s previous attempted rape was relevant. Therefore, I would hold that the trial court properly admitted testimony regarding Lafayette‟s prior bad act, address Lafayette‟s remaining claim of error, and affirm Lafayette‟s convictions.

In Robert Buchanan v. State of Indiana , a 19-page, 2-1 opinion, Judge Crone writes:
Following a bench trial, Robert Buchanan appeals his convictions for class B felony robbery, three counts of class B felony criminal confinement, three counts of class C felony intimidation, two counts of class D felony false reporting, and class D felony theft. Buchanan also challenges the appropriateness of his twenty-year sentence. We affirm his robbery conviction and sentence and vacate the remaining convictions on double jeopardy grounds. * * *

Next, Buchanan claims that his numerous convictions violate double jeopardy principles. He first contends, and the State properly concedes in its appellee‟s brief, that his theft conviction must be vacated because theft is a lesser included offense of robbery. * * * Buchanan also contends, and the State conceded at the sentencing hearing, that his false reporting and intimidation convictions must be vacated. * * * Finally, Buchanan contends that his criminal confinement convictions must be vacated on double jeopardy grounds. * * * [W]e vacate Buchanan‟s criminal confinement convictions. Consequently, only Buchanan‟s robbery conviction remains. * * *

Affirmed in part and vacated in part.

ROBB, J., concurred.
BROWN, J., concurred in part, dissented in part with opinion. [which begins] I concur with most of the majority's analysis but respectfully dissent as to the majority‟s conclusions that Buchanan was not in custody prior to his confession to the robbery during the second interview with the police, and that Buchanan‟s false reporting convictions should be vacated.

NFP civil opinions today (2):

Dueco, Inc. v. Terex-Telelect, Inc. (NFP) - "As a matter of Wisconsin law, the Agreement did not provide Dueco with indemnity for its own negligence. The trial court’s grant of summary judgment in favor of Terex on the issue is correct. We affirm. "

Cheri Okuly v. Michael Abbott (NFP) - "Michael’s past overtime would not accurately reflect his future overtime earnings. The trial court did not err by not including Michael’s overtime in the calculation of the child support obligation. "

NFP criminal opinions today (7):

Warren Parks v. State of Indiana (NFP)

Gary Becker v. State of Indiana (NFP)

Neil McAdams v. State of Indiana (NFP)

Elijah Henry Armes, II v. State of Indiana (NFP)

Keith W. Winchester v. State of Indiana (NFP)

John Patrick v. State of Indiana (NFP)

Adham A. El-Khatib v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Methamphetamine cases may be in jeopardy"

A very interesting story today by Keith Rhoades in the Martinsville Reporter-Times. The situation:

In February 2008, Indiana State Police investigators suspected that drugs were being sold from a home at 6385 Big Hurricane Hill Road. Because of the home’s location, ISP said they couldn’t conduct surveillance without being discovered. As a part of its investigation, the ISP requested that a phone tap be authorized by the court. The tap was approved by Morgan County Superior Court III Judge Jane Craney. Information from the tap and other sources led to the arrests of 10 people.
The story:
The arrests of 10 people on drug charges may be in jeopardy after one of their defense lawyers challenged the court’s procedure in obtaining a wiretap that led to the arrests.

Indiana State Police used a wire tap law that was enacted in 2007 to gather evidence leading to the arrests of 10 people, including Ted Thompson, 38, Indianapolis, who is charged with seven counts of dealing in cocaine or a narcotic drug. The February 2008 investigation was the first time that this law was used to procure a wire tap.

The status of the case may come down to the Indiana State Supreme Court deciding if a rule it enacted in 1991 under the old wire tap law, is still valid under the new law. The new law does not include the provision from 1991, but Thompson’s attorney, Jeffrey Baldwin, argues that it must still be followed because it wasn’t stricken from the record. Until the matter is decided, the seven remaining cases are on hold and two cases that have already ended with guilty pleas may have to be reopened.

Trial Rule 25 states, in part, that before a warrant, issued by a sitting judge, for a wire tap can be done, the warrant must be sent to the Indiana Court of Appeals for review. The court will review the evidence that led to the warrant being issued and decide if the phone tap can proceed.

During a hearing Thursday morning in Morgan County Superior Court III, deputy prosecutor Louis Ransdell argued the rule was put in effect in 1991 because the old law, which had been used three times in 17 years, did not have the safeguards to protect the public’s right to privacy.

Ransdell was presenting the state’s side in the case against Thompson. According to the Indiana State Police, the agency which conducted the investigation, Thompson was a major distributor of methamphetamine. He along with nine others were charged with A and B felony drug dealing charges in February, 2008.

According to Ransdell, the trial rule provided a way to protect the public against unwarranted wire tapping. Ransdell said the new law, enacted in 2007 by the state’s legislature and containing the safeguards, made the trial rule unnecessary.

Ransdell told Judge Jane Craney that when the warrant was requested in March, the prosecutor’s office did not know about the rule. He said the solution, if need be, is to have the same evidence that Judge Craney used to authorize the wire tap sent to the appeals court and have a judge determine if the wire tap was legal.

Judge Craney agreed that when researching the new law that authorizes wire tapping, the trial rule was never discovered. The judge said that since Morgan County was the first to use the new law, there was a lot of work done by the state to make sure the law was followed.

Thompson’s attorney Baldwin, argued that because the rule was not followed, the evidence generated from the wire tap must be suppressed and not allowed into court. Baldwin said that while there is no state case law on the matter because it is a new law, there is federal case law. That law, he said, requires the evidence be suppressed. The state did not follow Trial Rule 25 so it violated the law, he said.

Baldwin also took issue with what he called problems with the state’s handling of some evidence. As examples, he cited five alleged purchases of meth that were made by a confidential informant used by the state police. Only four show up on the list as being processed by the ISP laboratory.

“Where is the two ounces of meth?” he asked. Baldwin said a weapon seized by the ISP was also not listed. Baldwin also said he was unhappy with what he called “misstatements” in the probable cause affidavit by the ISP about his client’s criminal past.

Ransdell said those items were listed in the probable cause affidavit and there was no problem with them.

Thompson’s trial was scheduled to begin Feb. 2. That date has been cancelled and his trial date has not yet been rescheduled.

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending Jan. 16, 2008

Here is the transfer list for the week ending Jan. 16, 2008. It is three pages long. (Apparently the copy timely sent to the ILB on Jan. 20 is still floating around in cyberspace, but the Clerk's Office has just now kindly sent the ILB another copy.)

One transfer was granted last week, in the case of Lawrence Gunkel and Judy Lynn Gunkel v. Renovations, Inc. by Wagler and Menno D. Wagler, et al. See ILB entry here.

Also notable on the list is the transfer denial of the Smith & Wesson v. City of Gary petition. For details, see this Jan. 12 ILB entry.

Nearly 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 Friday, January 23, 2009
Posted to Indiana Transfer Lists

Law - More on: Promising start for Obama re public records, transparency and open government

Updating this ILB entry from Jan. 21, the documents are now available on WhiteHouse.gov.

Presidential Memorandum on Transparency and Open Government

Presidential Memorandum on the Freedom of Information Act

Executive Order on Presidential Records

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to General Law Related

Ind. Courts - New probate case number classification added 1/1/09

Rule 8 of the Administrative Rules lists all of abbreviations which are available for court cases. In the probate area:

ES – Estate, Supervised

EU – Estate, Unsupervised

EM – Estate, Miscellaneous

GU – Guardianship

TR – Trust

The EM classification is new, as of Jan. 1, 2009. Jeff R. Hawkins, HAWKINS LAW PC, Estate, Trust & Business Attorneys, Sullivan, Indiana, writes:
Rule 8 of the Indiana Administrative Rules added the EM case number classification on January 1. It was intended to provide a classification for proceedings concerning decedents that do not require the appointment of a personal representative. It may be desirable to introduce the EM classification to probate judges and clerks.

The idea is that separating matters like spreading a will of record or filing an inheritance tax return for a non-probate estate from traditional probate court proceedings should help streamline the court's docket as creditors learn that EM means there is no estate. When a creditor sees an EM classification, the creditor should know that it must cause an estate to be opened before filing a claim. Previously, the ES and EU classifications duped creditors into false hope that their claims were filed in an estate and they missed their deadlines.

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Indiana Courts

Ind. Law - Valpo law office secretary charged with theft of $70K

Ken Kosky reports in the NWI Times today:

VALPARAISO | A woman accused of stealing more than $70,000 from an attorney while she served as his secretary was charged Wednesday with three felonies.

Trina R. Grutzius, 29, of Lowell, was charged with one count of forgery and two counts of theft. She faces as many as 14 years in prison if convicted.

Grutzius is accused of stealing the money from Valparaiso attorney Matt Soliday in 2007 and 2008. She also is accused of forging his name on a Chase Bank credit card application in 2002, then having an outstanding balance of $4,614 on the card as of October when the forgery was discovered.

Soliday told police he discovered the forgery and theft and confronted Grutzius. The attorney said Grutzius admitted that whenever a client paid with cash, she issued a receipt to the client, destroyed the office copy and kept the money. Valparaiso Detective Lt. John Ross, who investigated the case, said Grutzius admitted committing the crimes to pay for her drug habit.

This is the fourth such theft in Valparaiso in about 10 months.

Earlier this month, Kimberly Shields, 43, of 254 Lincolnway, Valparaiso, who was office manager at Seven Napoleon Partnership in Valparaiso was charged with stealing more than $12,000 from the business.

In December, Julie Rosenbaum, 27, who has addresses in Portage and Valparaiso, was charged with stealing $15,000 to $20,000 from the Valparaiso law firm that employed her -- Douglas, Koeppen & Hurley.

In March, Amanda Dunlap, 30, of Rensselaer, was charged stealing more than $35,000 from her employer, Valparaiso attorney Gordon Etzler.

There is also a report in the Gary Post-Tribune today.

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Indiana Law

Environment - Still more on "U.S. EPA raises concerns about IDEM changes"

Following up on the Gary Post-Tribune story yesterday (see here and here), Gitte Laasby has a related story today. Some quotes:

City officials in Evansville share outrage from Hammond and Gary over changes in enforcement at the Indiana Department of Environmental Management.

They call the changes "absurd" and criticize IDEM's management for "emasculating" the agency. City officials are now taking their frustration to the Indiana General Assembly, where Hammond Mayor Thomas McDermott Jr. has been asked to testify to a state House committee.

Several bills also are in the works and the EPA has sent a letter with concerns to IDEM.

"We had very little expectation anything we said or did to communicate with (IDEM Commissioner Thomas) Easterly or Gov. (Mitch) Daniels would matter," said Dona Bergman, director of Evansville's Environmental Protection Agency. * * *

Bergman said Evansville Mayor Jonathan Weinzapfel talked to Daniels, and that Evansville EPA staff contacted the U.S. Environmental Protection Agency Region 5.

As the Post-Tribune reported Thursday, the regional office of the EPA sent a letter to IDEM Tuesday raising questions about the changes.

McDermott welcomed the intervention. He and a Hammond environmental manager were asked to testify before the House Ways and Means Committee in early February, "probably to answer questions about this whole situation," McDermott said.

"Maybe this has something to do with the change in administration in Washington. I welcome EPA's involvement." * * *

Bergman is not optimistic that bills requiring IDEM to enter local contracts will go anywhere, but hopes EPA and public awareness will help.

"There are obviously people at (EPA) Region 5 who are concerned," she said. "I think there are a number of mid- and low-level IDEM personnel who want to do a good job, who really care about the environment and protecting the environment. They're very distraught by the system ... and now a management team that seems bent on emasculating the entire agency."

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Environment

Legislative Benefits - "Transparency bills get no respect"

That is the headline to this editorial this morning in the Indianapolis Star:

It's still early in the session, but several bills that would tighten Indiana's extraordinarily loose oversight of state legislators' interactions with lobbyists already appear to be in jeopardy.

State Sen. Mike Delph, R-Carmel, said this week in a meeting with The Star's Editorial Board that he's pessimistic that three bills he authored on lobbying reform will make it out of committee.

As it stands, legislators aren't required to report lobbyists' gifts valued at less than $100. That means a lawmaker who accepts a lobbyist's offer of a $90 meal at one of Downtown's better restaurants doesn't have to report it -- even if the lobbyist picks up the tab night after night.

Senate Bill 17, which would reduce the minimum for reporting to $25, has been assigned to the Senate Rules committee, frequently a sign that the leadership has no intention of moving the legislation forward.

SB 242, which would require lobbyists to file weekly reports on their contacts with legislators and staff members, was dealt a similar fate.

So too was SB 15, a proposal authored by Sen. Pat Miller that would establish a one-year cooling-off period before a former legislator could work as a lobbyist before the General Assembly. [See earlier ILB entries on this bill here and here.] * * *

The Senate leadership's disinterest (and it's not any better in the House) in closing the huge loopholes in existing regulations is disappointing. The close ties binding lobbyists to lawmakers have fueled public cynicism toward the General Assembly, a fact that should alarm lawmakers. Instead, they fight to guard the status quo.

The reforms pushed by Delph and Miller are moderate and practical. They would promote better transparency in the legislative process and erect reasonable safeguards against corruption.

Opponents, confined to the ranks of lobbyists and lawmakers, have failed to mount any persuasive arguments against the proposals. If the bills die, as it appears they will, it will be only because legislators want to keep the stream of gifts, meals and job offers flowing. That may be in lawmakers' best interests, but it's not in the public's.

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Legislative Benefits

Environment - More on "U.S. EPA raises concerns about IDEM changes"

Updating yesterday's ILB entry, here, thanks to the Gary Post-Tribune, is a copy of the Jan. 20, 2009 USEPA letter to IDEM.

Posted by Marcia Oddi on Friday, January 23, 2009
Posted to Environment

Thursday, January 22, 2009

Ind. Decisions - Supreme Court decision in South Bend Studebaker cleanup case posted

Posted by the Court late this afternoon:

Cooper Industries, LLC v. City of South Bend, a 32-page, 5-0 opinion authored by Chief Justice Shepard:

The City of South Bend now owns much of the land where Studebaker Corp. once manufactured automobiles. It has sued Cooper Industries, LLC and others for environmental damage done to the site. In this appeal, the questions are whether the applicable statute of limitation bars these claims and whether appellant Cooper Industries is the corporate successor to Studebaker such that it may be liable on these environmental claims.

We hold that the statute of limitation bars the City's common law claims, that its claim under the Environmental Legal Action statute accrued at the time the statute became effective and thus is not barred, and that Cooper is the corporate successor to Studebaker for these purposes.

Worth reading.

For background, see this ILB entry from Jan. 11, 2008. Note particularly the connection between this opinion and Commercial Logistics Corp. v. ACF Indus., Inc., (06-3229), which is awaiting a decision by the 7th Circuit.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Environment | Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court rules on Indiana's rental agreement deposit statute

In Stan Klotz v. Sarah Hoyt and Chrissy Kornmann, an 11-page, 4-1 opinion, Justice Dickson writes:

This landlord-tenant dispute centers on Indiana's rental agreement deposit statute. We hold that a landlord's untimely or inadequate statutory damage notice to a tenant precludes only the landlord's claims for physical damage to the premises and does not bar the landlord from recovery of unpaid rent and other losses. * * *

We hold that a failure to timely comply with the notice of damages requirement subjects a landlord to forfeiture of all claims for physical damage to the premises, to refund of a tenant's damage deposit, and to payment of the tenant's statutory attorney's fees incurred by the tenant in seeking return of the deposit and in resisting the landlord's claim for premises damages, but such failure does not preclude a landlord from recovery of unpaid rent or other damages to which the landlord may otherwise be entitled. Here, the landlord's total claims so exceed the $6,000.00 small claims jurisdictional limit that the inadequacy of the landlord's purported notice of damages is immaterial, even though it would preclude his recovery of the portion of his claim that consists of physical damages to the premises and attorney fees, and would require him to refund the tenants damage deposit and resulting attorney fees. This cause is remanded to the trial court for entry of a judgment for the landlord in the sum of $6,000.00.

Boehm, and Rucker, JJ., concur.

Shepard, C.J., concurs in result with separate opinion. [which begins] I join in today‟s disposition and in directing that judgment be entered for $6,000. The Court‟s harmonization of the several sections of the statutes on rentals and security deposits is especially helpful.

Because we do not receive very many appeals from the 300,000 small claims cases litigated each year in Indiana, I would go a bit further and answer a question posed by this appeal but not answered in the Court‟s opinion. * * *

Sullivan, J., dissents with separate opinion. * * * I believe that this result is mandated by our decision in Lae v. Householder, where we said that, “[f]ailure to refund and supply the itemized list results in a waiver of any claim for damages and exposes the landlord to liability for the tenant‟s attorney fees.” 789 N.E.2d 481, 484 (Ind. 2003).

Here are earlier ILB entries on this case.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

Manual Clara v. State of Indiana - "Based upon the nature of the offense and Clara’s character, we cannot conclude
that the advisory sentence is inappropriate. Affirmed."

In The Winterton, LLC v. Winterton Investors, LLC, a 20-page opinion, Sr. Judge Sharpnack concludes:

Based upon the foregoing discussion and authorities, we conclude that the trial court erred by entering summary judgment in favor of Investors and against Winterton. We conclude that Winterton did not breach the Purchase Agreement either by not providing estoppel certificates and subordination agreements to Investors or by changing the closing date. Thus, the trial court’s entry of summary judgment and damages in favor of Investors and against Winterton is reversed and summary judgment shall be entered in favor of Winterton.

Further, we conclude that the trial court properly determined that the Purchase Agreement did not expire or terminate as required by the Back-up Purchase Agreement and, therefore, the Back-up Purchase Agreement did not come into effect. We affirm the trial court’s entry of summary judgment in favor of Investors and Winterton and against Brown.

Reversed in part, affirmed in part, and remanded to the trial court for further proceedings consistent with this opinion.

NFP civil opinions today (3):

In Re: The Matter of the Involuntary Termination of Parent-Child Relationship of B.M. and R.M. (NFP)

Melissa P. v. Bartholomew Co. Dept. of Child Svcs. (NFP)

Term. of Parent Child Rel. of S.S. and St.S., et al v. Jefferson Co. Dept. of Child Services (NFP)

NFP criminal opinions today (11):

Billy Masters v. State of Indiana (NFP)

Brian Freeman v. State of Indiana (NFP)

David Moseby v. State of Indiana (NFP)

Nathan K. Rhymer v. State of Indiana (NFP)

Tracy A. Lawrence v. State of Indiana (NFP)

Leonard Wechsler v. State of Indiana (NFP)

Shane Slagle v. State of Indiana (NFP)

Benjamin F. Pomeroy v. State of Indiana (NFP)

Jairo Armas Velasquez v. State of Indiana (NFP)

Jamond Harris v. State of Indiana (NFP)

Cherity Waters v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Ind. App.Ct. Decisions

Environment - Still more on: Cleanup of Angola's former Dana site

Updating this ILB entry from Jan. 19th, Becky Manley of the Fort Wayne Journal Gazette reports today:

After weeks of discussion about a contaminated industrial site within Angola’s city limits, the Steuben County commissioners have agreed to give the city $1 million.

The commissioners made the decision in a 2-1 vote Tuesday. The Angola City Council also voted Tuesday to spend $1 million to clean the former Dana Corp. site at 203 Weatherhead St.

Recent discussion about the cleanup, which will cost at least $5.5 million, became more critical in the wake of Dana’s bankruptcy, as well as a fall water test by the city that detected a contaminant.

Because of its bankruptcy, Dana is expected to stop operating a hydraulic system used to keep more contamination from seeping into the city’s water supply.

Dana will no longer be responsible for cleanup costs, which would then fall to the current property owner, Univertical Corp.

Univertical, which employs 55 people, could move out of state if forced to shoulder the entire cost to clean the site, according to that company’s chief executive officer, W. Chuck Walker. * * *

Steuben County Council members are expected to discuss the county’s contribution to the cleanup at its next meeting Feb. 10.

Angola Mayor Richard Hickman said local officials will then go to the state to see what can be done to bridge the gap between the local contribution and the total cleanup cost.

When its bankruptcy closes, the state will receive 300,000 Dana shares toward the cleanup costs, according to Amy Hartsock, public information officer for the Indiana Department of Environmental Management. At the close of business Wednesday, Dana shares were worth 60 cents.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Environment

Ind. Decisions - One Indiana decision today from 7th Circuit

In Estate of Suskovick v. Anthem (SD Ind., Judge Barker), a 28-page opinion, Judge Flaum writes:

Until his sudden death in 2006, Anthony J. Suskovich worked as a computer programmer for WellPoint, a health insurance company, and Trasys, an information technology (IT) company. In exactly what capacity he worked for those two companies is the subject of this present case. Suskovich’s estate claims that he was a regular employee, and worse, one that was not paid overtime or enrolled in benefits programs for which he was eligible, and who owes state and federal tax agencies various taxes that WellPoint and Trasys should have withheld. WellPoint and Trasys claim that Suskovich was an independent contractor, and thus ineligible for benefits or overtime, and that he owes back taxes because of his own failure to file proper tax returns or pay his withholding taxes. After the district court granted sum- mary judgment to WellPoint and Trasys, the estate brought this appeal. For the following reasons, we affirm the district court’s grant of summary judgment. * * *

The estate’s appeal raises three issues. First, the estate claims that the district court mistakenly found that the deciding factor with respect to Suskovich’s employment status was the contractual relationship between the parties; second, that the district court wrongly found that the factors in the control test overwhelmingly favored the appellees; third, that the district court con- sidered hearsay testimony that should have been barred by the Dead Man’s Statute. WellPoint and Trasys raise an additional issue, arguing that they can prevail on alternative grounds for the ERISA, FLSA and indemnification claims even if this court decides the employment question against them.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Ind. (7th Cir.) Decisions

Environment - "U.S. EPA raises concerns about IDEM changes"

Gittle Laasby of the Gary Post-Tribune reports today:

Recent changes in enforcement at the Indiana Department of Environmental Management are not going over well with the U.S. Environmental Protection Agency.

The EPA sent a letter to IDEM Tuesday, raising questions about the changes and requesting a meeting.

"It has come to our attention that the Indiana Department of Environmental Management (IDEM) has made or is planning to make several changes to its enforcement program," EPA Acting Regional Administrator Bharat Mathur wrote in the Jan. 20 letter to IDEM Commissioner Tom Easterly.

"These changes include eliminating the Office of Enforcement, revising the Compliance and Enforcement Policy (CERP), and eliminating funding for local air authorities."

EPA Region 5 "would like to discuss the nature, extent and status of these changes with IDEM so that we can evaluate their impact on the State's federally authorized, delegated and/or approved environmental programs," Mathur said in the letter to IDEM, which was sent Tuesday.

For background, start with this ILB entry from Dec. 19, 2008.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Environment

Ind. Gov't. - More on: Fine officials who keep documents under wraps

Updating this ILB entry from yesterday on SB 232, several papers today have stories on yesterday's committee hearing.

Patrick Guinane of the NWI Times reports:

A state Senate panel heard Wednesday from groups that want to put some "teeth" behind Indiana's open government laws, but local officials say their budgets can't withstand the bite.

Senate Bill 232 would allow a judge to impose fines of up to $1,000 against officials or government agencies that blatantly flout requests for public records or ignore requirements to make meetings open to the public. The measure also would require local governments to e-mail or otherwise make available meeting notices to citizens who request them.

"This bill really just helps to tweak a few things and improve our access to public information," Times Executive Editor William Nangle testified on behalf of the Hoosier State Press Association.

But municipal and county officials told the Senate Local Government Committee the meeting notice requirement could put an undue financial or administrative burden on their peers. And they called it unfair to potentially hold a government employee personally liable for a decision not to release records or to conduct business behind closed doors.

The Senate panel did not vote on the measure Wednesday but is likely to do so next week.

Bryan Corbin of the Evansville Courier & Press writes:
Citizen activists in Indiana long have complained the state's open records laws have no clear method for punishing government officials who flout the law and refuse to release public documents. * * *

When Hoosiers request public records under current law and a government official refuses, the recourse is to file a lawsuit and ask a judge to release the records. Courts can impose attorneys' fees against violators but not fines or punitive damages that would serve as a deterrent.

Senate Bill 232, which would create fines of up to $1,000 for willful record concealers, was heard Wednesday by the Senate Local Government Committee. Lawmakers heard lengthy testimony and likely will vote on the bill next week. The bill would do several other things:

* If a government agency blacks out information from a public record before releasing it, the state public access counselor's office could review the unedited document and issue a nonbinding legal opinion on what should be disclosed. If the agency still declines to release the full record, the person requesting them could ask a judge to decide.

* Members of the public could ask a government board or agency to put them on its yearly contact list for 48-hour notification of any board meetings. News organizations already file such annual requests, but the bill would extend that opportunity to anyone, via e-mail, fax or mail. * * *

Clarke Kahlo, an Indianapolis neighborhood activist, showed lawmakers a document he requested from a municipal water utility several years ago. Almost all of the text had been marked out by an attorney, he said, rendering it useless.

"It's the people's business; it's not their private domain," Kahlo said. "Most officials are well-meaning, but you've got (officials) who have bad blood or there's some political issues going on there, and they're not going to give it to you. They know that you're going to have to go hire a lawyer as a remedy ... and as likely as not, you're not going to do that."

Anthony Fargo, an Indiana University journalism professor who serves on the Indiana Coalition for Open Government, conducted a survey of those who sought nonbinding legal opinions from the public access counselor's office.

A common complaint, Fargo said, was that the office lacks enforcement power if an obstinate official doesn't release records.

"An Indiana Code provision that has no enforcement capability is like a toothless dog that barks loud but has no bite," said Fargo.

Much of Wednesday's debate focused on whether local governments should be forced to notify individuals of meetings, rather than sending notice to the news media and posting a written notice on the door of town hall, as is the case now.

Sen. Mike Young, R-Indianapolis, questioned whether a better approach would be a Web page where a local government could post Web notices of its meetings.

From an AP story by Deanna Martin:
The bill would allow judges to fine public agencies or agency workers who intentionally violate open-meeting rules or public-records laws, which citizens and the media use to obtain many government documents. An agency could pay for the fines from its budget, while a fine on an employee would come from the worker's wallet. * * *

Opponents of the proposal -- including associations representing county and city governments -- worry that the law would mean steep fines for workers who withheld records at the request of their bosses.

"They may be intentionally denying the record, but they're acting under the orders of their superior in the office," said Andrew Berger, a lobbyist for the Association of Indiana Counties.

But Sen. Beverly Gard, R-Greenfield, said lawmakers should trust judges to determine if individual employees were blatantly ignoring the laws or an agency was directing them to do so.

"We give judges discretion, and I don't see any reason to not give a judge discretion here," said Gard, the bill's sponsor. * * *

The law already allows judges to order the public official or agency that violated the law to pay the plaintiff's legal fees -- but they can't impose civil penalties.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Indiana Government

Ind. Gov't. - Library troubles in Terre Haute and Muncie

Following upon several earlier ILB entries headed "Libraries are overwhelmed by unemployed filing for help", there are reports today in the Muncie Star-Press and the Terre Haute Tribune-Star of libraries in trouble.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Indiana Government

Ind. Courts - Lawrence County accepts a grant for the local Drug Court

Bob Bridge reports in the Bedford Times-Mail:

The Lawrence County Commissioners Tuesday morning voted unanimously to accept a grant for the local Drug Court.

“We received a grant award of $69,847 from the Indiana Criminal Justice Institute,” said Wanda Harper, director of the county’s Drug Court. “Our match is $104,771.”

The match is budgeted in-kind via personnel.

Posted by Marcia Oddi on Thursday, January 22, 2009
Posted to Indiana Courts

Wednesday, January 21, 2009

Ind. Decisions - No transfer list yet for the week ending Jan. 16th

As noted here yesterday, still no sign of the Clerk's Transfer List for the week ending Jan. 16th. The ILB sent an inquiry yesterday to the Clerk's Office, but has received no response.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Indiana Transfer Lists

Environment - West Virginia DEP orders review of its fly ash impoundments

From an AP story this afternoon:

CHARLESTON, W.Va. -- West Virginia is taking a closer look at 18 fly ash impoundments to make sure the dams are structurally sound and built to current safety standards. * * *

DEP is requiring dam owners to provide updated inspection reports from their engineers, along with evaluations of structural stability. They must also identify whether there's a risk the impoundment could affect underground mines.

State inspectors will then document each impoundment with aerial photographs and ground inspections. A report should be ready for the public by summer.

See a list of ILB entries involving "coal ash" here.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Environment

Law - Promising start for Obama re public records, transparency and open government

THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
January 21, 2009

The President today signed two Executive Orders and three Presidential Memoranda. These five documents represent a bold first step to fulfill his campaign promises to make government more responsible and accountable, to launch sweeping ethics reform, and to begin a new era of transparent and open government. * * *

In the Presidential Memorandum on Transparency and Open Government, and the Presidential Memorandum on the Freedom of Information Act, the President instructs all members of his administration to operate under principles of openness, transparency and of engaging citizens with their government. To implement these principles and make them concrete, the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive within 120 days directing specific actions to implement the principles in the Memorandum. And the Memorandum on FOIA instructs the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context.

Finally, the Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents. This order ends the practice of having others besides the President assert executive privilege for records after an administration ends. Now, only the President will have that power, limiting its potential for abuse. And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Joe Allan McNary v. Margaret Jo McNary (NFP), an 11-page opinion, Judge Mathias wrties:

Margaret J. McNary (“Wife”) filed a petition in Marion Superior Court to enforce the property settlement agreement entered into by her and ex-husband, Joe A. McNary (“Husband”). When Husband failed to respond, the trial court entered a default judgment against him. Husband subsequently filed a motion to set aside the default judgment, which the trial court denied. * * *

On March 1, 2007, Wife filed a petition to enforce the property settlement agreement, claiming that Husband had not paid to her the sums she was entitled to under the agreement as a result of his retirement. Husband apparently has no permanent address. Instead, he lives in a recreational vehicle. In order to receive mail, he maintained this mail “drop box” in South Dakota. * * * When this mail was returned, Wife served Husband by UPS, using the same South Dakota address. Husband never responded to Wife’s petition and never appeared at the scheduled hearing on Wife’s petition. Therefore, on May 22, 2007 the trial court entered a default judgment against Husband in the amount of $8,673.29. * * *

Here, Husband claims that he had no notice of the hearing or Wife’s petition. We emphasize that it was Husband’s burden to prove sufficient grounds for relief under Trial Rule 60(B). However, Husband presented no evidence regarding his claim that he did not receive notice. Instead, he merely presented the argument of counsel to the effect that he did not receive notice. However, counsel acknowledged that a copy of Wife’s petition was received at his mail drop box in South Dakota, but argued that whoever had received it was not authorized by him to accept such service. Given the fact that Husband had no permanent address and maintained this drop box in order to receive mail, we cannot say that the trial court erred in concluding that Wife gave Husband notice of her petition by having a copy of the petition delivered to Husband’s only mailing address.

Husband claims that Wife could have given him notice of the pleading via service by publication. But given Husband’s itinerant lifestyle, it is highly unlikely that Husband would have received actual notice by these means. Ultimately, it was Husband’s burden to establish the grounds for setting aside the default judgment, and under the present facts and circumstances, we cannot say that the trial court abused its discretion in concluding that Husband had not done so.

Because Husband did not establish that he did not receive notice, he must demonstrate a meritorious defense. However, other than simply alleging in his motion to set aside the default judgment that he did have a meritorious defense, Husband set forth no admissible evidence to make a prima facie showing of a meritorious defense. * * *

The trial court did not abuse its discretion in denying Husband’s motion for a continuance of the hearing on his motion to set aside the default judgment, and the trial court did not abuse its discretion in denying Husband’s motion to set aside the default judgment. Affirmed. * * *

Judge Brown, concurring in result. * * * Ind. Trial Rule 4.1, which governs service on individuals, does not explicitly provide for service in a “drop box” for a person living in a recreational vehicle in the manner performed by Wife. However, I concur in result because I agree with the Majority’s conclusion that “Husband presented no evidence regarding his claim that he did not receive notice.”

In Elmer J. and Sharon J. Willhite v. Mainsource Bank, successor in interest to Peoples Trust Co. (NFP), a 12-page opinion, Judge Robb writes:
Elmer and Sharon Willhite appeal the trial court‟s grant of summary judgment in favor of MainSource Bank (“MainSource”) in this action for mortgage foreclosure. On appeal, the Willhites raise three issues, which we consolidate and restate as: 1) whether the trial court applied the proper standard of review; and 2) whether the trial court erred when it determined that no genuine issues of material fact exist with respect to the Willhites‟ fraud claims. Concluding that the trial court applied the proper standard, no genuine issues of material fact exist, and MainSource is entitled to judgment as a matter of law, we affirm.
NFP criminal opinions today (2):

Terrell Gartin v. State of Indiana (NFP)

John Pickett v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Ind. App.Ct. Decisions

Courts - Kentucky Judge says legislature can't 'stop the clock'

Tom Loftus reports in the Louisville Courier Journal:

FRANKFORT, Ky. — The General Assembly cannot “stop the clock” and act on legislation after its constitutional deadline to adjourn, a Franklin circuit judge ruled this morning.

And a 2008 bill that included the legislature’s road construction plan is invalid because the final steps taken to enact it occurred after midnight on the final day of the 2008 legislative session, Circuit Judge Phillip Shepherd ruled.

The ruling came in a lawsuit brought by Senate President David Williams in May 2008 against Gov. Steve Beshear.

Williams claimed the legislature had properly adopted its own road plan in House Bill 79, that Beshear’s veto of that bill was invalid and that the governor’s decision to follow his own plan was “an unconstitutional usurpation of power.”

But Shepherd ruled today that the legislature’s road plan within HB 79 was invalid because final action on the bill took place after the last moment for lawmakers to act during the 2008 session — midnight on April 15.

“HB 79 was not signed by the presiding officers of each house, nor was it properly enrolled, nor was it delivered to the governor, prior to midnight on April 15, 2008,” Shepherd said in his opinion.

He rejected what he called “Williams’ self-serving assertion” that courts could not consider clear evidence that final actions took place after midnight on the bill and must consider only legislative journals, which showed action on the bill was taken before midnight.

“He argues that if the legislature violates its constitutional duty, but then covers its tracks with a journal entry, no one can question its action,” Shepherd stated.

The judge said that this argument undermines separation-of-powers provisions of the Kentucky Constitution.

“But more importantly, it shows a complete lack of respect for the institutional integrity of both the courts and the legislative process required by the Constitution,” Shepherd wrote. “Such lack of respect can only undermine public confidence in government.”

Under Shepherd’s ruling, the Beshear administration must follow the road construction plan that it submitted to the General Assembly during the 2008 session.

Shepherd granted a motion from Williams that blocks the administration from implementing changes to the plan that it made after the 2008 session adjourned.

Jack Brammer reports in the Lexington Herald-Leader:
FRANKFORT — A judge ruled Thursday that Kentucky lawmakers must end their controversial practice of stopping the clock in a lawmaking session to conduct business past the constitutional deadline of April 15.

Franklin Circuit Judge Phillip Shepherd ruled that a bill Gov. Steve Beshear vetoed earlier this year containing the legislature's six-year road construction plan is invalid because lawmakers failed to give the measure to the governor on time.

Shepherd said the state constitution required the legislature to present the bill to the governor for his consideration before midnight April 15, even if that means they must ”nail the legislation to the governor's door.“

”Because it is undisputed that House Bill 79 was not presented to the governor until April 16, after the legislature's power to conduct legislative business had terminated, this court holds that provisions of House Bill 79 are null and void,“ Shepherd said in a nine-page ruling. * * *

It was not immediately clear how Shepherd's ruling would affect other bills the legislature passed after it ”stopped the clock“ just before midnight April 15 to continue business into April 16.

The House and Senate had not finished their work in the final hours of the 60-day lawmaking session, and they ordered the clocks stopped so that midnight would not technically happen until they were ready for it.

They passed about a dozen bills — including the road plan — between midnight and 1 a.m. on April 16th — the 61st day of the session. * * *

Williams also urged Beshear to ask Shepherd to reconsider his order because ”it is a longstanding practice for governors to accept and act upon bills presented to them on the day after adjournment.“

If Beshear doesn't contest the order, Williams said the governor must treat all similar pieces of legislation as invalid.

”If Judge Shepherd's ruling stands as is, it could lead to a myriad of litigation not desired by the legislative or executive branches,“ he said.

But Beshear spokesman Jay Blanton said the governor is ”pleased that the court has found that the words of the constitution mean what they say, that the legislature can't stop the clock and continue working after the April 15 deadline.“

The Indiana General Assembly used to regularly "stop the clock." And the process was upheld -- see State v. Schricker 228 Ind. 41 (1949):
Appellants seek to challenge the validity of certain acts of the 86th Regular Session of the General Assembly. The complaint charged in substance that House Bills numbered 379 (Ch. 257), 380 (Ch. 232), 381 (Ch. 233), and 25 (Ch. 277), and also "fifteen or twenty other bills involving expenditures and activities of various units and functions of government," were invalid for the reason that they were each passed by the General Assembly after the hour of 12 o'clock midnight, Monday, March 7, 1949, which under § 29 of Article 4 of the constitution was the time of expiration of the regular session; that in fact the General Assembly did not adjourn sine die until 5:16 P.M. Central Standard Time on Wednesday, March 9, 1949, which was a period of more than 41 hours longer than the time fixed by the constitution for the regular session; that the General Assembly stopped the clocks and timepieces at 11:22 P.M. on March 7, 1949, and remained stopped until March 9, 1949.

The complaint further states that the General Assembly by its officers and employees falsely and fraudulently made official entries in the journals showing the Assembly adjourned sine die at 11:59 P.M., March 7, 1949.

It also charged that the presiding officers of each of the Houses falsely, fraudulently and wilfully attested and certified as to the genuineness and correctness of said bills as having been passed by the General Assembly; that the Secretary of State has accepted and filed in his office all of the questioned enactments as certified to him by the President of the Senate and Speaker of the House of the General Assembly; and that moneys of the state will be illegally * * *

Since the decision in Evans, Auditor v. Browne (1869), 30 Ind. 514, supra, this court has consistently held that a proper authentication of an enrolled act is conclusive, as a matter of law, that the act was duly passed in conformity to the constitution.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Courts in general

Ind. Decisions - Supreme Court issues judiciary disciplinary ruling

In In the Matter of the Hon. Kenneth R. Scheibenberger, a 3-page, Per Curiam decision, the Court concludes:

Accordingly, the Respondent, Kenneth R. Scheibenberger, Judge of the Allen Superior Court, is hereby suspended from office without pay for a period of three (3) business days, which shall commence on Wednesday, February 11, 2009. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against the Respondent.
This ruling is of course no surprise, as the actual decision was made Nov. 21, 2008. See also this ILB entry from Nov. 22nd.

As reported here this afternoon by the Fort Wayne Journal Gazette:

The Indiana Supreme Court has issued an opinion setting the suspension date for Allen Superior Court Judge Kenneth R. Scheibenberger. The three-day suspension, without pay, will begin Feb. 11.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "When Lawyers Criticize Judges, How Vague Must They Be?"

A story today in the Detroit News, reported by Paul Egan, reports:

A federal appeals court dealt a setback to outspoken Southfield attorney Geoffrey Fieger on Tuesday, overturning an opinion that state court rules requiring Michigan lawyers to be courteous when they talk about judges are unconstitutional.

In a 2-1 decision, the 6th U.S. Circuit Court of Appeals ruled that Fieger and Detroit lawyer Richard L. Steinberg "lacked standing" in their lawsuit against the Michigan Supreme Court, meaning they did not have legal grounds to challenge the rules in federal court.

The case arises from a reprimand the Michigan Supreme Court gave Fieger after a 1999 radio interview in which Fieger referred to specific state appeals judges as jackasses and compared them to Adolph Hitler and his associates.

Fieger sued the Michigan Supreme Court to challenge the discipline in 2006. In September 2007, U.S. District Judge Arthur J. Tarnow declared unconstitutional the sections of the Michigan Rules of Professional Conduct that require attorneys to treat everyone involved in the legal process with "courtesy and respect."

But the appeals court said Tarnow abused his discretion. Fieger failed to demonstrate he had been harmed by the rules or faced "a significant possibility of future harm based on a single ... reprimand," the court ruled.

Chief Judge Danny J. Boggs joined the opinion delivered by Circuit Judge Richard Allen Griffin.

In a dissent, Senior Judge Gilbert S. Merritt ruled Fieger had demonstrated that he risked future harm from the rules.

"He has alleged that he intends to continue being an outspoken critic of the Michigan judiciary," Merritt wrote. "If history is any future guide, much of that future criticism could very plausibly be described as 'discourteous,' putting him in realistic danger of prosecution."

Here is a link to the 34-page, 6th Circuit opinion (thanks to How Appealing).

The headline, "When Lawyers Criticize Judges, How Vague Must They Be?," comes from this WSJ Law Blog entry today.

Some readers will recall that Indiana had its own litigation on this issue; for background begin with this ILB entry from April 5, 2004.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Courts in general

Law - "A Kinder Bankruptcy Law Is Sought as Filings Soar "

That is the headline to a lengthy story in today's WSJ, reported by Kristina Doss. Some quotes:

As bankruptcy filings ramp up amid the world-wide financial crisis, companies are finding that changes made to the U.S. Bankruptcy Code three years ago have made it more difficult to restructure. But some experts believe relief could be on the way.

U.S. lawmakers are scrambling to find a way to revive the economy and the businesses that drive it amid the recession. Revamped laws designed to make the restructuring process kinder to struggling companies may be seen as part of the solution, bankruptcy experts say.

Such changes may provide "a mechanism by which people and businesses can begin economic life anew," said Jack Williams, resident scholar at the nonpartisan American Bankruptcy Institute. "Politically, the winds are right for revisiting bankruptcy law."

Changes to the Bankruptcy Code that took effect in late 2005 have made Chapter 11 a less hospitable shelter for struggling companies. Jay Westbrook, a law professor at the University of Texas, said lawmakers focused on changing the consumer provisions and didn't "carefully" work through the business amendments. As a result, provisions were added that gave companies less time and money to reorganize their businesses. * * *

Barack Obama has vowed to change bankruptcy laws to help struggling Americans stay in their homes, and Mr. Williams says bankruptcy reformists believe the new administration will be receptive to the idea of bankruptcy reform for businesses.

Here is more on this from the WSJ Law Blog.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to General Law Related

Ind. Gov't. - Fine officials who keep documents under wraps

The Fort Wayne Journal Gazette editorializes today:

State law requires local and state officials to hand over public documents when citizens request them. If officials refuse, citizens can seek the documents in court.

What happens to officials who blatantly keep public records secret?

Nothing.

State Sen. Beverly Gard rightly wants to change that, and her bill to allow a judge to impose a fine of up to $1,000 for an “intentional and knowing violation” is scheduled to be heard this week by a Senate committee.

In addition, the law would allow any citizen to request advance notice of a government meeting by e-mail.

Too often, Indiana public officials are reluctant to release public information. This legislation would give them some incentive.

This follows on the Jan. 16th Evansville C&P editorial of support for the bill, SB 232 -- see ILB entry here.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to Indiana Government

Law - Even more on "Kentucky Tests State's Reach Against Online Gambling"

Updating this ILB entry from Dec. 13th, which began with this quote from the Lexington Herald-Leader:

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.
Today Tom Loftus of the Louisville Courier Journal reports:
FRANKFORT, Ky. -- The Kentucky Court of Appeals yesterday struck down a lower court order that would have allowed Gov. Steve Beshear's administration to take control of 141 illegal gambling Web sites.

The administration filed suit in Franklin Circuit Court in September against the 141 Internet domain names. The suit contended that Kentucky law allows the state to seize devices -- in this case the domain names -- used in illegal gambling.

Beshear has said the sites are "leeches on our communities" that take money from Kentucky's horse-racing industry.

Franklin Circuit Judge Thomas Wingate allowed the seizure, but the appeals court stayed that order until it could rule on the matter.

And yesterday, in a 2-1 decision, an appeals court panel disagreed with Wingate, holding that the domain names are not gambling devices as defined by Kentucky law.

"Regardless of our view as to the advisability of regulating or criminalizing Internet gambling sites, the General Assembly has not seen fit to amend (Kentucky law) as to bring domain names within the definition of gambling devices," Judge Michelle Keller wrote.

Judge Jeff Taylor concurred in a separate opinion, while Judge Michael Caperton wrote a dissenting opinion. * * *

Frankfort attorney William Johnson, who represents some of the 141 domain names, said, "We're pleased because the main opinion is right down the line with our arguments that the court didn't have jurisdiction because … Internet names are not gambling devices."

Johnson said he expects the administration to appeal to the Kentucky Supreme Court.

Here is the Herald-Leader story, reported by Jack Brammer. Some quotes:

FRANKFORT — Kentucky, a haven for gamblers who want to bet on horse racing, has hit a setback in its efforts to stop unregulated online casino gambling.

In a 2-1 ruling Tuesday, the Kentucky Court of Appeals said the state does not have the jurisdiction to seize 141 online casinos' Internet domain names in an effort to keep them from operating in the state.

The ruling also said a Franklin Circuit Court judge cannot hold further hearings on the issue.

"This is a tremendous victory for Internet freedom and the rights of Kentucky residents who enjoy playing online poker," said John Pappas, executive director of the Poker Players Alliance, in a statement. * * *

The appellate court ruling said Kentucky lacks jurisdiction to block online gambling because state law does not define an Internet domain name as a gambling device subject to state authority.

"Regardless of our view as to the advisability of regulating or criminalizing Internet gambling sites, the General Assembly has not seen fit to amend (state law) so as to bring domain names within the definition of gambling devices," the court said.

In an unprecedented move last year, state Justice and Public Safety Cabinet Michael Brown, with Beshear's blessing, sued the Web sites. The state contended that the Web sites amounted to illegal gambling.

Here, thanks to Michael Stevens' Kentucky Law Blog, is a copy of the 16-page "Order Granting Petition for Writ of Prohibition."

And here are earlier ILB entries on this suit.

Posted by Marcia Oddi on Wednesday, January 21, 2009
Posted to General Law Related

Tuesday, January 20, 2009

Environment - Indianapolis law firm reviews Randolph County proposed CAFO regs

Seth Slabaugh reports today in the Muncie Star-Press:

[T]he Indianapolis law firm Bose McKinney & Evans, which reviewed draft CAFO regulations at the [Delaware County planning] commission's request, cited several examples of how the proposed regulations might violate the state's home rule law.

Under that law, local governments have no authority to regulate "conduct that is regulated by a state agency, except as expressly granted by statute."

For example, because the Indiana Department of Environmental Management (IDEM) regulates CAFO setback distances from public roads, creeks and so forth, the setbacks proposed by Delaware County would appear to violate home rule law, Bose McKinney said in a legal analysis.

Likewise, Delaware County's attempt to regulate the closure of manure storage structures also appears to violate the home rule law because IDEM regulates CAFO closures, according to the law firm.

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to Environment

Ind. Decisions - Transfer granted in “Litigation Hell” case

The ILB has just received notice that last Thursday, Jan. 15th, the Supreme Court granted transfer in the case of Lawrence Gunkel and Judy Lynn Gunkel v. Renovations, Inc. by Wagler and Menno D. Wagler, et al. The NFP opinion, issued June 27, 2008, included this quote from a dissent by Judge Kirsch:

It will soon be ten years since the Gunkels entered into a contract for construction of their new home. During this decade, they have not been served well by either their contractors or our legal system. Were Dante Alighieri alive today, this case would provide him with the material to add a tenth circle to his Inferno and call it “Litigation Hell.”
See the COA ILB summary here, 5th NFP opinion.

No sign yet of the Clerk's Transfer List from the week ending Jan. 16th, which presumably also includes notice of the Jan. 12th transfer denial by the Supreme Court of the Smith & Wesson v. City of Gary petition.

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Arthur Oatts v. State of Indiana , a 24-page opinion, Judge Brown writes:

Here, evidence that A.S. viewed an allegedly pornographic video and had been previously molested does not fall into one of the enumerated exceptions of Ind. Evidence Rule 412 or under the common law exception. The Indiana Supreme Court has held that the exclusion of past molestation was not erroneous under Indiana's Rape Shield Statute and Rule. * * *

Oatts next argues that the exclusion of the evidence violated his right to cross examine witnesses under the Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Indiana Constitution. * * *

Oatts failed to show that either the prior molestation or videotape were similar to the current offense. Oatts also failed to show that the evidence was relevant or that the probative value outweighed the prejudicial effect. Under the circumstances, we cannot say that the exclusion of the evidence violated Oatts's right to cross examine witnesses under the Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Indiana Constitution. * * *

The next issue is whether the trial court abused its discretion by responding to the jury's questions. * * *

We cannot say that the trial court's answer to the jury's question emphasized any particular instruction or that Oatts was prejudiced by the trial court‟s answer. To the extent that Oatts argues that the jury should have been instructed on a different act for each of the three counts, we note that the trial court entered judgment only on the first count out of a concern for double jeopardy. Consequently, we cannot say that Oatts's substantial rights have been prejudiced. * * *

For the foregoing reasons, we affirm Oatts's conviction for child molesting as a class C felony.

In Lew Wood v. Leigh Walden and Sherry Shively, a 10-page opinion, Chief Judge Baker writes:
Appellant-plaintiff Lew Wood, individually and as legal guardian of his daughter, M.W., appeals the denial of his motion for partial summary judgment and the trial court's grant of summary judgment and entry of final judgment for appellee-intervening defendant State of Indiana (State), on his complaint for declaratory judgment, which alleged that Indiana Code section 34-51-3-6 (punitive damages statute) is unconstitutional. In particular, Wood argues that the punitive damages statute violates various provisions of the Indiana Constitution, including: (1) the Privileges and Immunities Clause in Article I, section 23; (2) the Open Courts provision set forth in Article I, section 12; and (3) Article IV, sections 22 and 23, which prohibit the passage of special legislation and require that all laws shall be general.

The State cross-appeals, claiming that the trial court erred in ruling on the declaratory judgment action because Wood has no standing to challenge the constitutionality of the punitive damages statute in these proceedings. Specifically, the State argues that Wood is improperly asking us to decide issues that have not yet ripened “and may never ripen.”

We find that the issue presented in the State's cross-appeal is dispositive and therefore conclude that no justiciable controversy exists in this case regarding the constitutionality of the punitive damages statute. Therefore, because Wood lacks standing to challenge the constitutionality of that statute, we affirm the judgment of the trial court.

NFP civil opinions today (1):

In the Matter of: B.C. and H.C. (NFP)

NFP criminal opinions today (9):

Howard W. Squier, II v. State of Indiana (NFP)

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

Anthony D. Shreve v. State of Indiana (NFP)

David Rouse v. State of Indiana (NFP)

Lisa Gagnier v. State of Indiana (NFP)

Finest Davis v. State of Indiana (NFP)

Rodney Shaffer v. State of Indiana (NFP)

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

Cartrell Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge Daniel C. Banina, Miami Superior Court, admonished

From a release today, issued by the Supreme Court:

The Indiana Commission on Judicial Qualifications has issued a Public Admonition against Judge Daniel C. Banina, Miami Superior Court Judge. Judge Banina is being admonished for a February 2007 incident in which he admits to violating the Code of Judicial Conduct and basic due process requirements for emergency orders.

The Commission admonishes Judge Banina for granting an ex parte petition. That means the order was granted for the benefit of one party without notice given to another interested party. Ex parte communications are generally barred to ensure every person with a legal interest in a proceeding has the right to be heard.

The petition Judge Banina granted was for temporary custody of a child. The circumstances surrounding the petition relate to a mother and father who were divorced but living together. The couple had a child together, but that child was under the sole custody of the mother. The petition was granted in favor of the father without prior notice given to the mother.

In January 2007, the mother decided to move from the home and take the child with her. The father and police intervened and demanded that she leave the child with the father. In February 2007, the father’s attorney filed an emergency petition for his client to receive temporary custody of the child.

On February 2, 2007 Judge Banina issued an Order granting temporary custody to the father. Judge Banina set a hearing for March 27, 2007. Instead, Judge Banina should have ensured that the mother had notice of the petition and the Judge should have held a hearing to resolve any custody dispute.

The Order violated Canons 1, 2, and 3 of the Code of Judicial Conduct. The Canons require judges to ensure the fairness, impartiality, and integrity of the judiciary. The order also violated Canon 3B(8), which forbids ex parte contacts absent a true emergency. Even in a true emergency the person is entitled to a hearing within 10 days of the ex parte Order.

The Commission now admonishes Judge Banina for violating the Code of Judicial Conduct and the laws of the State. Judge Banina will not formally be charged with ethical misconduct. He cooperated fully with the Commission in this matter and acknowledges he violated the Code of Judicial Conduct.

Here is the Public Admonition.

According to this ILB entry from Dec. 2, 2008, "Governor Mitch Daniels today announced the appointment of Daniel C. Banina as judge of the newly created Miami Superior Court II, effective Jan. 1. Banina, of Peru, has served as judge of the Miami Superior Court I since 1996."

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to Indiana Courts

Ind. Courts - More on "Home Place annexation ruling may be years off"

Carrie Ritchie of the Indianapolis Star wrote on Jan. 9th:

Geist and Fishers have a preliminary decision on their annexation battle, but Carmel and Home Place could be years away from hearing a decision on theirs.

In December, Hamilton Superior Court 3 Judge William Hughes said he would not hear Carmel and Home Place's case until Fishers and Geist reached a decision that could not be appealed.

Today Ms. Fisher reports in a story that begins:
FISHERS, Ind. -- A bitter fight lasting more than four years ended Monday when Hamilton County residents around a popular waterway threw in the towel.

They announced they won't appeal a judge's Dec. 31 decision that Fishers can annex 2,200 upscale homes surrounding Geist Reservoir. Leaders of Geist United Opposition had promised a fight in the state's appeals court.

The sudden decision not to appeal Fishers' annexation could move up court dates for Carmel officials trying to annex adjacent land in the unincorporated Home Place community.

The Fishers annexation will add about 5,500 people to the town's 66,000, making it the state's eighth largest community by population, about 700 shy of topping Bloomington.

Geist United won't continue the fight because new property tax caps mean their taxes won't change that much, said the group's president, Pete Peterson. The prospect of higher taxes had originally fueled their remonstrance.

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to Indiana Courts

Ind. Courts - More on "Old courthouse in Crown Point hit by money woes"

Updating this ILB entry from Jan. 18th, Kathleen Quilligan of the NWI Times writes today:

CROWN POINT | Although the Old Lake County Courthouse is feeling financially squeezed, the board of directors who runs the private building is working on ideas to help keep the "Grand Old Lady" in good shape.

Carol Drasga, a member of the board of the Lake Court House Foundation Inc., is working on an investigative marketing and research committee that is looking at ways to help the courthouse raise money. The foundation is operating at a deficit for the first time since the organization took control of the building in the 1970s.

"Many people don't understand exactly what (the courthouse) is," Drasga said, who pointed out that many people are surprised to learn the foundation doesn't have a lot of money.

The nonprofit foundation receives no support from taxpayer dollars. The board that governs the building consists of volunteers, and the only person on the payroll is a part-time secretary.

Drasga said that starting this year, the committee would like to market the courthouse and will take its ideas to the full board. One idea is to ask for families to send something as simple as a $5 donation.

"If each family in Lake County sent $5, we'd have a lot of money," Drasga said.

Drasga said, after talking with people, she has discovered that many have driven past the courthouse but never been in it.

Board member Martha Wheeler said the foundation has been running at a deficit of $1,000 to $2,500 per month. While the courthouse has a steady income from renting shops on the lower level and offices in the upper levels, it's not enough to cover the expenses of running the building or taking care of a major problem, such as the roof or cracked marble.

"We're the stewards of the building," Drasga said. "Financially we really need the money for the next big shoe that drops."

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to Indiana Courts

Not law, but history - Interactive Inauguration Maps

On this historic day, here are two useful guides to events, interactive maps, etc., from USA Today, and from the Wall Street Journal.

Posted by Marcia Oddi on Tuesday, January 20, 2009
Posted to General News

Monday, January 19, 2009

Environment - More on: Cleanup of Angola's former Dana site

Here is the background on the issuing involving cleanup of Angola's former Dana site. Today WLKI Angola reports:

A proposed clean up of the former Dana-Weatherhead site could begin to move forward tomorrow as both the Steuben County Commissioners and Angola City Council are scheduled to take up the matter. Both boards normally meet on the third Monday of the month but with today being the federal Martin Luther King holiday, the Commissioners and the City Council will hold their meetings tomorrow. County Commission Chair Mayo Sanders motioned for the county to commint $1 million to the clean up during a special meeting on January 7th but that motion died for lack of a second. Sanders is optimistic there will be a different outcome tomorrow. Although a sharp division was apparent when the Steuben County Council discussed the issue last week, Sanders thinks a majority of them will back the Commissioners if the funding commintment is approved. Meanwhile, the Angola City Council is scheduled to discuss funding the I.D.E.M. remediation plan for the site tomorrow night which could lead to a vote on the citys financial commintment for the clean up.

Posted by Marcia Oddi on Monday, January 19, 2009
Posted to Environment

Law - "Interest Rate Drop Has Dire Results for Legal Aid"

First there was the concern about the safety of attorney trust accounts in a time of bank failure - see ILB entries from Oct. 13, 2008 and Nov. 25, 2008.

Now comes the realization that the "Interest Rate Drop [on IOLTA accounts] Has Dire Results for Legal Aid" , as reported in this lengthy story by Erik Eckhom in today's NY Times. Some quotes:

BOSTON — Scores of legal aid societies that help poor people with noncriminal cases — like disputes over foreclosures, evictions and eligibility for unemployment benefits — are being forced to cut their staffs and services, even as requests for help have soared.

In an odd twist, the societies have been hit hard by the Federal Reserve’s steep reduction of its benchmark interest rate, which finally plunged last month to near zero.

The rate decline, though generally welcomed as a blow against the recession, has had an unplanned and severe effect on legal aid societies, which depend heavily on revenues that are tied to the federal funds rate. As recently as 2007, the rate was more than 5 percent and legal aid agencies reaped more than $200 million for their operations. * * *

Legal aid groups have long benefited from little-known programs that draw interest earned from short-term deposits that lawyers hold in trust for clients during, for example, real estate transactions or personal injury payouts. The interest is mainly donated to legal services for the poor.

But as the federal funds rate declined along with the number of real estate transactions, the payout has fallen precipitously. And beleaguered state governments are also curbing their aid. * * *

Over the last three decades, every state has adopted a program drawing interest from trust or escrow accounts. Called Interest on Lawyers’ Trust Accounts, or Iolta programs, they have been a godsend for struggling legal aid groups, providing $212 million in 2007, according to the American Bar Association.

But as a result of the collateral damage from the free-falling interest rate, the Massachusetts budget for civil legal services has been cut to $19 million this fiscal year, from $27 million; the Boston branch expects to lay off up to one-fifth of its lawyers and paralegals in coming months. People with legal troubles and little money, like Jim Vedrani, 53, of Amesbury, Mass., have found themselves on their own.

See also this ILB entry from Oct. 12, 2008, headed "Legal Aid closings in Fort Wayne; 50 year anniversary in Evansville."

Posted by Marcia Oddi on Monday, January 19, 2009
Posted to General Law Related

Ind. Gov't. - New Attorney General Greg Zoeller outlines plans

Patrick Guinane of the NW Indiana Times reports today on Attorney General Greg Zoeller's plans for his office, under the headline "State's top lawyer vows to push for transparency in government."

Posted by Marcia Oddi on Monday, January 19, 2009
Posted to Indiana Government

Ind. Decisions - "Gary as the last plaintiff standing among more than 30 cities and states that have sued the gun industry over the past decade"

Updating the ILB entries from Jan. 12 (here and here), Jon Murray of the Indianapolis Star today has an excellent analysis piece, headed "Move to let Gary gun-violence lawsuit proceed stirs debate: Some see landmark case; others call Gary suit unfounded." Some quotes:

One by one, local governments have filed lawsuits that try to hold firearms manufacturers responsible for gun violence on city streets.

And, one by one, the lawsuits have either been dismissed by courts or dropped. Until last week.

In what gun control advocates quickly hailed as a landmark decision, the Indiana Supreme Court ruled last week that a lawsuit filed by the city of Gary can proceed toward trial.

That leaves Gary as the last plaintiff standing among more than 30 cities and states that have sued the gun industry over the past decade -- and at the epicenter of a contentious debate.

Gary, a city of 96,000 with one of the nation's highest homicide rates, filed its lawsuit in 1999. It argues that gun manufacturers -- including Smith & Wesson, Beretta and Colt -- and several gun dealers are liable for gun violence because they readily supply handguns they know will reach criminals, juveniles and others forbidden from buying them, and cast a "willful blindness" toward a lucrative illegal trade. * * *

Most states -- including Indiana, in 2001 -- have passed laws that protect gun manufacturers from such liability, thwarting future suits. In addition, Congress passed a law in 2005 that also shields the gun industry from liability suits. * * *

Brian J. Siebel, an attorney with the Brady Center to Prevent Gun Violence's Legal Action Project and part of the legal team representing Gary, said the city will prove its case.

"The case was filed 10 years ago," Siebel said. "The nuisance is ongoing. There is a continued flow of illegal guns into the city."

Eleven of 16 original gun-makers and distributors remain in Gary's lawsuit; others have gone out of business or been purchased. At least two of six gun-dealer defendants have reached settlements over the years.

And one Lake County judge assigned to the case retired, while another died.

Many lawsuits backed by cities or states since New Orleans filed the first in 1998 have been dismissed by state and federal courts, often because of state laws providing immunity for the gun industry.

Still more failed after Congress' passage in 2005 of the federal shield law, the Protection of Lawful Commerce in Arms Act.

But the Indiana Court of Appeals made an important ruling in October 2007. The court, in a 3-0 decision, said that Gary's case could proceed, despite the federal shield law. The reason: Gary's public nuisance claims fell under an exception because it alleged violations of state laws applying to the sale and marketing of firearms.

The gun-makers appealed, but last week, the Indiana Supreme Court in effect rejected that appeal by declining to review the case. * * *

Still, there is the possibility that the Gary case will never go to trial. The gun-makers could petition for a U.S. Supreme Court review of the Indiana court rulings. Lawrence Greenwald, a Baltimore attorney representing Beretta, said no decision has been made.

Also, officials in New York, as well as crime victims in the Washington, D.C., case -- though not D.C. public officials -- have appeal petitions before the Supreme Court.

But retired Indiana University law school professor Henry Karlson said the chances of any of the three cases winning Supreme Court review are slight.

Posted by Marcia Oddi on Monday, January 19, 2009
Posted to Ind. Sup.Ct. Decisions

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

Updating this ILB entry from Dec. 31, 2008, Bryan Corbin of the Evansville Courier & Press reports today in a story that includes these quotes:

Although the governor of her own party did not want her to, state Rep. Suzanne Crouch has gone ahead with her plan to introduce a bill to halt temporarily the expansion of Indiana's new welfare eligibility program.

Crouch, a Republican from Evansville, last week filed House Bill 1691 to pause the administration's welfare modernization process from expanding to the 33 remaining counties it has not yet reached. * * *

The modernization program has been rolled out to 59 counties in stages, reaching Southwestern Indiana last May.

Since then, Crouch and other local legislators have been inundated with complaints from constituents and Evansville health care providers who say the new call center system loses critical documents, causes inordinate delays in enrolling patients, issues conflicting information and is hard for the elderly and disabled to navigate.

If passed, Crouch's bill would stop the Indiana Family and Social Services Administration from expanding the modernization to remaining counties until a committee of the Legislature reviews the rollout.

A Republican, Crouch repeatedly has said she supports the Daniels administration's modernization goals, but the sheer volume of complaints from constituents and hospitals indicates the system needs to be fixed before it's expanded further.

"The problem is we currently have systematic problems that need to be addressed; they need to be fixed," she said. * * *

When Crouch introduced her bill, a powerful House Democrat, Rep. Charlie Brown, D-Gary, signed on as co-author. If it passes in the House, Crouch's Republican colleague from Evansville, state Sen. Vaneta Becker, will be the bill's Senate sponsor. * * *

Constituents complain not only about the FSSA call center and Web-application system, but also about the remaining FSSA county offices, where clients encounter very long lines and long waits for assistance, the legislators said. "They just have to show up; there may be 100 people there. They may not get waited on that day; they may have to take off from work again and come again to try to get their kids signed up for Hoosier Healthwise (a state health care program for low-income people). That is not an efficient way to do business," Becker said. "Anyone in the business world would tell you that."

Posted by Marcia Oddi on Monday, January 19, 2009
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

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

This Tuesday, Jan.. 20th:

10:00 AM - Babe's Showclub, Jaba, Inc., and James B. Altman vs. Patrick and Lisa Lair - Appellants Babe's Showclub, Jaba, Inc., and James B. Altman appeal from the trial court's denial of their motion to dismiss the complaint for damages filed by appellees Patrick Lair and Lisa Lair. According to the complaint, Patrick, a police officer, responded to a complaint at Babe's Showclub and was assaulted by an underage male who had been consuming alcohol on the premises. The Lairs' complaint alleges that the appellants maintained a nuisance, failed to provide adequate security, and violated Indiana's dram shop laws and laws prohibiting the sale of alcohol to minors. The appellants filed a motion to dismiss the Lairs' complaint on the basis that Indiana's "fireman's rule" bars recovery for their claims. The trial court denied the motion and certified its order for interlocutory appeal. The Scheduled Panel Members are; Judges Robb, Crone and Brown. [Where: Indiana Court of Appeals Courtroom]

11:30 AM - Home Bank vs.US Bank National Association, assignee of Franchise Mortgage Acceptance Company - This is an appeal of a foreclosure action involving two adjacent parcels of land and an easement granting two separate rights-of-way and the right to place a sign on one of the parcels. The parties dispute, among other things, whether the U.S. Bank mortgage was properly executed and thus entitled to be recorded, and whether Home Bank received actual and/or constructive notice of the U.S. Bank mortgage prior to recording its easement. Both parties appeal the trial court's denial of their summary judgment motions. Home Bank appeals the trial court's granting of U.S. Bank's motion to dismiss without prejudice. The Court of Appeals has requested that the parties present oral argument solely on the issue of whether the order of dismissal without prejudice is a "final judgment" and thus appealable pursuant to Indiana Trial Rule 5(A). The Scheduled Panel Members are: Judges Robb, Crone and Brown. [Where: Indiana Court of Appeals Courtroom]

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

None scheduled.
_____________
* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here.

Posted by Marcia Oddi on Monday, January 19, 2009
Posted to Upcoming Oral Arguments

Sunday, January 18, 2009

Ind. Courts - Judicial Center's Legislative Update

Here is the Indiana Judicial Center's Legislative Update, current through Jan. 16th. This is a good way to keep on top of court bills, and bills impacting criminal and civil matters.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Courts in general

Environment - NIPSCO: Disposal of coal ash in NW Indiana safe

After the recent news of a massive coal ash spill in Tennessee, Gitte Laasby and Erik Potter of the Gary Post-Tribune report today on coal ash generation and handling in NW Indiana. According to the story, NIPSCO is the only coal ash generator. More:

A coal ash spill like the one that recently occurred in Tennessee couldn't happen in Northwest Indiana, according to NIPSCO.

Indiana disposed of nearly 2.3 million pounds of coal ash from 13 power plants in 2007, according to the U.S. Department of Energy. That's more than any other state in the nation. But because Northern Indiana Public Service Co. stores it differently and the typography is different, an incident like the one in Tennessee wouldn't happen here, NIPSCO said. * * *

"There's two key differences between TVA and NIPSCO, why that event would not occur with NIPSCO," said NIPSCO spokesman Nick Meyer. "They used what's called a wet-handling system. They store this fly ash in a pond or larger body of water. We handle it differently, what's called a dry-handling system. It eliminates the need for large impoundments."

At the Michigan City and Bailly generating stations, ash is stored in enclosed silos. When the ash needs to be transported, a truck backs into the silos and the ash is dumped into the truck, Meyer said.

The ash is delivered to a conditioning system at the Schahfer Generating Station in Wheatfield and mixed with water before it goes into NIPSCO's landfill there, which NIPSCO voluntarily lined and monitors.

"It's about as safe as you can get because it's lined and capped and it's got groundwater monitoring," Meyer said.

The U.S. Environmental Portection Agency concluded in 2006 that disposal of coal waste in ponds elevates cancer risk when metals leach into drinking water. Coal ash storage facilities are not federally regulated, only governed by the states. Several states, including Indiana, do not require liners and monitors. That became a subject of controversy locally and nationally eight years ago. NIPSCO used to store coal ash near its Michigan City plant. In the 1980s, ash ponds at NIPSCO's Michigan City generating station were overflowing with coal ash. About a million tons of the waste was moved to Brown's Yard 520 in the town of Pines for what was supposed to be temporary storage.

In 2000, chemicals including boron from the landfill were found in private wells at homes in the Pines at twice the safe level. There was concern about the contamination reaching groundwater. The site was designated a Superfund site and residents were supplied with municipal water.

Meyer said NIPSCO no longer stores fly ash at the site or at its Bailly plant, but transports it to the landfill in Wheatfield.

"Essentially, it's housed at this landfill, and also we use some of the ash that gets recycled into marketable products," Meyer said.

Dave Ellis, chairman of the Dunelands Group of the Hoosier Chapter of the Sierra Club, said he still wants to raise awareness of what can happen with coal waste.

"So much of our electricity in Indiana comes from burning coal. We may not see so many smokestacks here in Northwest Indiana, but there are many in the state and a lot are concentrated around the Ohio River," Ellis said.

"Regardless of anything, it's really producing a lot of a byproduct someone has to do something with.

Indeed, the AP list of Indiana power plants with coal ash ponds and the amount in tons stored, reproduced in this Jan. 9th ILB entry, does not include NIPSCO, but the AP story does report:
Records indicate that states storing the most coal ash in ponds are Indiana, Ohio, Kentucky, Georgia and Alabama. Indiana ranks at the top with 13 power plants storing 2,270,950 tons of coal ash in ponds.
See a list of ILB entries involving "coal ash" here.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Environment

Ind. Courts - "Old courthouse in Crown Point hit by money woes"

Kathleen Quilligan of the NWI Times writes today:

CROWN POINT | One of the city's most famous landmarks is having money problems.

The Lake Court House Foundation Inc., which runs the Old Lake County Courthouse on the square in downtown Crown Point, is operating on a deficit for the first time since the organization took control of the building in the 1970s, a foundation board member said.

Martha Wheeler, the foundation's second vice president, said the foundation's budget began operating in the red in the past few months, and the foundation would like to get back into the black.

"I don't know if it's a sign of the times or that people just don't understand what it takes to keep it going," Wheeler said.

She said for the past three months the foundation has been running at a deficit of $1,000 to $2,500 per month.

Wheeler said the foundation, which does receive taxpayer dollars, doesn't have the membership and number of bequests it has had in the past. While the courthouse has a steady income from renting shops on the lower level and offices in the upper levels, it's not enough to cover the expenses of running the building or taking care of a major problem should one arise. * * *

The courthouse was built in 1878 for $52,000 and served as the county courthouse for almost 100 years until the county outgrew the building in the 1970s and built the complex on North Main Street.

While there was money set aside for demolition of the Old Lake County Courthouse, a group of residents formed the nonprofit organization that saved the building. The demolition money was used to restore the building.

Here is a photo and more information.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Indiana Courts

Environment - "County right to expect more from IDEM"

Pick of the Chick Egg Farm, in St. Joseph County, which was the subject of a South Bend Tribune story summarized near the end of this ILB entry from Jan. 11th, if the focus of this strong editorial today in the South Bend Tribune that concludes:

Whichever point of view is valid, some facts are indisputable:

Anti-pollution laws should be enforced efficiently and consistently. Tolerating laxness, and thereby endangering the public, never is acceptable. Neither is allowing complaints to drag on for years without a resolution.

IDEM should be able to tell an offender precisely what is needed to remedy an environmental violation and should follow through in a timely manner. It also is important that county health officials have a role in the process and that they be in concurrence with the requirements and actions taken. IDEM should welcome a role in the process for county health departments.

Pick of the Chick has been around for a long time, but the expansion of CAFOs is a relatively new development in both Indiana and Michigan. State law must keep up with the mega-farm trend so that enforcement agencies have the manpower, knowledge and equipment required to get the job done.

Monitoring should be on-going and should include whatever testing and follow-through are needed — by both state and local officials — to make certain that the public is protected.

The St. Joseph County Health Department is to be commended for living up to its important watchdog role. In this case, it has kept an eye on both the alleged polluters and the state law enforcers. A county health department environmental manager cannot do IDEM's job for it. But he can publicly demand that the job be done. In this case that has meant that the people of St. Joseph County are better informed and, we hope, safer.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Environment

Environment - "CAFO regulation proposals will return to Indiana General Assembly in eight bills"

Pam Tharp has a long and comprehensive article today in the Richmond Paladium-Item that begins:

The battle over regulating concentrated animal feeding operations in Indiana has returned to the Indiana General Assembly for the third consecutive year.

The Indiana House will consider four CAFO-related bills in 2009 and the Indiana Senate has four. House Agriculture and Rural Development Committee Chairman Phil Pflum, D-Milton, said CAFO bills will get hearings this month in his committee, probably on the same day.

"We're going to give it a whirl again. I really think we need statewide legislation and statewide rules," Pflum said. "I've witnessed the struggles in other counties. (Lack of state rules) puts too much burden on county zoning boards and commissioners, who often don't have the legal support they need. I think we can grow the livestock industry, but we have to be careful where. It's about location."

House bills include requirements for "good character" for CAFO operators and a two-mile setback for CAFOs and smaller confined feeding operations from state parks and reservoirs. Other bills require the state to investigate the usefulness of anaerobic digesters to reduce odors from megalivestock farms and a property tax abatement for anaerobic digestors or odor control equipment.

Three CAFO bills filed in the Senate are assigned to the Committee on Energy and Environmental Affairs chaired by Sen. Beverly Gard, R-Indianapolis. Gard's bill's establishing a "good character" requirement to obtain a CAFO permit is scheduled for a hearing on Jan. 26. A second bill requires manure management plans to include procedures to minimize air emissions and establish air emission standards. A third bill authored by Richmond state Sen. Allen Paul asks for a three-year moratorium on new CAFOs so additional regulations can be written.

A sidebar to the story lists the bills, along with brief summaries:
House Bill 1074 -- Establishes good character disclosure requirements for CAFOs and CFOs; allows the Indiana Department of Environmental Management to review and act on disclosed information and applies to both original construction and modifications.

House Bill 1075 --Provides that after June 30, 2009 a person may not begin CAFO or CFO construction or enter into an agreement for manure application if any part of the area is within two miles of the boundary of a park, reservoir or other land or water under the jurisdiction of the Indiana Department of Natural Resources.

House Bill 1033 -- Requires the Department of Agriculture to conduct a statewide evaluation of livestock waste anaerobic digestion systems using the protocol developed by the U.S. Environmental Protection Agency AgSTAR Program. Also requires the state ag department to explore the use of anaerobic digestion systems to generate renewable energy as a development tool.

House Bill 1444 --Establishes a property tax abatement for anaerobic digestion equipment.

Senate Bill 217 -- Requires CFOs to include procedures for air emission minimization and water quality monitoring in the manure management plan and submit and implement an air emission minimization plan to reduce off-site impact and maximize nutrient recovery from manure storage and land application areas. Requires the water pollution control board to adopt rules with standards for those issues. Requires the state chemist to adopt rules for use of fertilizer material and the distribution and storage of bulk commercial fertilizers, including standards to protect the air and waters of the state.

Senate Bill 221 -- Establishes good character disclosure requirements for CFOs and CAFOs and allows IDEM to act on that information. Applies certain provisions of the act to pending confined feeding projects.

Senate Bill 50 -- Establishes a three-year moratorium on the construction of any new CAFOs in the state.

Senate Bill 419 -- Deals with the antidegradation of surface waters and prohibits the application of the rule to activities regulated by a federal wastewater permit, which CAFOs are required to have.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Environment

Ind. Gov't. - Still more on "Libraries are overwhelmed by unemployed filing for help"

Updating these ILB entries from Jan. 14th and Jan. 15th, the Fort Wayne Journal Gazette has an editorial today headlined "Library serving the jobless." Some quotes:

The length of the unemployment line is stretching all the way to local libraries. The increasing number of people needing access to Internet-equipped computers to apply for unemployment benefits is straining library resources. * * *

“We actually want people to file online,” said Kathleen Randolph, president and CEO of Partners for Workforce Solutions. “They can still file a paper claim, but it bogs down the system. If they file a paper claim, it can take up to three weeks to get payment.”

There is merit to having people apply online. Making the system more efficient and ensuring people get the unemployment benefits they deserve quickly is desirable. But state officials need to recognize the digital divide. Many people, especially those hardest hit by the economic downturn, do not have easy access to the Internet. And computer savvy is not a natural talent for everybody.

“We are finding the digital ability of the claimants is making it difficult. It is tricky to fill out these forms online,” Randolph acknowledged.

The mass of people swarming the libraries demonstrates the value of the Allen County Public Library and proves the importance of having Internet access available at libraries. It also illuminates another opportunity for improvement for the Indiana Department of Workforce Development.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Indiana Government

Ind. Law - This week at the General Assembly - Week 2

Now that the 2009 session is under way, the Evansville Courier & Press is resuming its weekly "Legislative Notebook" column that will normally appear on Sundays. A few quotes from Bryan Corbin's report:

Starting with ceremonial grandeur and ending with partisan bickering, the second week of the Indiana General Assembly's session could be a foretaste of what's ahead at the Statehouse.

Sworn into a second term Monday, Gov. Mitch Daniels laid out his legislative agenda Tuesday during his State of the State address to a joint session of the Legislature. Daniels urged lawmakers considering his two-year state budget proposal to pass a budget without dipping into $1.3 billion in reserves or raising taxes.

House Speaker Patrick Bauer, the overall leader of majority Indiana House Democrats, criticized what he called "applause lines" in the speech, saying the governor did not spell out a jobs program. It was an early salvo in a series of escalating exchanges during the week between the Democratic House leadership and the Republican administration. * * *

The Legislature's session began Jan. 7 and must adjourn by April 29, and several Statehouse media outlets have commented that the partisanship level seems heightened for this early in the session.

"I don't find anything new," Daniels said when asked if there was a new level of partisanship. "We've been under attack and criticism with no positive answers for the past four years. ... We take it in stride."

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Indiana Law

Ind. Gov't. - Keeping track of the legislative session

Lesley Stedman Weidenbener's column, Capitol Notebook, this Sunday is headed "It pays off to pay attention to session." She explains how to keep track of the General Assembly via computer. She ends the column:

Of course, for those of you who have read this column for some time, this information is nothing new. I can't resist recommending every session that you take advantage of these tools.

That's because the decisions made at the Statehouse affect your daily lives.

The General Assembly decides how much money your local schools receive and in many cases how they can spend it.

Lawmakers set income and sales tax rates. They write laws that regulate gambling and alcohol.

They determine what constitutes a criminal act and what doesn't. They set ranges that guide judges in sentencing. And they fund prisons.

So paying attention is crucial.

Of course, that doesn't mean you have to tune in to the Statehouse every day. But choose the things that are most important to you and track them. And if you have any questions about how to do it, just e-mail me. I'll be glad to help.

Posted by Marcia Oddi on Sunday, January 18, 2009
Posted to Indiana Government | Indiana Law

Saturday, January 17, 2009

Ind. Gov't. - Still more on "Public records not released from Jeffersonville's Clerk-Treasurer's Office"

On August 10th, the David A. Mann of the Jeffersonville Evening News & Tribune had a story about a public records records complaint against the city’s Clerk-Treasurer’s Office, alleging denial of public records -- the records being statements for the Clerk-Treasurer’s Office’s credit card. (See ILB entries here.)

Yesterday evening, Mr. Mann had this lengthy story, which is much too complex to summarize. It is headed "Audit findings sent to Clark County prosecutor: State audit shows thousands spent by clerk-treasurer for personal matters."

A story today by Ben Zion Hershberg of the Louisville Courier Journal reports:

A state audit that questioned Jeffersonville Clerk-Treasurer Peggy Wilder's use of two city credit cards for personal expenses has been sent to the Clark County prosecutor's office.

The Indiana State Board of Accounts audit cited more than $85,000 in personal expenses and fees since 2000. Personal charges are not allowed on city credit cards.

Charles Pride, office manager for the Board of Accounts, said the agency sent the audit yesterday to the local prosecutor "to review for criminal prosecution."

Wilder, who did not return calls seeking comment yesterday, acknowledged Thursday that she had made "a serious error in judgment" in using the cards but that she didn't do anything illegal and that all the charges and fees had been repaid. * * *

The audit said Peggy Wilder also obtained a $2,687 salary advance in late 2006 even though officials in a position like hers aren't allowed to receive such advances under state law. The audit said she also didn't have a required surety bond or coverage from the city's crime-insurance policy from January 2004 until August 2007.

Wilder said Thursday that she hadn't been aware of the law saying she wasn't eligible for a salary advance. She said she used the advance to attend a National League of Cities convention. She also said she thought the surety bond had remained in effect from her first term.

Wilder is now in her third term as clerk-treasurer.

Posted by Marcia Oddi on Saturday, January 17, 2009
Posted to Indiana Government

Ind. Courts - Two forfeiture rulings in Delaware County courts

In the long-running DTF dispute in Delaware County (see ILB list of stories here), Rick Yencer reports today in the Muncie Star-Press in a story that begins:

Delaware County Prosecutor Mark McKinney now has 30 days to repay $168,092 in cash assets and attorney fees collected from drug forfeiture cases where confidential agreements were used without a court order, in what Circuit Court 2 Judge Richard Dailey said was a violation of state law.

Likewise, Deputy Prosecutor Eric Hoffman faces a $17,164 liability from a reimbursement order issued Thursday by Dailey, who found both attorneys constituted "a fraud on the court" by taking a portion of drug dealers' assets and attorney fees without judicial scrutiny.

"At the end of the day, civil forfeiture counsel McKinney and Hoffman had control of forfeited assets and directed where they went," Dailey wrote. "These two attorneys were willing to use the legitimacy and authority of the judicial system in pursuit of civil drug forfeitures, but they were unwilling to submit their actions in these agreements to judicial scrutiny."

Based on evidence at a December hearing on nearly 40 forfeiture cases, Dailey also found that McKinney and Hoffman were not entitled to attorney fees that were included in the reimbursement order, giving both 30 days to repay the money to the county clerk.

Dailey also found the attorneys could be liable to local and state governments if forfeited monies were improperly held from government accounts. State law requires court adjudication of forfeitures with money going to local and state government and school coffers. However, testimony at proceedings before Dailey indicated forfeited funds were instead deposited into Muncie-Delaware County Drug Task Force and city police accounts.

A second Star-Press story, this one reported by Seth Slabaugh, begins:
Special Prosecutor Kit Crane has obtained a court judgment awarding him possession of video gambling defendant John Neal's rural Yorktown house, $1.7 million in cash, 19 cars and trucks, 21 taverns, a checking account and other assets.

Special Judge Steven Nation ruled that Neal headed a criminal enterprise that operated in the taverns and generated millions of dollars from video gambling machines known as Cherry Masters.

The assets will be liquidated, and the proceeds will be divided between the law enforcement agencies that brought the latest criminal charges against Neal, said Indianapolis attorney Greg Garrison, who represents Crane in a racketeering lawsuit against Neal.

Those agencies are the Indiana Alcohol and Tobacco Commission, the Anderson Police Department and the Madison County prosecutor's office.

Garrison's law firm will receive 30 percent of the proceeds for representing Crane in the lawsuit.

Posted by Marcia Oddi on Saturday, January 17, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Attorney jailed again in fatal crash case" [Updated]

Updating this most recent entry in the ILB, from Sept. 23, 2008, quoting a story which ended:

Charges were filed after the death of Jimmy R. Cash, 46, in a May 2007 crash. Record had been drinking at a strip club just before the wreck, police said. He now practices law in Evansville.
Jon Murray of the Indianapolis Star reports today:
A former state attorney facing pending charges in a fatal drunken driving crash was sent back to Marion County Jail this afternoon for consuming alcohol, violating the conditions of his release.

Last month, a private monitoring company in Evansville, where Terry J. Record now lives, recorded alcohol on his breath during one of three daily remote tests from his home.

Record had been out of jail since he posted $10,000 bond in May 2007, soon after the crash in Indianapolis that killed Jimmy R. Cash, 46. Record had been drinking at a strip club before he ran a red light at Southeastern Avenue and Pleasant Run Parkway.

During a hearing this afternoon in Marion Superior Court, Record admitted to the December alcohol violation. He said family-related stress at the time didn't excuse drinking roughly three alcoholic drinks.

Pro Tem Judge Mark Jones revoked his bond and said he would revisit the decision Jan. 27. Record's trial is set for Feb. 9 on drunken driving and reckless homicide charges.

[Updated 1/20/09] See also this story today from the Evansville Curier & Press,

Posted by Marcia Oddi on Saturday, January 17, 2009
Posted to Indiana Courts

Friday, January 16, 2009

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Joel Stoffel v. United Farm Family Mutual Insurance Co. (NFP) - "There is a genuine issue of material fact as to whether United Farm waived its right to enforce the conditional sale policy exclusion. We reverse the granting of summary judgment to United Farm. Reversed."

In In the Matter of the Commitment of T.G. v. St. Vincent Hospital and Health Care Center, et al (NFP), a 5-page opinion, Sr. Judge Sullivan writes:

The court ordered the involuntary commitment of T.G. She contends the evidence is insufficient to meet the necessary clear and convincing standard of proof that she is “gravely disabled.” * * *

Dr. Mishra expressed concern that without the order for commitment in place, T.G. would stop taking her medications, stop follow-up care and not have a place to live. He believed that if that occurred, her mental condition would rapidly deteriorate and she would come to harm.

From the foregoing evidence, we conclude that a reasonable person might well determine that T.G. was gravely disabled within the meaning of the statute.

T.G.’s appellate attorneys have presented a capable argument opposing her commitment. The argument relies, however, on evidence and inferences opposing the court’s order. It demonstrates no more than that a different conclusion might also have been reasonable.

It follows that the decision of the trial court should be affirmed.

NFP criminal opinions today (5):

Philip D. Knott v. State of Indiana (NFP)

Walter L. Hoskin v. State of Indiana (NFP)

Matthew J. Rambo v. State of Indiana (NFP)

Michael Wilson v. State of Indiana (NFP)

Johnny Lee Braster, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 16, 2009
Posted to Ind. App.Ct. Decisions

Courts - Two SCOTUS rulings on Indiana cases cited in recent decisions

"Psychotic Defendant, Though Competent to Stand Trial, Can't Be His Own Lawyer" is the headline to this story by Henry Gottlieb in the New Jersey Law Journal. Some quotes:

Mentally ill criminal defendants who are found to be competent to stand trial don't automatically have the right to act as their own counsel, a New Jersey appeals court held Wednesday.

The ruling, made possible by a U.S. Supreme Court decision last year that gives state courts discretion to decide such issues, upheld a trial judge who assigned a lawyer to represent an accused thief who proclaimed he was the acolyte of an ancient civilization's princess. * * *

Last June in Edwards v. Indiana, the U.S. Supreme Court ruled that precedents affirming a Sixth Amendment right to self-representation apply only when the defendant "voluntarily and intelligently elects to do so" and that states can restrict the right when an individual's mental competency is questionable.

The Court also said a defendant must be mentally ill and not merely difficult to handle or disruptive to be deprived of the right of self-representation, a condition repeated by the New Jersey judges in Wednesday's ruling.

"Georgia’s voter ID law upheld in federal appeals court ruling" is the headline to this story by Bill Rankin of The Atlanta Journal-Constitution. Some quotes:
The federal appeals court in Atlanta on Wednesday upheld Georgia’s voter identification law, saying the burden of presenting a government-issued photo ID at the polls is trumped by the need to safeguard the integrity of elections.

“The insignificant burden imposed by the Georgia statute is outweighed by the interests in detecting and deterring voter fraud,” Judge Bill Pryor wrote for a unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals.

The decision dismisses a lawsuit filed by two elderly voters, one in Rome and another in Screven County, the NAACP and other civil rights groups. * * *

On Wednesday, the 11th Circuit relied heavily on a U.S. Supreme Court decision last April upholding a similar voter ID law in Indiana. [See this ILB entry re Crawford v. Marion County Election Board.]

In that ruling, the high court stated, “There is no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters.”

Posted by Marcia Oddi on Friday, January 16, 2009
Posted to Courts in general

Ind. Gov't. - Editorial supports teeth for Open Records Law

From an editorial today in the Evansville Courier & Press:

Indiana state Sen. Beverly Gard, a Republican from Greenfield who has long championed the cause of open government, will try again this year to put teeth in the state's public access law.

If every Indiana lawmaker felt as Gard does about the importance of making government records easily available to all citizens of the state, we would have far fewer government doors shut in the faces of Hoosiers.

It was Gard and, from this area, Rep. Russ Stilwell, D-Boonville, who led a successful campaign in 2007 to limit the ability of public officials to hold "serial meetings." That was a shameful tactic used by some officials to legally prevent Indiana residents from attending some meetings of their government boards. * * *

Gard has introduced Senate Bill 232 in the current legislative session. It has been referred to the Committee on Local Government. It would allow a court to assess a civil penalty of up to $1,000 against public officials or employees or the agency itself for refusing to open records or meetings to the public.

Posted by Marcia Oddi on Friday, January 16, 2009
Posted to Indiana Government

Environment - "Tennessee coal ash accident should be lesson to Indiana"

So reads the headline to this abbreviated editorial today in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Friday, January 16, 2009
Posted to Environment

Ind. Courts - Stiil more on Vanderburgh Little Hatch Act cases

Thomas B. Langhorne reports today in the Evansville Courier & Press in a lengthy story that begins:

A ruling on whether the local Republican Party owes a Democratic officeholder thousands of dollars in legal fees will hinge on arguments about the party's intentions.

After a hearing in Vanderburgh Circuit Court on Thursday, County Councilman Ed Bassemier's attorney said Bassemier is entitled to be reimbursed by the GOP for the approximately $12,000 he spent defending himself against a lawsuit Republicans ultimately dropped.

Bassemier had said he is owed $13,000, but attorney Robert W. Rock said he may claim reimbursement only for expenses incurred before the GOP filed to drop its suit.

Rock said that the Republican lawsuit, which alleged Bassemier was ineligible to seek office in 2008 under the Little Hatch Act, was supported by a "sloppy prefiling investigation" that failed to yield solid evidence.

"Ed feels he's being punished for this guy (GOP Chairman Nick Hermann, an attorney) not doing his homework," Rock said.

But Hermann said the party's lawsuit was filed in a good-faith effort to ferret out the truth and not to harass Bassemier.

"We had facts to back it up," Hermann said.

The Little Hatch Act limits the political activities of people whose jobs are funded at least in part by federal money. Bassemier is safety director at Evansville Regional Airport, which receives federal funds.

Hermann said earlier this month that the GOP dropped its lawsuit against Bassemier because he discovered that federal funds received by the airport are "loosely connected" to Bassemier and not "a substantial part of his job."

On Thursday, Hermann said the GOP had evidence that could have been explored had the party not decided to focus its efforts on pursuing a similar but stronger case against Democratic County Commissioner Steve Melcher.

For background, see this list of ILB entries.

Posted by Marcia Oddi on Friday, January 16, 2009
Posted to Indiana Courts

Thursday, January 15, 2009

Ind. Decisions - Zyprexa Documents [Updated]

Here is one of the Zyprexa diocuments, via Findlaw. This is "Eli Lilly's Guilty Plea Agreement," which totals 17 pages, including exhibits. Here is a second link to the same docs.

This does not seem to be the document described in this earlier ILB entry today:

The settlement is detailed in a 37-page Settlement Agreement, as well as in a Corporate Integrity Agreement executed by Lilly and the Office of Inspector General of the Department of Health and Human Services.

United States of America ex rel Robert Rudolph, et al. v. Eli Lilly & Company, Civil Action No. 03-943 (E.D. Pa.)

[Updated 1/16/09] Here is comprehensive coverage from Shannon P. Duffy of The Legal Intelligencer.

[Updated 1/17/9] Here is a story from the New Albany News and Tribune, headed "Attorney General comes to Clarksville to announce major settlement."

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Courts in general

Ind. Decisions - Some opinions not available [Updated]

I've received this note from Kathryn Dolan, Indiana Supreme Court Public Information Officer:

Thought you may want to know there is a technical problem with viewing opinions older than 7 days. Currently, they are not accessible online. We are of course working on the problem.
[Updated 1/16/09] I've just checked and this problem appears to be resolved.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Indiana Courts

Ind. Courts - Senate Judiciary committee reassigns Court bills during hearing

Kelly Lynch of the Martinsville Reporter-Times reports today:

The Senate Judiciary committee spent much of its Wednesday morning meeting sending bills to the Appropriations committee, because the bills themselves will likely cost money.

The committee reassigned a total of four bills, by unanimous votes, during the 90-minute meeting.

One of those four was a proposal that creates a sixth Court of Appeals district. [SB 35] The proposed district covers the entire state and would allow the court to take more time on each case.

John Baker, chief judge of the Court of Appeals, cited the importance of a 100 percent clearance rate and said he believes an additional district will bring better outcomes for cases, and the court could continue its outreach program “Appeals on Wheels.” The program allows schools across the state to host a real-life court case.

It’s unlikely to pass because the new district comes with a price tag of $2.2 million, which would come from the court’s budget.

Committee Chair Richard Bray, R-Martinsville, said he was “not optimistic about it happening this year.”

The committee unanimously reassigned the bill to the Senate Appropriations committee.

The committee also reassigned a proposal that would increase automated record keeping fees from $7 to $10. [SB 121]

The extra money would help with a more aggressive installment of a case management system, a way to program the system, and substantial additional projects, said State Supreme Court Justice Frank Sullivan, Jr.

The case management system, Odyssey, would track cases and make it easier for those involved to get a hold of information, he said.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Indiana Courts

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

For publication opinions today (1):

Mead Johnson & Company v. Kenco Group - "Third-Party Plantiff/Appellant Mead Johnson & Company appeals the trial court’s grant of summary judgment in favor of Third-Party Defendant/Appellee Kenco Group, Inc. We reverse and remand with instructions. "

NFP civil opinions today (2):

Shalonda D. Smith v. Madison County Office of Family and Children (NFP) - "There is clear and convincing evidence to support the trial court’s finding that the conditions resulting in the children’s removal from the home would not be remedied, that there is an adequate plan for the care of the children, and that termination of Smith’s parental rights is in the children’s best interests. We affirm. "

Steve Freedenberg v. Dawn Basham (NFP) - "Steve Freedenberg appeals the issuance of a protective order. * * * Freedenberg completely failed to comply with the Indiana Appellate Rules. We dismiss."

NFP criminal opinions today (7):

Todd Ross v. State of Indiana (NFP)

Gregory A. Geyer v. State of Indiana (NFP)

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

James Ray Burgess, Jr. v. State of Indiana (NFP)

Adell Simmons v. State of Indiana (NFP)

Ray Chaney v. State of Indiana (NFP)

Danissa Moss v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Ind. App.Ct. Decisions

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

In a 5-page Per Curium opinion today, the panel affirms SD Ind. Chief Judge Hamilton's decision in U.S. v. Derrik Hagerman and Wabash Environmental Technologies.

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

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Still more on "Record-Setting Zyprexa Settlement

A reader has sent this note re the ILB entry posted earlier today:

The Star article calls it a whistleblower case. Doesn’t the whistleblower in a federal case normally get some percentage of the settlement? Do we know who that is?
Well, yes we do. The answer is in a press release put out by plaintiffs' attorney Stephen A. Sheller, headlined "Philadelphia Attorney Stephen Sheller's Whistleblower Clients Help Government Recover $1.4 Billion Record Settlement and Criminal Fine in Eli Lilly & Company Zyprexa(R) Marketing Case: Lead Attorney Filed Complaint in 2003 Representing Six Whistleblowers." Some quotes:
Lilly will pay more than $1.4 billion for its illegal off-label marketing of the antipsychotic drug, the U.S. Attorney's Office for the Eastern District of Pennsylvania announced. Zyprexa is Lilly's top-selling drug with worldwide sales of nearly $40 billion since its approval in 1996.

In today's settlement, Lilly will pay $800 million in civil penalties and plead guilty to criminal charges, paying an additional $600 million fine. The six whistleblowers who brought the Complaint against the drug company will share in approximately 18 percent of the federal and qualifying states' recoveries, Sheller said.

Related complaints filed by other law firms in 2005, 2006 and 2007 were ultimately consolidated into Sheller's first-filed Complaint. * * *

The whistleblowers represented by Sheller, two with 27 or more years' service at Lilly, expressed concern through proper channels about Lilly's improper marketing practices. All six whistleblowers were eventually fired or forced to resign. One sales representative, who also is a pharmacist, contacted the company hotline regarding unethical sales practices but received no response, according to the Complaint. * * *

The settlement is detailed in a 37-page Settlement Agreement, as well as in a Corporate Integrity Agreement executed by Lilly and the Office of Inspector General of the Department of Health and Human Services.

United States of America ex rel Robert Rudolph, et al. v. Eli Lilly & Company, Civil Action No. 03-943 (E.D. Pa.)

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Courts in general

Environment - A new environmental rule review board to ensure "no more stringent" rules

This would be SB 79, which the ILB wrote about as the second item in this entry Jan. 11th. The authors are Senators Kruse and Mishler. The Gary Post-Tribune has this editorial against the bill today.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Environment

Ind. Decisions - COA upholds sentencing in 2007 murder, feticide

Lydia X. McCoy of the Evansville Courier & Press reports today on the COA's NFP decision yesterday in the case of Preston Taylor v. State of Indiana. The story begins:

The Indiana Court of Appeals has upheld the 66-year sentence of 26-year-old Preston Taylor, who was imprisoned for the murder of Brooke Balbach and her fetus.

In a decision filed Wednesday, the court ruled that the sentencing, given in June by Warrick County Superior Court Judge Keith Meier, was not inappropriate and the judge did not abuse his discretion in determining it.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - A report on yesterday's annual State of the Judiciary address

See yesterday's ILB entry for links to the video and text. Today Eric Bradner of the Evansville Couirer & Press has a long story that includes:

Indiana Chief Justice Randall Shepard said the fallout of the economic downturn shows in the state's courts, and he described steps the state's judicial branch is taking to do more with less.

During his annual State of the Judiciary speech Wednesday, Shepard, who has been chief justice for 22 years, said the judiciary has approached the recession as an opportunity to streamline and cut costs while providing more efficient services.

"The courtroom was thought of as a place of relative detachment from the hubbub in the rest of life," Shepard told a joint session of the Legislature. "In fact, the work courts do is intimately connected to all of society." * * *

Rep. Trent Van Haaften, D-Mount Vernon, an attorney and former Posey County prosecutor, called Shepard's speech timely.

"I was intrigued by the approach he took this year in terms of addressing how courts are impacted by changes in the economy — just like families, just like a Legislature, just like governors are — in terms of the approach they have to take to their jobs," Van Haaften said.

In the past, Shepard has used his State of the Judiciary speech as an opportunity to spell out new proposals for the state's court system. This year was a significant departure.

"He didn't really pitch any new ideas," Van Haaften said. "I think it was more of a situation of recognizing that as a government, we have to batten down the hatches, if you will."

Rep. Ralph Foley, R-Martinsville, an attorney and former deputy prosecutor, echoed those sentiments after Shepard's speech.

"Under this chief justice, the judiciary has always been responsive and proactive to meeting the issues of the day," Foley said.

Foley noted how far-reaching the recession's effects have become and said evidence of the economic downturn is clear in the courtroom.

"We are seeing defendants who never, never would have been likely to commit crime. We are seeing the impact on marriages and the stress that pulls them apart and having to find out how to provide for the children of those marriages. We are seeing it in the rise of bankruptcy, the loss of a home, the loss of a job and the difficulties of foreclosure," Foley said. "And the judiciary is responding the best way that they can."

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Indiana Courts

Ind. Decisions - More on "Record-Setting Zyprexa Settlement Could Come Tomorrow"

Updating yesterday's ILB entry, John Russell has this report today in the Indianapolis Star. It begins:

Hoping to end one of the most difficult and embarrassing chapters in its history, Eli Lilly and Co. said this morning it has reached a $1.4 billion settlement with federal authorities over the marketing of its top-selling drug, Zyprexa.

The fine is one of the largest on record for any federal "whistle-blower" lawsuit. The settlement resolves a five-year investigation by federal prosecutors.

Such an agreement was widely expected.

Three months ago, Lilly said it was in "advanced discussions" with the U.S. Attorney's office for the Eastern District of Pennsylvania and recorded a charge of $1.4 billion against third-quarter earnings connected to a possible resolution.

As part of the deal, the Indianapolis drugmaker has agreed to plead guilty to one misdemeanor for the off-label promotion of Zyprexa for treatment of dementia, including in Alzheimer's patients, although the drug is not approved for such uses.

Zyprexa, a powerful anti-psychotic medication launched in 1996, is approved only for schizophrenia and bipolar disorder.

Under the settlement, no individual is charged with a criminal offense, meaning no Lilly officials will face prison time.

The huge fine is intended to punish the drugmaker for excesses in marketing and promotion.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Courts in general

Ind. Courts - Yet more on "Veolia accused of failing to read meters regularly and overestimating usage"

The Indianapolis Star today has an updated version of Jon Murray's story from yesterday afternoon, that begins:

A group of Indianapolis waterworks customers is considering suing the city after a judge threw out its overbilling lawsuit against the utility's private manager.
A side-bar to the story provides this link to the complaint and court filings.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on "Libraries are overwhelmed by unemployed filing for help"

Updating yesterday's ILB entry, for which I wrote an apparently prescient lead-in, today the Wall Street Journal has a front-page story by Jim Carlton headed "Folks Are Flocking to the Library, a Cozy Place to Look for a Job: Books, Computers and Wi-Fi Are Free, But Staffs Are Stressed by Crowds, Cutbacks." Some quotes:

A few years ago, public libraries were being written off as goners. The Internet had made them irrelevant, the argument went. But libraries across the country are reporting jumps in attendance of as much as 65% over the past year, as newly unemployed people flock to branches to fill out résumés and scan ads for job listings. * * *

This isn't the first time library attendance has spiked in a downturn. The 1987 and 2001 recessions saw similar jumps, librarians say. But few people thought that libraries would again be in such favor after so much information flooded the Web.

One big draw: Most libraries have put in free computer and Wi-Fi service. And they've begun stocking DVDs and videogames. With the recession weighing on them, "people recognize what a great value the public library is," says Jim Rettig, president of the American Library Association in Chicago.

Librarians are turning into job counselors -- and even social workers -- as they have to deal with a sometimes-desperate new class of patrons. "They are frustrated, overwhelmed and thought they would not be job hunting again in their lives," says Jan Perrier, head of reference and adult services at the Roxbury Public Library in Succasunna, N.J. "I had one woman just so overwhelmed she sat in front of the PC and cried." * * *

The sheer numbers of jobless visitors are overwhelming some libraries at a time of funding cuts by cash-strapped local agencies. The library in Winter Park, Fla., reports a 25% increase in checkouts of its books and other materials over the past 15 months, even as its budget for stocking new items has been cut 12%.

Some libraries are cutting their hours, reducing staff or even being closed altogether because of budget problems. The Schenectady County Public Library in Schenectady, N.Y., says it has had no money to replace four librarians who have left in the past two years. "As a result, we recently found that it is taking up to five days to reshelf books, as just one tiny example of the impact," says Karen Bradley, a reference librarian there.

The Randolph County library in North Carolina can't afford to replace those rugs: "We are just going to have to live with the worn carpet for now," says Suzanne Tate, the library's director. An average of 230 people a day line up to use the library's 27 computers. To help manage the traffic, the library has taken to bumping users off if they try to stay on for more than the one-hour limit.

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Indiana Government

Law - Two SCOTUS rulings yesterday generate much news coverage

Yesterday's SCOTUS decisions in Herring V. U.S. and Oregon v. Ice (earlier ILB entry here) are the subject of a number of stories today.

Adam Liptak writes in the NY Times:

The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.

The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court’s commitment to the rule was fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

"High court OKs using evidence from search arising from error," is the headline to

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

Justice Ruth Bader Ginsburg, writing for the dissenters, argued for “a more majestic conception” of the exclusionary rule, and a more categorical one.

The rule requires more than a cost-benefit calculus to deter police misconduct, Justice Ginsburg wrote. It also protects defendants’ rights, she said, and prevents judicial complicity in “official lawlessness.” * * *

The decision in the case, Herring v. United States, No. 07-513, may have broad consequences, said Craig M. Bradley, a law professor at Indiana University.

“It may well be,” Professor Bradley said, “that courts will take this as a green light to ignore police negligence all over the place.” * * *

A second case, about the role of the jury in sentencing decisions, was also decided Wednesday by a 5-to-4 vote, but it had a less predictable lineup.

That decision marked either a pause or a stopping point in a judicial march that began with the court’s 2000 decision in Apprendi v. New Jersey that the Constitution bars judges from making factual findings leading to increased sentences.

The question in the new case, Oregon v. Ice, No. 07-901, was whether the requirement established in Apprendi applied to the decision whether a defendant convicted of multiple crimes must serve consecutive or concurrent sentences if the harsher punishment required a judge to find facts not determined by the jury.

Justice Ginsburg, joined by Justices Stevens, Kennedy, Breyer and Alito, wrote that the Apprendi rule did not apply to that situation “in light of historical practice and the authority of the states over the administration of their criminal justice systems.”

It was undisputed in the case that some state systems that give judges discretion on this point are constitutional, including those in which judges have complete freedom and those in which they are allowed to opt for more lenient concurrent sentences.

The system used in Oregon, however, introduced an additional element in allowing judges to impose harsher sentences. The Oregon law required judges wishing to impose consecutive sentences in some cases to make factual findings about, for instance, the defendant’s “willingness to commit more than one criminal offense,” before imposing the longer prison terms.

The Herring decision is the subject of a lengthy story today in the Indianapolis Star, by Vic Ryckaert. Some quotes:
The Supreme Court ruled Wednesday that evidence from an illegal search can be used if a police officer made an innocent mistake, a decision that drew mixed reviews from local defense attorneys and prosecutors.

"A little bit here and a little bit there, and at the end of the day you have no Fourth Amendment right," which bans unreasonable searches and seizures, said Monica Foster, who has represented defendants in many high-profile death penalty cases.

But local prosecutors say the ruling strengthens the long-held principle that well-meaning police officers should not be punished when acting in good faith on bad information.

"It protects officers who are relying on information they should be allowed to rely upon, and they are acting reasonably," Hamilton County Prosecutor Sonia Leerkamp said. * * *

Henry Karlson, professor emeritus at the Indiana University School of Law-Indianapolis, said the ruling could lead to the demise of the exclusionary rule.

"I think we're going to see, at least at the federal level, an evolutionary process where the exclusionary rule is only applied to egregious and intentional violations of the Fourth Amendment," said Karlson, who has taught classes in evidence and criminal procedure. "That is the direction the five members of the court are moving."

Foster said the ruling increases the burden on defense attorneys who now must show that officers were not acting in good faith when they make an arrest.

Tom Goldstein of SCOTUSBlog has a long entry headed "The Surpassing Significance of Herring."

A story headed "High court OKs using evidence from search arising from error", reported by Joan Biskupic of USA Today, includes this quote:

The four liberal justices — Ruth Bader Ginsburg, John Paul Stevens, David Souter and Stephen Breyer — dissented. They said that because the search violated the Fourth Amendment's protection against unreasonable searches and seizures, the evidence should have been excluded. "The most serious impact of the court's holding will be on innocent persons wrongfully arrested based on erroneous information carelessly maintained in a computer database," Ginsburg wrote for the dissenters.

She cited findings from the Electronic Privacy Information Center that government databases are rife with errors.

The Roberts majority focused on the societal costs of excluding drugs and other evidence seized. The court enhanced officers' ability to use evidence by arguing that an unlawful arrest was not reckless or deliberate.

A warrant clerk in Coffee County, Ala., mistakenly told a police investigator that a warrant from a nearby county was out for Bennie Dean Herring, who had driven to the Coffee County Sheriff's Department to get something from his impounded truck. The Dale County computer error was quickly discovered. But by the time the warrant clerk alerted the police investigator, Herring had been arrested and found with an illegal pistol and with methamphetamine in his pocket.

After Herring was indicted on federal gun and drug possession charges, he argued the evidence could not be used against him because the arrest was illegal. The Fourth Amendment requires police to have a warrant or probable cause to make an arrest.

Lower U.S. courts rejected his claim, and the Supreme Court affirmed. Like the lower courts, the Roberts majority said the mistake arose from negligence rather than a deliberate effort to deprive Herring of his rights.

A "friend of the court" brief from the Electronic Privacy Information Center said, "Increasingly, law enforcement officials and other government employees are relying on government and commercial databases full of mistakes that are well-documented but rarely corrected."

Stanford University law professor Jeffrey Fisher, who represented Herring, said the court's test is difficult because a defendant would be unlikely to show negligence in computerized records without doing an audit.

Robert Barnes of the Washington Post has this report, headed "Evidence Is Valid, Despite Police Error."

Posted by Marcia Oddi on Thursday, January 15, 2009
Posted to Courts in general

Wednesday, January 14, 2009

Ind. Courts - Still more on "Veolia accused of failing to read meters regularly and overestimating usage"

Updating this Dec. 16, 2008 ILB entry, Jon Murray of the Indianapolis Star reports this afternoon under the headline "Judge dismisses suit over estimated water bills." From the story:

A Marion County judge has dismissed a lawsuit by Indianapolis waterworks customers alleging the utility's private manager overbilled them and failed to read meters frequently enough.

The order, issued Tuesday, does not address the factual claims of the suit but is based on legal arguments over whether customers have a right to sue Veolia Water Indianapolis over those issues. Veolia's attorneys argued in court last month that its 2002 management agreement with the city's Department of Waterworks didn't allow third parties, including customers, to intervene.

Attorney Peter Kovacs, who filed the suit in April, said disappointment with the ruling "does not diminish our resolve to obtain relief for people." Among options to consider, he said, are an appeal of the ruling or amending the suit, perhaps to bring action directly against the city.

Marion Superior Court Judge Gerald Zore's three-sentence order does not cite which arguments he found compelling.

Veolia had based its motion to dismiss largely on the claim that the city of Indianapolis was its only actual customer, since the city owns the waterworks.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Record-Setting Zyprexa Settlement Could Come Tomorrow"

Updating earlier ILB entries re Lilly's Zyprexa, the WSJ Law Blog has this entry, referencing this NYT report today by Gardiner Harris that begins:

Eli Lilly, the drug company, is expected to agree as soon as Thursday to pay $1.4 billion to settle criminal and civil charges that it illegally marketed its blockbuster antipsychotic drug Zyprexa for unauthorized use in patients particularly vulnerable to its risky side effects.

The amount of the settlement is a record sum for so-called corporate whistle-blower cases, which are federal lawsuits prompted by tips from company employees or former employees. Details of the agreement were provided by people involved in the negotiations.

Among the charges, Lilly has been accused of a scheme stretching for years to persuade doctors to prescribe Zyprexa to two categories of patients — children and the elderly — for whom the drug was not federally approved and in whom its use was especially risky.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Courts in general

Courts - SCOTUS expands judges’ sentencing powers

Lyle Denniston reports today in SCOTUSBlog, in an entry that begins:

Dividing 5-4, the Supreme Court ruled on Wednesday that it does not violate the Constitution for a judge to impose consecutive sentences based on facts that were not found by the jury, but by the judge. The Court thus refused to extend the line of its cases on the Sixth Amendment jury trial right to limit judges’ discretion to require that sentences be served separately rather than simultaneously. Thus, a string of decisions that began with Apprendi v. New Jersey in 2000 is limited to sentencing for single crimes, not to the arrangement for punishing multiple offenses.
The case is Oregon v. Ice.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Courts in general

Ind. Courts - State of the Judiciary Address today at 2 PM [Updated]

Here is the news release. It includes a link to watch the event live.

[Updated] Here is the text of Chief Justice Shepard's address.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Indiana Courts

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

For publication opinions today (4):

Juan I. Olvera v. State of Indiana - "Juan I. Olvera appeals the denial of his petition for post-conviction relief. We affirm in part, reverse in part and remand with instructions. Issue. Whether the post-conviction court erred in denying Olvera’s petition."

Marques Lewis v. State of Indiana - "Marques Lewis appeals the trial court‟s sentencing order, which did not award him credit time for pretrial home detention. We affirm. Issue. Whether Lewis is entitled to credit for time on pretrial home detention."

Eric J. Inman v. Tamara S. Inman - " Eric J. Inman (“Husband”) appeals the trial court‟s post-dissolution decree orders (1) granting the motion to correct errors of Tamara S. Inman (“Wife”), and (2) finding that he was in contempt. We affirm. * * *

"Based upon the facts in this case, we cannot say that the trial court abused its discretion when it granted Wife‟s motion to correct errors, thereby vacating its order to escrow $29,600 from the F-5 sale proceeds for payment of capital gains taxes. * * *

"[T]he trial court did not abuse its discretion when it held that Husband was in contempt for the transferring the 401(k) without Wife‟s knowledge and consent."

Bank One v. Jeannene Surber, a 22-page opinion, Judge Darden writes:

Bank One appeals the trial court‟s entry of judgment in favor of Jeannene Surber (“Jeannene”) and its award of damages. We affirm in part, reverse in part, and remand.

Issues: 1. Whether Jeannene released her claims against Bank One by entering into a settlement agreement in a cause of action separate from this action. 2. Whether the trial court‟s award of damages constituted an abuse of discretion. * * *

Initially, it is relevant to note that Bank One is principally challenging the trial court‟s award of damages. It does not challenge the trial court‟s conclusion that it was negligent and that it breached its contract with Jeannene. * * *

[1] Based on the contradictory provisions of the settlement agreement and Jeannene‟s testimony that she did not intend to release Bank One from liability by executing the settlement agreement, the trial court properly concluded that the settlement agreement did not release Bank One from liability. * * *

[2] Taking all of this into consideration, we remand this case so that the trial court can conduct a hearing and recalculate Jeannene‟s damages. In doing so, the trial court shall award Bank One a set-off of $436,559 for the September 29, 2005 payment plus $8,100 for the July 24, 2002 payment of an overdraft. Bank One, then, is entitled to an initial set-off of $444,659. * * *

Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (0):

NFP criminal opinions today (10):

Michael G. Albrecht v. State of Indiana (NFP)

David C. Bartley v. State of Indiana (NFP)

John Ray Lane v. State of Indiana (NFP)

Preston Taylor v. State of Indiana (NFP)

Roy Lee Bennett v. State of Indiana (NFP)

Ernest Mance v. State of Indiana (NFP)

Kathryn Skaggs v. State of Indiana (NFP)

Daniel Trueblood v. State of Indiana (NFP)

German Lopez v. State of Indiana (NFP)

Warren Parks v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from 7th Circuit

In US v. Strode (SD Ind., Judge Barker), a 14-page opinion, Judge Manion writes:

After a five-day trial, a jury convicted Christopher Strode of two counts of conspiring to possess with the intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846, one count of manufacturing with the intent to distribute 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1), and two counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1957. The district court sentenced Strode to 192 months’ imprisonment. Strode appeals, challenging his sentence. We affirm. * * *

The district court committed no error in sentencing Strode. The district court’s drug quantity calculation, which comported with what Strode’s attorney advanced as reasonable in the district court, was not clearly erroneous. The district court properly enhanced Strode’s sentence one level for obstruction of justice based on Strode’s conversation with his co-defendants in violation of the court’s no-contact order. And the district court properly enhanced Strode’s sentence two levels based on the numerous instances of firearm possession by Strode in the record. We therefore AFFIRM Strode’s conviction and sentence.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - "At least 6 lawyers seek WD Kentucky U.S. attorney post"

Andrew Wolfson reports today in the Louisville Courier Journal in a story that begins:

At least six lawyers have met with U.S. Rep. John Yarmuth to talk about their interest in being recommended for nomination as U.S. attorney for Kentucky's Western District.

The list includes a judge, a former judge, an assistant U.S. attorney and a federal public defender.

Nominees for U.S. attorney are normally recommended to the president by U.S. senators of his party. But because both of Kentucky's senators are Republicans, Democratic President-elect Barack Obama is expected to seek input from Yarmuth, D-3rd District, about the opening in Louisville, and from U.S. Rep. Ben Chandler, D-6th, about the position in the Eastern District.

Spokesmen for both said they expect Obama's transition team to ask for their recommendations soon. Yarmuth said after a news conference yesterday that he and Chandler will each be asked to submit the names of several candidates for each position.

The nominees would have to pass an FBI background check and be confirmed by the Senate and probably wouldn't be sworn in for several months.

U.S. Attorney David Huber, who was nominated to the Western District seat in 2003 by President George W. Bush, announced Friday that he is resigning Jan. 31. The Eastern District has been headed since January 2008 by an acting U.S. attorney, James A. Zerhusen.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Courts in general

Courts - Yet more on "Kentucky Prosecutor says plea deal punishes philanthropist Robert Clarkson in DUI case"

Updating this ILB entry from Nov. 8, 2008, Andrew Wolfson of the Louisville Courier Journal reports today in a story that begins:

Insurance executive Robert "Bobby" Clarkson, who seriously injured a motorcyclist while driving drunk in June, cannot serve his 30-day sentence in his 6,877- square-foot, $1.7 million Anchorage home.

Senior Judge Kevin Delahanty yesterday rejected a plea agreement that would have placed Clarkson on home incarceration, citing the seriousness of his offense.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to Courts in general

Law - "Bush pushed the limits of presidential power"

Warren Richey, staff writer of The Christian Science Monitor, has a lengthy article today on presidential power. A quote:

[E]ven Mr. Bush's harshest critics must concede that on his watch the country remained free of further terrorist atrocities following the 9/11 attacks.

The deeper question is at what price?

At the heart of the debate over Bush's legacy is a fundamental difference in outlook over what it means to remain faithful to the constitutional protections laid down by America's founding generation.

Critics say the Bush administration's expansive vision of executive power eclipsed the Constitution's mandated system of checks and balances. Some see the Bush years as lurching toward an imperial presidency, posing a direct threat to the essence of American liberty.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to General Law Related

Law - "Angie's List claims data theft"

From a report by Daniel Lee in today's Indianapolis Star:

Indianapolis-based consumer rating service Angie's List is suing a rival startup, claiming its founder stole thousands of files from Angie's List Web service in an effort to start his own company.

The suit alleges that Christopher "Kit" Cody -- the founder of Washington, D.C.-based Trustys.com -- joined Angie's List as a regular member, then used an automated "bot" software program to harvest service-provider reports, ratings and other information then used for Trustys.com. Cody's attorney disputes the allegations.

The lawsuit raises what cyber-security experts say is one of the most common and costly computer security issues: Someone with legitimate access to a company's data misusing that information. * * *

A hearing in the case, filed in Marion Superior Court, is scheduled for next month.

According to the lawsuit, Cody, through his Angie's List membership, accessed 9,278 service-provider files from the Angie's List site using a "bot" program in multiple sessions. In one instance, between midnight and 2 a.m. Dec. 3, he used to program to access 2,451 profiles, according to the suit.

Reed emphasized that personal and financial information of Angie's List customers or service providers was not compromised.

Posted by Marcia Oddi on Wednesday, January 14, 2009
Posted to General Law Related

Tuesday, January 13, 2009

Ind. Decisions - Yet more on: New trial ordered by judge in pollution suit against New Albany power plant that jury rejected

Yesterday in this ILB entry I noted that the Appendix to the document filed Friday, the Response to Order to Show Cause (1527), was now available.

The Appendix (1528) and (1529) includes the individual affidavits of each of Cinergy’s counsel of record as of May 5, 2008, as well as expert reports, etc. I noted this was a lengthy set of documents, too lengthy for the ILB to obtain at $0.08/page.

A generous reader has now taken the time to obtain the documents for the ILB to post. Access them here. For details, see the docket description of 1528 and 1529 here.

Note that as these files occupy nearly 15 MB of space, the ILB will post them only until the space is needed.

MORE - Here is Judge McKinney's Order of 1/12/2009 (1536). He has reviewed the affidavits and rules that all but three lawyers are off the hook. (p. 3). Beginning on p. 4 the Judge reviews the affidavits of the experts. Then on p. 6:

It is the opinion of this Court that further action against [attorneys] Ezell, Moesser, and Thompson is unnecessary. The publishing of this and prior orders is sufficient. Further proceedings would create time consuming litigation threatening to overtake the issues of the case and draw time and energy away from the Court’s and the attorneys’ task of bringing this litigation to a close with as little delay as possible. No disciplinary action is recommended by this Court.
The conclusion on p. 7:
For the reasons stated herein, the Court concludes that defendants, Cinergy Corp., PSI Energy, Inc., and The Cincinnati Gas & Electric Company, and their counsel of record as of May 5, 2008, have SHOWN CAUSE why said counsel should not be subject to disciplinary proceedings in this Court. However, defendants, Cinergy Corp., PSI Energy, Inc., and The Cincinnati Gas & Electric Company, have FAILED to SHOW CAUSE why they should not pay for plaintiffs’, the United States of America (“USA”), and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, the Hoosier Environmental Council, and the Ohio Environmental Council, attorneys’ fees for bringing these issues to the Court’s attention. Within thirty (30) days of the date of this Order, plaintiffs’, the United States of America (“USA”), and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, the Hoosier Environmental Council, and the Ohio Environmental Council, shall file a statement of attorneys’ fees for filing Plaintiffs’ Motion for New Trial.

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Kenneth Ricks v. State of Indiana , a 6-page opinion, Judge Riley concludes:

Here, the trial court did not hold a hearing on Ricks’ request for permission to file a belated appeal, but, nevertheless, several of the above factors weigh in his favor. From the trial court’s findings at Ricks’ sentencing hearing we know that Ricks had no prior convictions, and was thus relatively unfamiliar with the legal system. Moreover, Ricks was young at the time of sentencing, and had not yet earned a high school diploma or any equivalent. Further, he was not advised of his right to appeal his sentence at his sentencing hearing, although he had been advised at his guilty plea hearing.

That being said, all of these factors could be outweighed if Ricks contributed to, or was responsible for, the delay in the filing of a notice of appeal. Although we know for certain that Ricks requested counsel to perfect an appeal over two months after his sentencing, and stated by letter that he had made that same request earlier, we cannot glean from the record before us exactly when, or if, that earlier request was made. It is possible that Ricks expressed to his trial counsel that he did not want to appeal, and then changed his mind sometime more than thirty days after his sentencing. Such a series of events would place the fault of the delay squarely on Ricks and would make him ineligible for treatment under Post-Conviction Rule 2. As such, Ricks’ letter alone has not proved by a preponderance of the evidence that he was without fault for the failure to timely file his notice of appeal. Therefore, we conclude that the trial court erred when granting Ricks permission to file a belated appeal. However, this error on the part of the trial court should not prevent Ricks from pursuing permission to file a belated appeal if he can present sufficient evidence that he was not at fault for failing to file a timely notice of appeal.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred when it granted Ricks permission to file a belated notice of appeal, but remand so that the trial court can hold a hearing to determine whether Ricks is at fault for failing to file a timely notice of appeal. Reversed and remanded for further proceedings.

In Motorists Mutual Insurance Co. v. Alexis Wroblewski, a 10-page opinion, Judge Riley writes:
Motorists Mutual presents one issue on appeal, which we restate as follows: Whether Motorists Mutual’s insurance policy provides liability coverage to the named insured for the damages sustained by Alexis by virtue of the named insured’s signature on the financial responsibility form, pursuant to Indiana Code section 9-24-9-3. * * *

Even though Bertha’s liability derives from her signature on a financial responsibility form pursuant to
I.C. § 9-24-9-3, it is the language of the policy that determines whether this liability is covered by an insurance company. We have previously held that an insurance policy that is unambiguous must be enforced according to its terms, even those terms that limit an insurer’s liability. [cites omitted] We may not extend insurance coverage beyond that provided by the unambiguous language in the contract. Id. Here, the unambiguous provisions of the policy clearly include an exclusion that applies to accidents involving non-covered automobiles owned by family members. Even though Aaron was a family member, his car was not covered under Motorist Mutual’s policy. Therefore, we conclude that the trial court erred in granting summary judgment in favor of the Wroblewskis.

Based on the foregoing, we conclude that the trial court erred in granting summary judgment to the Wroblewskis. We reverse and remand to the trial court with instruction to enter summary judgment in favor of Motorists Mutual.

NFP civil opinions today (1):

Deborah K. Johnson v. Indiana Thoroughbred Breeders & Owners Assoc., Inc. (NFP) - "Based on the foregoing, we conclude that it is unnecessary for us to determine whether the trial court abused its discretion by denying Johnson’s motion for a continuance because Johnson has failed to show that she was prejudiced by the denial. Affirmed."

NFP criminal opinions today (13):

Jeffrey L. Gleason v. State of Indiana (NFP)

Joseph L. Arrington v. State of Indiana (NFP)

Matthew Thomas Franks v. State of Indiana (NFP)

Jeremy M. Brandeberry v. State of Indiana (NFP)

William M. Sims v. State of Indiana (NFP)

Derrick Hall v. State of Indiana (NFP)

Kenny Sturdivant v. State of Indiana (NFP)

Ian McCullough v. State of Indiana (NFP)

Jerry Pellegrino v. State of Indiana (NFP)

Alejandro Ramirez v. State of Indiana (NFP)

Timothy A. Parker v. State of Indiana (NFP)

Anne L. Hickman v. State of Indiana, et al (NFP)

Robert Anderson v. State of Indiana (NFP)

George F. Martin v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - State of the Judiciary Address tomorrow afternoon

The event will take place Wednesday, January 14, 2009, at 2 PM. Here is the news release. More tomorrow.

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Indiana Courts

Law - "Democrats Look for Ways to Undo Late Bush Administration Rules"

Charlie Savage has this story in the NY Times, that begins:

WASHINGTON — Democrats are hoping to roll back a series of regulations issued late in the Bush administration that weaken environmental protections and other restrictions.

Potential targets include regulations allowing concealed weapons in some national parks and forbidding medical facilities that get federal money from discriminating against doctors and nurses who refuse, on religious grounds, to assist with abortions.

“Congress is going to have to roll up its sleeves and review these midnight regulations,” Senator Ron Wyden, Democrat of Oregon, said in an interview, “because it’s clear that they are part of a desire for the administration, as it heads out the door, to put some ideological trophies on the wall.”

Mr. Wyden, the chairman of a subcommittee on natural resources, said he was focusing on a series of recently issued environmental rules. Among them are measures relaxing protections for endangered species, allowing uranium mining near the Grand Canyon, and making it easier for coal companies to dump mining debris in nearby streams and valleys.

The enactment of such rules has been the subject of a drumbeat of news reports in recent months. Though it can take years for a new administration to complete the process necessary to overturn a rule that has taken effect — allowing a president to tie his successor’s hands — Democrats will have far greater opportunity to rescind Mr. Bush’s late rules than has typically been the case in a period when the party in power changes. With Democratic control of both chambers of Congress and the White House, the political planets are aligned to make much of the Bush administration’s late handiwork unusually vulnerable.

Cindy Skrzycki, who writes "The Regulators" column for the Washington Post, has a column today headed "The Rule Czar's Balancing Act." Some quotes:
A tough economy and the prospect of Cass Sunstein as regulatory czar may moderate the Obama administration's wholesale elimination of President Bush's last-minute rules and the direction of health and safety policy.

Transition officials and congressional Democrats are compiling an arsenal of administrative weapons to rescind or remove final rules they want off the books. Yet the momentum may be slower than public-interest allies hope when President-elect Barack Obama's team calculates how those rules will affect a stimulus package and its new bottom line -- jobs.

This prospect delights the business community, which is coming to realize that the rising U.S. unemployment rate is its most powerful antidote for fighting environmental and other groups that want to roll back many of the 102 rules the Bush administration has issued since November.

Industry trade associations also have been quietly applauding Obama's appointment of Sunstein to run the White House office that reviews regulations. Sunstein has written prolifically on the costs and benefits of rulemaking, and some of those writings worry Obama supporters. * * *

"There is a lot of fear that he is a John Graham in progressive garb," Vladeck said. "But there is a huge difference from looking at something from an academic perspective and as a regulator."

John Graham, who ran the Office of Information and Regulatory Affairs from 2001 to 2006, centralized review of rules in the White House; used financial analysis aggressively; and locked horns continually with liberal-minded public interest groups, particularly on environmental issues.

Graham, now dean of the Indiana University School of Public and Environmental Affairs, said Sunstein is an innovator in applying cost-benefit analysis, taking into account the environment and low-income populations. "He cares deeply for the president's need for leadership in regulatory policy," he said

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to General Law Related

Ind. Gov't. - "Libraries are overwhelmed by unemployed filing for help"

This article caught my eye because of state government's assumption that citizens have ready online access for unemployment benefits, welfare benefits, access to Indiana laws and rules, etc. And the constant cutting of library funding and movements to consolidate doesn't help any.

Margaret Fosmoe of the South Bend Tribune reports:

When Elkhart Public Library's Pierre Moran Branch opened at 1 p.m. Sunday, there were already 51 people outside waiting in line.

They were there to use the library's public computers to file required weekly online claims with the Indiana Department of Workforce Development for unemployment benefits.

The crowds have grown so large, the library has taken to handing out numbers to those waiting to use the computers to file claims. One employee is assigned to handle crowd control. * * *

Some libraries report being overwhelmed by people needing computers to file for unemployment benefits.

Library employees are doing their best to serve the filers, but Indiana's decision to require online filing is an unfunded mandate affecting every public library, Ozinga said. Most filers come on Sunday, the first day of the week, so they receive benefits as soon as possible, she said.

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Indiana Government

Ind. Courts - "City needs to pay sanctions promptly"

Brian Jones reported Jan. 10th in the Madison Courier:

U.S. Magistrate Judge William G. Hussmann Jr., denied a request to modify the sanctions he imposed on the City of Madison and several officials for not producing requested evidence.

The case was brought 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 case was moved from state to federal court on Oct. 15, 2007.

The other defendants who also are facing sanctions are former Mayor Albert G. Huntington, former Madison Police Chief Robert Wolf, City Councilman Jim Lee and former city attorney Robert L. Barlow II.

D. Timothy Born of the Evansville law firm Terrell, Baugh, Salmon and Born, who represents the city, requested the court modify the sanctioning order and allow him to pay the $1,000 fine and the three women's attorney fees for filing the motion for sanctions imposed by the court, since he said his actions resulted in the sanctions.

Hussmann did not agree and wrote in his order, "The sanction was made necessary because of a continued pattern throughout the litigation of inadequate and incomplete attention to answers to interrogatories and responses to requests for production of documents and a failure to properly assert objections as to privilege."

As to who will pay the sanctions, Hussmann left it up to Born and his clients. However, Hussmann did order that the sanctions be paid promptly.

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "AG blasted for GUEA scholarships plan"

John Byrne of the Gary Post-Tribune reports today in a story that begins:

INDIANAPOLIS -- State Rep. Charlie Brown of Gary blasted outgoing Attorney General Steve Carter on Monday for earmarking funds recovered from the disbanded Gary Urban Enterprise Association for scholarships at Indiana University Northwest.

Brown said Carter exceeded his authority by unilaterally tabbing $675,000 in GUEA funds for scholarships.

"Perhaps this is a good way for the $675,000 to be used, but this is a decision that should be made by the people of the area that was supposed to benefit from GUEA," Brown said. "The original intent was for the people of the Emerson neighborhood to determine the best uses of the money, not some person ruling from on high down in Indianapolis."

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Indiana Government

Ind. Courts - "New Randolph commissioners want to change courthouse plans -- again"

The Randolph County Courthouse is in the news yet again -- here is a long list of earlier ILB entries. Today Joy Leiker reports in the Muncie Star-Press:

WINCHESTER -- The two newest members of the Randolph County Board of Commissioners are keeping their campaign promises, and stopping a multi-million-dollar plan to build an annex on the south side of the courthouse.

Commissioners Troy Prescott and Noel "Bud" Carpenter want to scale back the much-debated project and renovate the existing 19th-century courthouse. Neither man supports the annex construction, and now favor adding only a tower to house an elevator and stairs as required by current accessibility laws.

At the same time, the two also have asked the newly-appointed county attorney, Meeks Cockerill, to review the contracts with the existing architects, Martin Riley of Fort Wayne, and construction project manager Lester "Spike" Shepler of Noblesville. Prescott and Carpenter want to end dealings with both companies. Shepler was hired in April 2008 (to replace a previously fired construction manager), while the Martin Riley firm was hired in December 2004.

"I'm going to get rid of them, yeah," Prescott said. "All the drawings they've drawn up are useless," since the Martin Riley plans all center around the construction of an annex to house the courts, clerk and prosecutor. The plan was to transform their existing offices into more space for other county departments.

Prescott long has been a critic of the Fort Wayne architecture company. He blamed their design for roof problems at Baker Elementary School in Winchester when he was a member of the Randolph Central School Board.

"We wanted to stop the money," Carpenter said. "We felt this was not a time to go into debt."

That's an answer to a prayer for some, who insisted this largely agricultural county, with a population that's getting smaller with every Census count, couldn't afford a $10.7 million construction project that would require millions more in bond payments for another 28 years.

And to those who think this is just another delay in a project that since 2004 already has brought worldwide, and sometimes unwanted fame, to the county, Prescott and Carpenter said it's not.

"We're moving. We're going to do this," Prescott said.

Fellow Commissioner Kathy Beumer, the lone holdover from last year's board, said though she has favored the previous plans, and still thinks the county is skirting long-term security and storage needs, she won't withhold her support of a less-expensive option, as long as the renovation of the courthouse remains central.

"The important thing is that we save the courthouse. The only thing that I'm going to object to is if I feel like it's not being done in a proper way," Beumer said.

Posted by Marcia Oddi on Tuesday, January 13, 2009
Posted to Indiana Courts

Monday, January 12, 2009

Ind. Decisions - Still more on: New trial ordered by judge in pollution suit against New Albany power plant that jury rejected

Updating this ILB entry from Friday, a number of additional documents have been added to PACER.

One is the Appendix to this document filed Friday, the Response to Order to Show Cause (1527). The Appendix (1528) contains the individual affidavits of each of Cinergy’s counsel of record as of May 5, 2008.

Here are the updated Docket pages listing the new documents. The ILB unfortunately cannot afford to download the listed docs at $0.08/page!

Note however that 1536 includes the following: "ORDER re 1508 Order to Show Cause − Certain Parties shall have 30 days to submit a statement of attorneys' fees for filling Plaintiffs' Motion for New Trial (See Order). Hearing on the Order to Show Cause set for 1/13/2009, is VACATED."

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on Supreme Court gun ruling

Updating the ILB entry immediately below, Jon Murray of the Indianapolis Star now reports:

The Indiana Supreme Court today declined to get involved again with the city of Gary’s 10-year-old lawsuit against several gun makers, allowing the case to proceed to trial.

The court’s order, issued after the justices reviewed the gun manufacturers’ request that they take up the case, lets stand an October 2007 Indiana Court of Appeals ruling. That 3-0 ruling said a provision in the federal Protection of Lawful Commerce in Arms Act, passed by Congress in 2005, did not bar the Gary lawsuit from proceeding in state court.

Gary’s lawsuit, filed in 1999, alleged that 16 gun makers and six Northern Indiana gun dealers sold guns they knew would end up in criminals' hands.

The last time the Indiana Supreme Court waded into the dispute, in 2003, it ruled unanimously that state public nuisance laws could apply to the city of Gary's claims and allowed the lawsuit to proceed. The gun manufacturers’ second challenge took root later, after the federal law was passed.

In today’s order, three state Supreme Court justices voted to reject the appeal. Justice Frank Sullivan Jr. voted to accept the case, while Justice Theodore R. Boehm voted wait until the U.S. Supreme Court resolves another case. * * *

After the Gary lawsuit was filed, the Indiana General Assembly passed a bill the following year to ban similar lawsuits by other municipalities.

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Brady Center announces Supreme Court gun ruling

The Brady Center has issued this news release, but I can find no opinion online. At second glance, I see -- it is a denial of transfer:

Indiana Supreme Court Denies Gun Manufacturers' Appeal Of Gary, Indiana's Lawsuit: First State Supreme Court to Reject Application of Federal Gun Industry Shield Law

Washington, D.C. - In a landmark ruling today, the Indiana Supreme Court ruled that the City of Gary’s lawsuit against gun manufacturers may proceed to trial. The Court refused to hear a challenge to the Indiana Court of Appeals’ October 2007 ruling rejecting gun industry claims that the federal Protection of Lawful Commerce in Arms Act shields the gun industry from liability for irresponsible sales practices that funnel guns to the criminal market.

In a major setback to the gun industry, the Indiana Supreme Court refused the gun manufacturers’ petition to transfer the case, instead allowing the Court of Appeals ruling to stand. The Court of Appeals held on October 29, 2007, that the Protection of Lawful Commerce in Arms Act does not shield gun manufacturers from liability for sales practices that knowingly violate Indiana’s public nuisance statute. The ruling by the Supreme Court today allows Gary, Indiana’s lawsuit against sixteen gun manufacturers and six northern Indiana gun dealers to proceed to trial. Lawyers from the Brady Center’s Legal Action Project represent the City of Gary in the case.

“The Indiana Supreme Court’s ruling is an important victory for the people of Gary and particularly those who have suffered from the gun industry’s supply of guns to criminals and gun traffickers,” said Paul Helmke, President of the Brady Center and former Mayor of Fort Wayne, Indiana. “When the gun industry violates the law and allows dangerous people easy access to illegal firearms, it should be held accountable.”

Brian J. Siebel, Senior Attorney with the Brady Center to Prevent Gun Violence and co-counsel representing the City of Gary, stated: “After years of delay caused by numerous rejected gun industry appeals, the citizens of Gary may finally have their day in court and help put an end to the unlawful practices of gun makers that funnel guns into the criminal market.”

This is the second ruling by the Indiana Supreme Court in this case. It unanimously ruled in Gary v. Smith & Wesson Corp. in December 2003 that the City stated valid claims alleging “that the Manufacturers knowingly participated in a distribution system that unnecessarily and sometimes even intentionally provided guns to criminals, juveniles, and others who may not lawfully purchase them.”

Gary’s case began with a sting conducted by Gary police of northern Indiana gun dealers that, between them, supplied more than 60 percent of the crime guns recovered in the city. The dealers’ sales to undercover officers posing as “straw purchasers” was captured on videotape before the suit was filed, and confirmed the dealers’ gross misconduct in supplying the underground market. Gary also sued the major gun manufacturers who sold handguns through these dealerships and profited from the diversion of guns to criminals.

The case is SMITH AND WESSON ET AL. -V- CITY OF GARY, Interlocutory, Case Number: 45 A 05 - 0612 - CV - 00754.

The Court of Appeals ruling was issued on Oct. 29, 2007. See ILB entry here.

Here is a list of ILB entries on the case, going back to 2004.

And here is today's Supreme Court order:

THIS MATTER HAS COME BEFORE THE INDIANA SUPREME COURT ON A PETITION TO TRANSFER JURISDICTION FOLLOWING THE ISSUANCE OF A DECISION BY THE COURT OF APPEALS.

THE PETITION WAS FILED PURSUANT TO APPELLATE RULE 57.

THE COURT HAS REVIEWED THE DECISION OF THE COURT OF APPEALS. ANY RECORD ON APPEAL THAT WAS SUBMITTED HAS BEEN MADE AVAILABLE TO THE COURT FOR REVIEW, ALONG WITH ANY AND ALL BRIEFS THAT MAY HAVE BEEN FILED IN THE COURT OF APPEALS AND ALL THE MATERIALS FILED IN CONNECTION WITH THE REQUEST TO TRANSFER JURISDICTION.

EACH PARTICIPATING MEMBER OF THE COURT HAS VOTED ON THE PETITION. EACH PARTICIPATING MEMBER HAS HAD THE OPPORTUNITY TO VOICE THAT JUSTICE'S VIEWS ON THE CASE IN CONFERENCE WITH THE OTHER JUSTICES. BEING DULY ADVISED, THE COURT NOW DENIES THE APPELLANT'S PETITION TO TRANSFER OF JURISDICTION.

RANDALL T. SHEPARD, CHIEF JUSTICE SHEPARD, C.J., DICKSON AND RUCKER, JJ., CONCUR.
SULLIVAN, J., VOTES TO GRANT TRANSFER.
BOEHN, J., VOTES TO HOLD THE CASE FOR RESOLUTION OF LITIGATION PENDING IN THE U.S. SUPREME COURT. KM

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - "MSNBC to air series focused on Lake Juvenile Court"

Marisa Kwiatkowski reports in the NWI Times in a story that begins:

CROWN POINT | A 17-year-old girl brought her baby to a late night party, smoking pot and hanging out with friends.

Shortly after the party, she turned up at the home of the child's grandmother to pawn off the baby because it was getting on her nerves. The teen had left home when her mother told her to follow the rules or get out.

The girl's story, which unfolded in Lake Juvenile Court, will be featured in a series of MSNBC special reports on juvenile justice expected to air later this year.

"Our hope is that people will understand where crime starts," said Karen Grau, president and executive producer of Calamari Productions, which shot the series. "Rather than just focusing on the stress between kids and parents, like in MTV's "Juvies," this is completely different. It's kids showing us a glimpse of why they got in trouble and what their mind-set was."

MSNBC will air six one-hour episodes, with each episode featuring three juveniles as they navigate through the Lake Juvenile Court system in Crown Point. No air date has been set.

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Indiana Courts

Ind. Courts - More on "Gary court, clerk fight for jobs"

Updating this ILB entry from Jan. 9th, Jon Seidel reports today in the NWI Times:

GARY -- Attempts to eliminate the Gary city court or downsize its clerk's office as the city comes to grips with new tax caps could be met with a legal challenge.

Both ideas were part of a six-hour discussion in Indianapolis before the state's Distressed Unit Appeals Board last Monday. * * *

Gary's court and clerk take up a total of about $3.3 million worth of the city's $63 million 2009 budget. Without the board's help, the city might be forced to reduce its spending by at least $24 million.

By 2012, if the tax caps become constitutional, the appeals board would be powerless to step in. That means Gary would be forced to operate under the caps.

However, Raggs said the court and the clerk are the "largest revenue generating community service team in the city." They average more than $1 million in total annual collections, Raggs said, processing more than $300,000 in cash bonds each year.

"Are citizens prepared to accept the loss of court services that have existed in our city since 1910?" Raggs said.

City Judge Deidre Monroe said she is worried, also, about the loss of a city court and the effect it would have on local residents.

"We're the only mental health court in Lake County," Monroe said. "The city of Gary cannot afford to lose those sorts of programs."

A drastic move like eliminating the city court can't happen on a whim, clerk attorney Jewell Harris Jr. said. At the very least, he said, it would require a vote by the City Council.

"It may require state authorization as well," Harris said.

Second-class cities can abolish their courts every four years, according to state statutes. Gary's next opportunity would be in 2010.

Before that happens, Harris said, city and state officials have some homework to do. Eliminating the city court means extra work for Lake County judges.

"Does the county even know that's the city's plan?" Harris said. "Is the county prepared to absorb those 70,000 pending cases?"

If the court were eliminated without the proper research, Harris said, he's "sure" there would be legal challenges. First, though, he said he wants to make sure everyone is aware of the ramifications.

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Donald J. Lindsey and Jacquelyn Lindsey v. Johannes DeGroot, et al, a 22-page opinion in a case challenging Indiana's Right to Farm Act, Judge Bradford writes:

Appellants-Plaintiffs Donald J. Lindsey and Jacquelyn Lindsey (collectively, “the Lindseys”) appeal from the trial court's order granting summary judgment in favor of Johannes DeGroot, Egberdien DeGroot, and DeGroot Dairy, LLC (collectively, “DeGroot Dairy”). On appeal, the Lindseys contend that the trial court incorrectly interpreted and applied the Indiana Right to Farm Act to the facts of this case and that the trial court's award of summary judgment is erroneous because issues of material fact remain with regard to their criminal trespass, criminal mischief, and intentional infliction of emotional distress claims. Concluding that the trial court's award of summary judgment in favor of DeGroot Dairy was proper, we affirm. * * *

On December 9, 2003, the Lindseys filed suit against DeGroot Dairy seeking to enjoin the dairy from further operation and for compensation for nuisance, negligence, trespass, criminal mischief, and intentional infliction of emotional distress. DeGroot Dairy filed a motion for summary judgment on September 17, 2007. A hearing was held on DeGroot Dairy's motion on February 25, 2008. On April 24, 2008, the court issued an order granting summary judgment to DeGroot Dairy. In its summary judgment order, the trial court determined that the Indiana Right to Farm Act was constitutional and applied to the instant action, barring the Lindseys' nuisance claims. The trial court also determined that no genuine issues of material fact existed regarding the Lindseys' trespass, criminal mischief, and intentional infliction of emotional distress claims. This appeal follows. * * *

II. Constitutionality and Application of the Right to Farm Act [IC 32-30-6]

The Indiana Right to Farm Act (the “Act”) was adopted by the General Assembly in an attempt to limit the circumstances under which agricultural operations could become subject to nuisance suits. [IC 32-30-6-9] * * *

A. Whether the Indiana Right to Farm Act is Constitutional * * *

We note that like the Idaho and Texas courts, we have found nothing to suggest that Indiana has adopted the seemingly unique Iowa holding that the right to maintain a nuisance is an easement, and the Lindseys have failed to explain why we should. Therefore, we expressly decline the Lindseys' invitation to adopt Iowa's proposition that the right to maintain a nuisance contained in the Act creates an easement in favor of DeGroot Dairy. Having rejected the claim that the Act effectively grants an easement to DeGroot Dairy over the Lindseys' property, we turn our attention to the application of the Act to the instant matter.

B. Whether the Indiana Right to Farm Act Bars the Lindseys’ Nuisance Claim

The underlying basis of the Lindseys' nuisance claim against DeGroot Dairy is that the operation of DeGroot Dairy is a nuisance that interferes with the Lindseys' use and enjoyment of their property. * * *

Therefore, we conclude that the Lindseys' nuisance claim is barred by the Act unless they can establish that the alleged nuisance resulted from the negligent operation of DeGroot Dairy. C. Whether Application of the Right to Farm Act was Improper Because the Claimed Nuisance Resulted from the Negligent Operation of DeGroot Dairy.

C. Whether Application of the Right to Farm Act was Improper Because the Claimed Nuisance Resulted from the Negligent Operation of DeGroot Dairy

The Lindseys next contend that the application of the Act was improper because their claimed nuisance resulted from the negligent operation of DeGroot Dairy. The Lindseys' claim of negligence is based exclusively on DeGroot Dairy's alleged violations of IDEM's CFO regulations. * * *

Therefore, there is no issue of material fact as to whether the Indiana Right to Farm Act applies, and the trial court correctly awarded DeGroot Dairy summary judgment on the Lindseys' nuisance claim. * * *

In sum, having concluded that the Lindseys have failed to designate any evidence contrary to the trial court's determination that the Indiana Right to Farm Act applied to the instant matter and barred the Lindseys' nuisance claim against DeGroot Dairy, and that summary judgment was proper because no issue of material fact remained on the Lindseys' criminal trespass, criminal mischief, or intentional infliction of emotional distress claims, we affirm the summary judgment of the trial court.

In In the Termination of the Parent-Child Relationship of: J.H. - "Having concluded that neither A.C. nor Indiana Code section 31-32-9-1(d) operates to exempt ACDCS from required compliance with the Indiana Trial Rules regarding service of process, but having concluded that ACDCS nevertheless adequately complied with such rules to satisfy due process considerations, we reject Father's challenge to the trial court‟s termination of his parental rights to J.H. on the grounds that it did not have personal jurisdiction over him. The judgment of the juvenile court is affirmed."

In the Matter of T.K. - "T.K. appeals from his commitment to the Department of Correction (“DOC”) following the juvenile court’s adjudication that he committed child molesting, a Class B felony if committed by an adult. We affirm. "

Derrick Monroe v. State of Indiana - "Having concluded that the trial court did not err in considering certain hearsay
testimony and that there was sufficient evidence demonstrating Monroe’s constructive possession of a handgun, we affirm the trial court’s judgment revoking Monroe’s placement in home detention and changing his placement to the DOC."

NFP civil opinions today (1):

Bobbie L. Green v. Russell E. Green (NFP) - "Bobbie Green appeals the trial court‟s order in this dissolution proceeding awarding Russell Green custody of the couple‟s child, T.G.; requiring Bobbie to pay child support; and distributing property. On appeal, Bobbie raises three issues, which we restate as: (1) whether the trial erred when it granted primary physical custody of T.G. to Russell; (2) whether the trial court erred in its calculation of child support; and (3) whether the trial court erred in its distribution of property. Concluding the trial court committed no error, we affirm. "

NFP criminal opinions today (1):

Donald Doty v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In White Eagle Coop. v. USDA (ND Ind., Judge Sharp), a 42-page opinion, Judge Ripple writes:

The plaintiffs brought this action against the United States Department of Agriculture (“USDA” or “the Government”), challenging the USDA’s rulemaking process and a resulting amendment to the Mideast Milk Marketing Order. The plaintiffs alleged violations of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq.; the USDA’s rules of practice, 7 C.F.R. § 900.1 et seq.; the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq.; and the Fifth Amendment’s Due Process Clause. A number of dairy producers who supported the regulatory changes intervened to defend the amended rule and the adoption process. The district court granted summary judgment to the USDA and the intervenors on all counts. For the reasons set forth in this opinion, we affirm the judgment of the district court. * * *

In short, the USDA rejected White Eagle’s arguments because they missed the mark. Although the diversion limits may have decreased the volume of milk available for manufacturing uses, with a resultant decrease in returns for some producers, preserving returns for every producer was not the USDA’s primary goal. Instead, the problem that the USDA was attempting to address through diversion limits was the opportunistic entry into the market by producers (to take advantage of the higher blend price) who did not regularly serve the Class I needs of the market, with the resultant additional costs. Thus, far from being a reason not to implement the diversion limits, the fact that some producers would be excluded from the pool (because they did not serve regularly the fluid needs of that market), and may suffer a decrease in returns (because they could no longer benefit from the higher blend price), was consistent with the policy approach the USDA had adopted in its prior milk marketing orders and continued in the order at issue.

We cannot say, therefore, that the USDA’s adoption of the present order was arbitrary or capricious, nor do we believe that the USDA failed to consider relevant evidence in adopting the current rule.

Conclusion. For the foregoing reasons we affirm the judgment of the district court. AFFIRMED

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending Jan. 9, 2008 [Corrected]

Here is the transfer list for the week ending Jan. 9, 2008. It is four pages long.

One transfer was granted last week, in the case of Tri-Etch, Inc. v. Cincinnati Insurance Company. See ILB note here. See also this note re a transfer not granted.

Nearly 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.

[12:24 PM] The ILB has now received a "corrected" transfer list. Here it is. But with no word as to what was the change, for the benefit of those of us who have already reviewed the earlier version. I have requested that information.

[I:31 PM] Just received this response: "The Transfer for Cory Heinzman v. State (29A04-0710-CR-553), was inadvertently left off of the first Transfer List that was sent. It has been added to the Corrected Transfer List." ILB: This Transfer denial can now be found at the end of p. 2.

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Jan. 15th:

9:00 AM - Allstate Insurance Co. v. Ted K. Fields - Following a jury trial, the Lake Superior Court entered a judgment against Allstate and awarded Fields $2 million in compensatory damages and $6 million in punitive damages on his claim that Allstate engaged in bad faith when handling his claim. The Court of Appeals reversed after concluding the trial court erred by not granting Allstate's pretrial motion for summary judgment. Allstate v. Fields, 885 N.E.2d 728 (Ind. Ct. App. 5/8/2008). Fields has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys for Allstate: Karl L. Mulvaney, Nana Quay-Smith, Candace L. Sage, Indianapolis, IN. Thomas D. Collignon, Patrick J. Dietrick, Indianapolis, IN. Jack A. Kramer, Schererville, IN. Ronald D. Getchey, San Diego, CA. Attorneys for Fields: Kenneth J. Allen, William Lazarus, and Michael Terwilliger, Valparaiso, IN. [Note: See ILB summary of COA opinion here, 4th case.]

9:45 AM - Kail Fortson v. State of Indiana - Fortson was convicted in the Vanderburgh Circuit Court of receiving stolen property, a Class D felony. Fortson appealed, contending the evidence was insufficient to support an inference that he knew the property was stolen. The Court of Appeals affirmed in an unpublished memorandum decision. Fortson v. State, No. 82A04-0801-CR-16 (Ind. Ct. App. Aug. 29, 2008). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Fortson: Matthew Jon McGovern, Evansville, IN. Attorney for State: Nicle M. Schuster, Indianapolis, IN.

10:30 AM - Thomas Armfield v. State and Damen Holly v. State - Holly was convicted in the Marion Superior Court of possession of marijuana, a Class A misdemeanor. In an unrelated matter, Armfield was convicted in the Hamilton Superior Court of Operating a Vehicle after a Lifetime Suspension, a Class C felony. Both defendants' arrests were incident to traffic stops premised on random license plate checks that revealed the owners of the vehicles had suspended licenses. In Holly v. State, the Court of Appeals reversed, concluding a police officer's knowledge that a vehicle's registered owner lacks a valid license is, by itself, insufficient to permit an investigatory traffic stop. See 888 N.E.2d 338 (Ind. Ct. App. 6/17/2008). [ILB summary here.] In Armfield v. State [ILB Note: This opinion was originally issued as NFP on 8/11/08, made FP on 9/15/08], a different panel of the Court of Appeals affirmed, concluding that a police officer's knowledge that a vehicle's registered owner lacks a valid license is enough to permit an investigatory traffic stop. See 894 N.E.2d 195 (Ind. Ct. App. 8/11/2008). The Supreme Court has granted petitions to transfer in both cases and has assumed jurisdiction over both appeals. The Court will hold a sixty (60) minute combined oral argument for the two cases, but otherwise has not consolidated the appeals per Appellate Rule 39(B).

Webcasts will be available here.


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

This Tuesday, Jan 13th:

2:00 PM - James W. Smyth vs. Judy G. Hester and The Estate of Timothy P. Brazill, Brian J. Zaiger as Personal Representative - The law firm of Plews Shadley Racher and Braun LLP ("PSRB") appeals the trial court's order awarding attorney fees to Judy Hester and the Estate of Timothy Brazill, wherein PSRB represented James Smyth in an action involving the breakup and/or dissolution of the partnership of Smyth, Hester, and Timothy Brazill (Deceased). The Scheduled Panel Members are: Judges Friedlander, Darden and Barnes. [Where: Indiana Supreme Court Courtroom]

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

This Thursday, Jan. 15th:

12:30 PM - Jeff Perkins & Kessler Advisors, LLC vs. James R. Brown, Lisa Brown and Simspon Brown, LLC, - This appeal originates from a complaint for declaratory relief, accounting, and dissolution of a Kessler Advisor, LLC, a limited liability corporation owned by Appellant-Defendant Jeff Perkins and Appellee-Plaintiff James Brown. The limited liability corporation was dissolved by stipulation prior to the trial. Perkins appeals the trial court's judgment in favor of Brown in the amount of $155,175.84, representing fifty percent of the net profits and retained earnings of the LLC. In his appeal, Perkins contends that the trial court erred when it entered judgment against him personally despite the absence of any evidence that he authorized distributions that left the limited liability corporation insolvent. He additionally claims that the trial court abused its discretion when it granted Brown's motion to amend the pleadings after the entry of final judgment. The Scheduled Panel Members are: Judges Kirsch, Robb and Bradford. [Where: Krannert Center for Executive Education, Purdue University, West Lafayette, Indiana 47907]

Posted by Marcia Oddi on Monday, January 12, 2009
Posted to Upcoming Oral Arguments

Sunday, January 11, 2009

Ind. Law - Golf carts bills are in the legislative hopper

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today under the headline "Many Ind. bills cater to constituents' wishes." She writes that Sen. Brent Steele, R-Bedford, has filed "legislation to make golf carts legal to register and drive on roads other than highways." More:

A number of towns in his district and the surrounding area -- including Holland, where his cousin is on the Town Council -- have passed local ordinances to legalize their use.

But because the BMV won't register golf carts, state police sometimes ticket the drivers, Steele said.

"Driving a golf cart around town makes sense, especially when gas was up to $4 a gallon," he said. "These ordinances say they have to be wired with lighting, brake lights, just like any other vehicle or moped. I don't see any difference between these and a moped."

BMV officials are studying the bills but have not taken a position on them, Rosebrough said.

The bill is SB 291. Senator Michael Delph has also introduced a golf cart bill, SB 199.

Check here for a lengthy list of ILB entries re golf carts on streets and highways.

Posted by Marcia Oddi on Sunday, January 11, 2009
Posted to General Law Related

Environment - Many environmental stories today

Recycling. Following up on earlier ILB entries on IDEM cutbacks (such as this one from Jan. 3rd), John Ketzenberger, business columnist of the Indianapolis Star, writes today that "Indiana is being penny-wise and pound-foolish" in cutting Indiana's recycling-assistance program from the state's 2010-11 budget, noting that "every dollar the state spent on recycling grants brought $41.76 more to the state."

No more stringent. The "no more stringent" idea appears this session in the form of SB 79, according to a story today by Gitte Laasby of the Gary Post Tribune. Under the bill, any proposed rule before one of the environmental boards may not be final adopted without review and approval by a new Environmental Rule Review Board. From the bill:

The [new] board may not approve a rule that contains a provision that is more stringent than a corresponding federal provision established under federal law unless the board finds that the provision is necessary to address an emergency situation that is unique to Indiana.
The voting members of the new board are the IDEM commissioner, and two representatuves of business appointed by the governor.

Public record requests. Laasby has another story today, headed "IDEM attorney now working in file room." A quote:

The top legal manager at the Indiana Department of Environmental Management has been moved to the agency's file room.

Robert Keene had been the assistant commissioner of the Office of Legal Counsel for a couple of years until a month ago. He is now listed on IDEM's Web site as "attorney." He works out of the file room, where he responds to public information requests.

Ready access to IDEM records - enforcement records, permit records, guidance documents, etc. - is essential to entities regulated by IDEM and their counsel, as well as to members of the public and the media exercising their right to measure IDEM effectiveness.

Coal ash ponds. James Bruggers reports today in the Louisville Courier Journal:

A West Virginia congressman is looking at the nation's strip mining law as a way to prevent coal ash ponds from collapsing.

There are no federal regulations on the design, construction or maintenance of impoundments that hold vast quantities of ash and water -- such as the one that that collapsed Dec. 22 near Knoxville, Tenn., releasing more than 1.1 billion gallons of sludge.

"It seems to us there's a regulatory gap," said Jim Zoia, a senior aide to Rep. Nick Rahall, D-W. Va., chairman of the House Committee on Natural Resources.

Zoia said Rahall will explore whether the ash ponds could be regulated similarly to impoundments of another type of coal waste -- slurry and sludge from coal mining operations.

Coal mining slurry impoundments are regulated under the Surface Mining Control and Reclamation Act, which has specific requirements for design, construction, maintenance and inspections, he said.

The congressman pledged to begin by holding hearings.

The issue is important to Kentucky and Indiana, which are among the leading producers of ash and other wastes from burning coal. The two states annually produce millions of pounds of ash, which contain toxic materials.

Chicken manure. Alicia Gallegos of the South Bend Tribune has a lengthy story today claiming decades of ineffective enforcement. Some quotes:
One of the area's largest egg farms has been violating waste disposal requirements for almost two decades, health officials say, allowing chicken waste to overflow into county ditches, streams and groundwater.

Pick of the Chick Egg Farm, 16901 Madison Road, in St. Joseph County, has received orders from as far back as 1991 to build a system to collect wash water from eggs and chicken waste, according to Marc Nelson, St. Joseph County Health department environmental manager. Nelson says the farm has never complied despite repeated orders and thousands of dollars' worth of fines.

Pick of the Chick farm manager Toni Shafer disputes that the farm has been in constant violation of waste rules and said any past problems with egg wash were corrected years ago.

Only recently did Shafer learn about a current violation issued by the Indiana Department of Environmental Management, she said, adding that at the moment, the farm is waiting on a state permit to put in a lagoon to retain the discharge.

Shafer also believes health officials have never been entirely clear on what the farm can do to meet requirements, despite various ideas they've offered for possible systems. * * *

Pick of the Chick's waste is discharged on site at the farm, Nelson explained, which then overflows onto a back field and into a ditch that eventually runs into streams and groundwater.

Recently, Nelson and local health department officials again appealed to officials at IDEM to take enforcement measures.

"We encouraged IDEM to be a little more forceful," Nelson said. "The health department is running out of patience."

Posted by Marcia Oddi on Sunday, January 11, 2009
Posted to Environment

Saturday, January 10, 2009

Environment - Cleanup of Angola's former Dana site

Here is the background on the issuing involving cleanup of Angola's former Dana site. Today the Fort Wayne Journal Gazette has two editorials on the topic.

This one, headed "Cleanup in Angola …", begins:

The safety of Angola’s drinking water and the loss of a local company are at risk – all because of the need to clean the contamination at a former Dana Corp. site.

Angola and Steuben County officials need to help the current property owner pay for the cleanup. And it needs to happen before the end of January.

When Dana Corp. ended operations at 203 Weatherhead St. in Angola, the company left behind an industrial site contaminated with trichloroethene, a chlorinated solvent. Dana’s bankruptcy proceedings are likely to come to a close in late January, and at that time the company will no longer be paying to run a hydraulic pump system that is supposed to protect Angola’s water supply from contaminated groundwater and oils. Dana put the pump system in place as part of an agreement with the Indiana Department of Environmental Management.

Now, it is the current owner of the property that is on the hook for the hefty environmental cleanup costs of the 11-acre site.

“Ultimately, the property owner is responsible for cleanup issues. But in this case we have a unique situation. We have an employer that everyone wants to keep. We have a pressing clean-water issue,” said Amy Hartsock, public information officer for IDEM. “Which, although they didn’t contribute to the problem, the liability falls to them.”

This second editorial, headed "… gamble for company," reads in full:
“We are a victim of Dana’s bankruptcy, like the city, like the county, like the state,” said Chuck Walker, CEO of Univertical Corp., which now uses the property.

Univertical moved from Detroit to the former Dana site 12 years ago but only after it received documentation ensuring Dana would take care of the environmental damage.

Walker aptly compares the situation to a poker game. “Everyone wants to bargain, but I’m the only one putting chips on the table, and that is frustrating. I think the city is there, but it’s futile without the participation of the county.”

Walker is also, admirably, showing all his cards. Univertical, a copper mill and chemical manufacturer, employs 55 and is ready to grow. The company is negotiating to buy its largest competitor, which is in North Carolina. Walker said his original intent was to buy that company and move those jobs to Angola. But this environmental issue is getting in the way of those negotiations and may force him to instead move his Angola operations to North Carolina, where government officials there are offering him about $950,000 to move.

Meanwhile, back in Indiana, government officials are asking him to pay to clean up major pollution caused by another company.

“I don’t have infinite resources to be the good corporate citizen we want to be,” Walker said. “I can only be part of the solution. I can’t be all of the solution.”

Not mentioned in anything I've read so far is the fact that Univertical will not be off the hook for cleanup costs of its property in Angola, even if it moves the plant to North Carolina.

Posted by Marcia Oddi on Saturday, January 10, 2009
Posted to Environment

Ind. Decisions - More on: Transfer sought in fire district case; recusal of Chief Justice requested

Updating this ILB entry from Oct. 8, 2008, re the case of Ronald Sanders, Paul Hardin, Dallas Kelp, et al. v. Board of Commissioners of Brown Co., In, et al., quoting a story in the Brown County Democrat that the attorney for the plaintiffs was asking:

that Chief Justice Randall T. Shepard recuse himself from the case, based on his participation as co-chair of the Indiana Commission on Local Government Reform, committee established by Governor Mitch Daniels to research the streamlining of local government.
Yesterday, Jan. 9th, according to the Clerk's Docket, the Supreme Court voted 4-0 to deny the appellants' petition to transfer. Chief Justice Shepard did not participate.

The Indiana Court of Appeals decision upheld the September 2007 creation of the fire district by the county's Board of Commissioners.

However, Laura Lane of the Martinsville Reporter-Times reported in a lengthy story on Jan. 7th that begins:

NASHVILLE

Brown County’s controversial consolidated fire protection district has gone up in flames — for now.

As their first official act of 2009, the county commissioners passed Resolution 01-01-09-01, which repeals the ordinance the previous commissioners voted in last year. The dissolution of the Brown County Fire Protection District happened during a special 6 p.m. meeting on New Year’s Day.

As it stands now, the county’s handful of independent volunteer fire departments are back on their own, funded by local township funds.

But on the heels of that action, seven residents who support and have fought for the consolidated fire department plan filed a lawsuit this week claiming the commissioners’ action violated the law.

Posted by Marcia Oddi on Saturday, January 10, 2009
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Court grants transfer in one of the two insurance cases argued Jan. 8

The Supreme Court heard oral arguments in two insurance cases Thursday - see details here.

The Court has voted to grant transfer in the case of Tri-Etch, Inc. v. Cincinnati Insurance Company.

The Court has denied transfer in the case of Allianz Insurance Company v. Guidant Corporation, by a vote of 4-1, with Justice Sullivan voting for transfer.

Watch for the transfer list, which should be available Monday, Jan. 12.

Posted by Marcia Oddi on Saturday, January 10, 2009
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Law - "West Lafayette looks to clarify 'ambiguous' code"

In Jerry M. and Patti A. Weida v. City of West Lafayette, IN, a 19-page opinion issued Dec. 2, 2008, Judge Riley wrote:

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.
(Emphasis added. See ILB summary here, 3rd case. For background, see this ILB entry from Oct. 4, 2008.)

Today Michael Malik has a long story in the Lafayette Journal Courier that includes the following:

West Lafayette city officials say they plan to make improvements to the city's overoccupancy ordinance so it's more user-friendly for landlords.

Mayor John Dennis said this week that he is going to form a committee made up of city officials, city council members and citizens to find how the current housing rules could be improved.

"The reason why we have guys out there doing proactive work with code enforcement is to make sure the neighborhoods are safe, that they're clean and the people that are renting property are doing so appropriately within compliance," Dennis said.

Patti Brown, president of RPM, a company that has rental properties in West Lafayette, said she thinks it's a good idea that the city improve the ordinance.

The city's code allows up to three unrelated people to live together in areas zoned residential. Up to four people are allowed to live in a dwelling zoned for apartments or businesses. Brown said she monitors her properties for overoccupancy.

"We tell our residents we are going to do random spot checks to make sure that that rule is not being violated," Brown said.

West Lafayette is examining ways to improve its rules after Indiana Court of Appeals Judge Patricia Riley, in a December ruling, called the city's ordinance "poorly written" and "highly ambiguous" in places.

The ruling stemmed from an appeal of the findings of Tippecanoe Superior Court 2 Judge Thomas Busch, who presided over a bench trial last year in which property owners and managers Jerry and Patti Weida 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.

Eric Burns, the city's attorney, said the main ambiguity the judge was referring to had to do with what the landlord's actual duties are.

The changes are "to be user-friendly for the landlords so if they have a suspected problem they know what they need to do," Burns said.

Burns said the current ordinance just tells landlords they have to monitor their units for possible overoccupancy, but doesn't lay out specific requirements.

Burns didn't lay out what those changes in the ordinance might wind up being.

Patti Weida said she would love to work with the city to revamp the ordinance, because right now the ordinance is not fair to anyone.

"This is what I always knew was going to happen," Patti Weida said. "It wasn't right from the start."

The Indiana Clerk of Courts Web site does not indicate that further action has been taken since the court of appeals' December ruling. Patti Weida declined to say whether she planned to appeal.

If the Weidas do not appeal to the Supreme Court, they likely will have to pay about $44,000 in fines that Busch ordered for the code violations, along with $1,500 for submitting false information and $1,404 toward the city's attorney fees.

Posted by Marcia Oddi on Saturday, January 10, 2009
Posted to Ind. App.Ct. Decisions | Indiana Government | Indiana Law

Ind. Law - Still more on: Political yard signs in the news again

Updating this ILB entry from Jan. 7th, Bruce C. Smith of the Indianapolis Star reports today under the headline "End in sight for sign lawsuit." Some quotes from the lengthy story:

A settlement is near on a federal lawsuit filed against Plainfield's ordinance that restricts the display of political campaign and candidate yard signs.

Attorneys in the suit were to meet Friday with U.S. District Court Judge William T. Lawrence to report on prospects for a settlement and the town's steps to repeal the controversial portion of the sign ordinance.

"I expect this suit to be settled," Plainfield town attorney Mel Daniel said Monday, when the Plan Commission agreed to delete wording in the sign control ordinance that limited the size and time period that political signs could be displayed.

Like many other Indiana cities and towns, Plainfield's ordinance limited the size of signs to a few square feet (about the size of an ordinary real estate "for sale" sign) and said they should not be displayed more than 30 days in advance of an election. * * *

Ken Falk, legal director of the American Civil Liberties Union of Indiana, which filed the suit, said "this was a clear violation of the First Amendment. Now, I fully expect the case (with Plainfield) to be resolved."

Falk and the ACLU already have settled two similar suits filed against Highland and Lebanon.

The city councils in both of those communities voted late last year to drop language in their sign control laws that had limited campaign signs. They also paid the legal costs of the ACLU.

Falk added, "With these suits and through other contacts, I hope to spread the word that every community should look into their (sign control) ordinances. And if they have these limits on the display of political signs, then they should amend (the ordinances) so we don't have to go through more lawsuits."

Posted by Marcia Oddi on Saturday, January 10, 2009
Posted to Indiana Government | Indiana Law

Friday, January 09, 2009

Ind. Decisions - More on: New trial ordered by judge in pollution suit against New Albany power plant that jury rejected

In this ILB entry from Jan. 4th, the ILB had obtained and provided a link to a now-unsealed 29-page Dec. 18th Order in the case of U.S. v. Cinergy, et al.

In the Order Judge McKinney granted Plaintiffs' Motion for a New Trial Due to Party Misconduct, or, in the Alternative, for Expedited Discovery and an Evidentiary Hearing. The Order was accompanied by this 5-page Order to Show Cause:

In an order dated December 18, 2008, this Court concluded that defendants, Cinergy Corp., PSI Energy, Inc., and The Cincinnati Gas & Electric Company (“Cinergy”), acting with and through their attorneys, committed misconduct during the liability phase jury trial in this matter. Specifically, the Court concluded that Cinergy and its lawyers committed misconduct when they failed to disclose a consulting agreement (the “Agreement”) Cinergy had entered into with one of its fact witnesses, Robert Batdorf (“Batdorf”); when they allowed Batdorf to testify at trial that he was unemployed and emphasized that misstatement in front of the jury; and when Cinergy relied on the misrepresentation as a theme during the trial.

Pursuant to Southern District of Indiana Local Rule 83.5(f), Southern District of Indiana Rule of Disciplinary Enforcement V, and the inherent authority of the Court, Cinergy and each one of its counsel of record as of May 5, 2008, shall appear before the Court to SHOW CAUSE why Cinergy’s counsel should not be suspended immediately from practice before this Court, and why Cinergy and its counsel should not be ordered to pay for plaintiff’s, the United States of America, and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, Hoosier Environmental Council, and Ohio Environmental Council (collectively, “Plaintiffs”), attorneys’ fees for bringing this matter to the Court’s attention through a Motion for New Trial. Each of Cinergy’s attorneys of record as of May 5, 2008, shall submit on or before Friday, January 9, 2009, a written statement of his or her knowledge of the Agreement including a date upon which such information was made known to him or her. [ILB emphasis]

Said Hearing to SHOW CAUSE is hereby SET for Tuesday, January 13, 2009, at 9:00 a.m., in Courtroom 202, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana.

The Clerk of the Court is directed to serve on all counsel for Cinergy who have withdrawn their appearance between May 5, 2008, and the date of this Order a paper copy of this Order and the above-referenced Order dated December 18, 2008, granting Plaintiffs' Motion for New Trial.

IT IS SO ORDERED this 18th day of December, 2008.

Today this 38-page Response to Order to Show Cause was filed. It begins:
This Court issued an Order to Show Cause requiring (1) counsel representing Cinergy as of May 5, 2008, to give “a written statement of his or her knowledge of the Agreement,” including the date upon which each attorney came to know of the Agreement,1 (2) Cinergy’s counsel to show cause why they should be allowed to continue to practice before this Court, and (3) Cinergy and its counsel to show cause why Cinergy and its counsel should not be ordered to pay certain attorneys’ fees for Plaintiffs and Plaintiff-intervenors (“Plaintiffs”). Cinergy respectfully responds to the Court’s Order, showing cause why Cinergy should not be sanctioned and why its attorneys as of May 5, 2008 should not be suspended from this Court. * * *

The Court therefore afforded Cinergy’s counsel the opportunity to explain by affidavit the extent of their knowledge and the basis for their actions. Those affidavits show, as explained in this Response, that each of Cinergy’s counsel acted reasonably, professionally, and in complete good faith, and none conducted himself or herself in a manner that merits sanctions. * * *

Attached to this response are the affidavits of each of Cinergy’s counsel of record as of May 5, 2008.

A footnote on pp. 4 and 5 lists counsel of record for Cinergy on May 5, 2008, and notes "Debra McVicker Lynch (statement filed separately)."

Here is that separately filed document.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Ind Fed D.Ct. Decisions

Courts - More on Courts - "Groups Urge High Court to Review Key Judicial Recusal Case" [Updated]

Marcia Coyle of The National Law Journal this week posted her second story on the case of Caperton v. Massey Coal, No. 08-22. Headed "Judges Urge High Court to Assure Recusals in Cases Involving Substantial Election Contributions," Wednesday's story reports:

Twenty-seven former chief justices and justices of 19 state supreme courts are urging the U.S. Supreme Court in a controversial West Virginia challenge to rule that a judge must recuse himself or herself from cases in which a party has made a substantial financial contribution to the judge's election.

"Substantial financial support of a judicial candidate -- whether contributions to the judge's campaign committee or independent expenditures -- can influence a judge's future decisions, both consciously and unconsciously," the former justices explain in an amicus brief filed in Caperton v. A.T. Massey Coal, No. 08-22.

"Amici believe that the only way to preserve a litigant's due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge's own partiality, but also when there exists a reasonable appearance of partiality or impropriety."

The high court will hear arguments on March 3 in the Caperton challenge, which stems from the refusal of acting Chief Justice Brent Benjamin of the West Virginia Supreme Court of Appeals to step aside from a multimillion-dollar appeal involving his major campaign contributor. * * *

In their amicus brief, authored by Charles Wiggins of Wiggins & Masters in Bainbridge Island, Wash., the former justices argue that due process does not require a judge to recuse from any case in which a party gave financial support to the judge's election.

"Rather, amici submit that due process is only triggered by substantial financial support for a judge's election," they contend, adding, "Amici do not believe it is necessary for the court to define specifically what constitutes substantial financial support. Suffice it to say that the massive financial support provided by respondent Blankenship to the election of Justice Benjamin triggers due process concerns under any reasonable definition of substantial financial support."

All 27 former justices, according to Wiggins, believe that Benjamin's participation in the coal company case appeal created an appearance of impropriety, and they would have recused themselves in similar circumstances.

Massey Coal's response on the merits and any supporting amicus briefs are due by the end of this month.

See earlier ILB entries here.

The ILB tracked down the "Brief for 27 Former Chief Justices and Justices in Support of Petitioner," to see if there was any Indiana connection. There did not appear to be.

But there were two others with evident Indiana connections, Brief for the Committee for Economic Development, Intel Corporation, the Lockheed Martin Corporation, PepsiCo, Wal-Mart Stores, Inc., the Defense Trial Counsel of Indiana, the Illinois Association of Defense Counsel, and Transparency International – USA in Support of Petitioner, and Brief for the Conference of Chief Justices in Support of Neither Party.

Counsel for Amicus Curiae in the latter brief includes George T. Patton, Jr., of Bose McKinney & Evans. See pp. 13-17 of the brief for an overview of the Chief Justices' position. Readers will recall that the Washington, D.C.-based attorney has represented Indiana’s judicial qualifications commission in several cases.

[Updated 1/10/09] And I just saw this from the Brennan Center, via Election Law Blog.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Courts in general

Ind. Courts - "Clark County judges seek new courtroom for magistrate"

Matt Thacker reports in the New Albany News & Tribune:

The judges of Clark County Circuit Court and Superior Court No. 1 came before the Clark County Commissioners on Thursday night to request space for a courtroom for a second magistrate.

“There’s always been a need for another magistrate’s courtroom, but the courts are getting busier,” Judge Vicki Carmichael said.

Carmichael suggested using superior court’s probation offices for the new courtroom and finding a new location for the probation offices.

Commissioner Ed Meyer said he would look into finding space in the building. Circuit Court Judge Dan Moore said the funding probably would come through the building authority.

“This will really help with the case load,” he said.

Commissioner Mike Moore said he understood the need for more space, but said the courts may need to help with funding.

Kenneth Abbott and Bill Dawkins are the two magistrates in the county. Carmichael said there have been times when one of the magistrates has to wait for a courtroom to open to hear a case.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Termination of the Parent-Child Relationship of: M.B. & S.B. (NFP) - Via a NFP the Court writes: "We reviewed these issues in a published memorandum decision and determined that the addendum was void. We then affirmed the trial court's denial of Mother’s motion to set aside. [see ILB summary here from 10/31/08] Mother subsequently filed a petition for rehearing. We affirm our opinion today but grant Mother’s petition for rehearing for the limited purpose of addressing Mother’s contention that, in failing to consider the transcript from the February 2008 motion to set aside hearing, this Court failed to consider a pivotal piece of evidence and in so doing made erroneous findings." [ILB - Does App.Rule 65(D) mean we may cite the original opinion, but not this denial of rehearing?]

In the Matter of A.S. and A.S., Jr. (NFP) - "The trial court’s judgment terminating Mother’s parental rights to A.S. and A.S., Jr. is supported by clear and convincing evidence. We therefore find no error. Affirmed. "

Shenandoah School Corporation v. Shenandoah Education Association, et al (NFP) - "The Shenandoah School Corporation (“School”) appeals the trial court’s denial of its motion to correct error and the trial court’s dismissal of its petition for judicial review of a decision by the Indiana Education and Employment Relations Board (“IEERB”) in favor of the Shenandoah Education Association, Darci Hill, and Adalu Gray (“Teachers”). The School raises one issue, which we restate as whether the trial court abused its discretion by denying the School’s motion to correct error and by granting the Teachers’ motion to dismiss due to the School’s failure to timely file the agency record. The Teachers raise one issue, which we restate as whether they are entitled to attorney fees under Ind. Appellate Rule 66(E). We affirm. "

NFP criminal opinions today (7):

Jennifer Kathy Mickel v. State of Indiana (NFP)

Raphael Raphlah v. State of Indiana (NFP)

Terrance Figueroa v. State of Indiana (NFP)

Dwayne Sparkman v. State of Indiana (NFP)

Nicholas Lyons v. State of Indiana (NFP)

Wayne R. Kaley v. State of Indiana (NFP)

Eliverio Gallegos v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Ind. App.Ct. Decisions

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

In Lloyd v. Swifty Transportation (SD Ind., Judge McKinney), a 17-page opinion, Judge Rovner affirms.

An opinion was originally issued Dec. 12, 2008 (ILB summary here), and withdrawn Dec. 15th (ILB entry here). The language in the first paragraph is the same in both opinions.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - "Courthouse Security Still Found Lacking"

Pamela A. MacLean reports today in The National Law Journal in a story that begins:

Three years after the murders of a Chicago federal judge's husband and mother, and the courthouse shooting of a Georgia state judge and his court reporter, judicial security in states remains fragmented and uneven -- and the bad economy may slow planned upgrades.

The shocking 2005 murders galvanized not only the federal judiciary, but also state court judges across the country, to begin re-examining security in courthouses and the personal protection of judges.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Courts in general

Ind. Courts - "Home Place annexation ruling may be years off"

Carrie Ritchie has a "where are we in this" story today in the Indianapolis Star. It begins:

Geist and Fishers have a preliminary decision on their annexation battle, but Carmel and Home Place could be years away from hearing a decision on theirs.

In December, Hamilton Superior Court 3 Judge William Hughes said he would not hear Carmel and Home Place's case until Fishers and Geist reached a decision that could not be appealed.

Geist residents announced they would appeal Hamilton Superior Court 1 Judge Steven Nation's ruling for Fishers on Dec. 31, the same day Nation issued his decision. It could take one or two more years for the case to be resolved.

But Home Place annexation opponents have not been deterred by the delay or Nation's ruling in the Geist case. They're in it for the long haul, said Matt Milam, president of Concerned Citizens for Home Place.

Here is a long list of other ILB entries involving annexation.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Indiana Courts

Environment - "Coal ash risks loom in Indiana"

Following on a lengthy list of ILB entries on power plant coal ash, the Indianapolis Star has now posted a long AP story by Dina Cappiello, under the headline "Coal ash risks loom in Indiana," that includes a valuable AP analysis. Some quotes:

WASHINGTON -- Millions of tons of toxic coal ash is piling up in power plant ponds in Indiana and 31 other states, a practice the federal government has long recognized as a risk to human health and the environment but has left unregulated.

An Associated Press analysis of the most recent Energy Department data found that 156 coal-fired power plants store ash in surface ponds similar to the one that collapsed last month in Tennessee.

Records indicate that states storing the most coal ash in ponds are Indiana, Ohio, Kentucky, Georgia and Alabama.

Indiana ranks at the top with 13 power plants storing 2,270,950 tons of coal ash in ponds. * * *

The AP's analysis found that in 2005, the most recent year data is available, 721 power plants generating at least 100 megawatts of electricity produced 95.8 million tons of coal ash. About 20 percent -- or nearly 20 million tons -- ended up in surface ponds. The remainder ends up in landfills, or is sold for use in concrete, among other uses.

Here is the chart, titled Coal ash in Indiana, that accompanies the story on the Star site.
Indiana power plants with coal ash ponds and the amount in tons stored, according to an Associated Press analysis of Energy Department data from 2005, the latest year statistics were available.

Alcoa Power Generating Inc. — Warrick County — 241,900 tons

Hoosier Energy R E C Inc. — Pike County — 39,800 tons

Indiana-Kentucky Electric Corp. — Jefferson County — 21,700 tons

Indianapolis Power & Light Co. — Marion County — 175,900 tons

Indiana Michigan Power Co. — Dearborn County — 140,600 tons

Indiana Michigan Power Co. — Spencer County — 11,800 tons

PSI Energy Inc. — Vermillion County — 210,900 tons

PSI Energy Inc. — Knox County — 11,500 tons

PSI Energy Inc. — Floyd County [Gallagher Station] — 125,600 tons

PSI Energy Inc. — Vigo County — 192,100 tons

PSI Energy Inc. — Gibson County [Gibson Station] — 897,800 tons

Southern Indiana Gas & Electric Co. — Warrick County — 35,600 tons

Southern Indiana Gas & Electric Co. — Posey County — 165,750 tons

____________

ILB - In reviewing the chart, recall this quote from a LCJ story Jan. 7th: "A 2007 EPA national study of coal combustion wastes identified at least eight coal ash impoundments in Indiana, including one at Duke Energy’s Gallagher plant in New Albany, Ind. Indiana Department of Environmental Management spokesman Rob Elstro(cq) could not confirm that number because he said his agency does not maintain a comprehensive list." Also here.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Environment

Ind. Courts - Vanderburgh County judge delays Hatch Act ruling

Following on a lengthy list of earlier ILB entries on the application of the Indiana Hatch Act, Thomas B. Langhorne reports today in the Evansville Courier & Press:

The next move in a Vanderburgh County Republican Party lawsuit seeking to oust a newly elected Democratic officeholder is to wait.

Pending the outcome of a guiding case in Terre Haute, Ind., a local judge Thursday delayed indefinitely his ruling on whether County Commissioner Steve Melcher was ineligible to seek office last year under the Little Hatch Act. * * *

The Indiana Court of Appeals decided that Terre Haute Mayor Duke Bennett was prohibited from seeking office in 2007 under the Little Hatch Act, when he beat former Mayor Kevin Burke. Bennett was director of operations from 2005 until 2007 at the Hamilton Center, which operated a federally funded Head Start program.

Bennett was more involved with federal money at the Hamilton Center than Melcher is at CAPE, [Melcher's attorney, Rob Faulkner] said.

The attorney pointed to a section of the Indiana Court of Appeals' ruling against Bennett saying Bennett "approved specific projects, work orders and contracts for the Head Start program."

"Mr. Melcher does none of that," Faulkner said.

After the testimony and closing statements, Judge Carl Heldt said the Burke-Bennett case awaits a decision from the Indiana Supreme Court on whether it will hear appeals of the lower court's ruling.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Title IV-D Court moving to Vigo Community Corrections building"

A story today by Howard Greninger of the Terre Haute Tribune-Star begins:

Title IV-D Court, which deals with cases of non-payment of child support, will be moved from Terre Haute City Hall to the Vigo County Community Corrections Building into a former temporary courtroom.

The courtroom, built during interior renovation of the county courthouse, had been used for Vigo County Superior Court Division 2. With renovation complete, Division 2 court has been moved back into the courthouse. County Commissioner Paul Mason said the move will allow the IV-D court to remain open for longer hours.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Indiana Courts

Ind. Courts - "Gary court, clerk fight for jobs"

That is the headline to this story today by Christine Kraly of the NWI Times.

GARY | A pair of officials integral to Gary's legal system are asking to keep their jobs as budget cuts loom.

Gary City Clerk Suzette Raggs and City Court Judge Deidre Monroe denounced the potential ax looming over the city's court. To transfer the city's cases to the county would be an impossible feat, they said.

"I don't want to be the last judge in Gary City Court," Monroe said Thursday.

Gary officials have pleaded to the Indiana Distressed Unit Appeals Board for relief from new tax caps that threaten to pluck $30.3 million from the city's 2009 budget.

In its downstate plea, the city proposed four years of alternate budget cuts, including $6 million in 2012, when the city would eliminate the City Court.

According to Monroe, only the Gary City Council has the power to create or eliminate the court.

Abolishing the court would mean the clerk would only handle City Council business, prompting a staff level drop from the current 42 to possibly a maximum of 10, the city's board petition states.

"While our city is undeniably in a fiscal crisis, the petition package that has been presented contains eliminations and reductions that would literally be catastrophic for the citizens of Gary," Raggs said in a statement.

The court and clerk process 20,000 new cases a year, with 70,000 pending cases, the women said.

"It is impossible to pass that on (to another department)," Monroe said.

Gary shuttered its jail this month, a move embraced by appeals board members but deemed "a nightmare" by Monroe.

Lake County Sheriff Rogelio "Roy" Dominguez has said the move, which should bring between 60 and 100 detainees a week to the Lake County Jail, could cost county taxpayers $2 million a year.

Posted by Marcia Oddi on Friday, January 09, 2009
Posted to Indiana Courts

Thursday, January 08, 2009

Courts - 4th Circuit throws out law allowing the federal government to place in indefinite civil commitment "sexually dangerous" persons

Thanks to Howard Bashman's How Appealing for reporting today's decision of the 4th Circuit, which begins:

This case presents the question of whether a newly-enacted federal statute—18 U.S.C. § 4248 (2006)—lies within Congress’s power. Section 4248 purports to allow the federal government to place in indefinite civil commitment "sexually dangerous" persons, granting the federal government unprecedented authority over civil commitment—an area long controlled by the states. The district court held that § 4248 exceeds the limits of congressional power and intrudes on the powers reserved to the states. The Government now appeals.

We are the first appellate court to address this question, but the issue has divided trial courts across the nation. Compare United States v. Tom, 558 F. Supp. 2d 931, 938, 941 (D. Minn. 2008) (holding that Congress lacked authority to enact § 4248), and United States v. Comstock, 507 F. Supp. 2d 522, 540 (E.D.N.C. 2007) (same), with United States v. Abregana, 574 F. Supp. 2d 1123, 1133-34 (D. Haw. 2008) (holding that Congress had authority to enact § 4248), United States v. Dowell, No. CIV-06-1216-D, 2007 WL 5361304, at *7 (W.D. Okla. Dec. 5, 2007) (same), United States v. Shields, 522 F. Supp. 2d 317, 328 (D. Mass. 2007) (same), and United States v. Carta, 503 F. Supp. 2d 405, 407-08 (D. Mass. 2007) (same).

Two fundamental principles guide our inquiry. On one hand, respect for the legislative branch demands that we afford congressional enactments a "presumption of constitutionality." United States v. Morrison, 529 U.S. 598, 607 (2000). But on the other, we must invalidate an act of Congress on a "plain showing" that Congress has exceeded its constitutional authority. Id.

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. We therefore affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Courts in general

Ind. Law - Abraham Lincoln: His Legal Career and His Vision for America

The Seventh Circuit Bar Association is offering an exceptional CLE opportunity on Friday, Feb. 6th - Abraham Lincoln: His Legal Career and His Vision for America.

It will be held at the Chicago Cultural Center. But a LIVE webcast of this program will be available at the ICLEF Conference Facility here in Indy.

The CLE is 4.6 hours. Prices are $45 for non-members of the Seventh Circuit Bar Association, $25 for members. Click here to see the outstanding program, and to register.

(Remember the time difference - our times in Indianapolis are an hour later than those on the agenda.)

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Indiana Law

Ind. Gov't. - More on: "Attorney perks irk board member"

Updating this ILB entry from Dec. 11th, the Gary Post Tribune has an editorial today headed "End health insurance for school attorneys." Some quotes:

Portage School Board member Cheryl Oprisko is right when she argues the School Board attorney should not receive retirement benefits.

Her challenge of the request for benefits also raises the issue of school board attorneys receiving health insurance as a part of compensation.

Those Indiana school districts that offer such a perk to attorneys should end the practice.

Some in education -- and their attorneys -- argue that health insurance is just part of the compensation package.

But they fail to note that attorneys are contracted employees, not full- or even part-time employees. * * *

Going further, taxpayers should question their respective school boards as to why school board members receive the same insurance as employees.

Certainly, they see it as a benefit in lieu of higher pay or per diems.

But it also serves as a conflict of interest.

When school boards should be working to represent the interests of taxpayers, they ought to be fighting for reasonable insurance packages.

Instead, they receive the favor of the same benefit they should be negotiating -- and the same argument applies to board attorneys.

In these leaner times, every line item needs more scrutiny.

This seems like an easy decision. Health insurance goes only to those who are employees.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Indiana Government

Environment - Still more on: "Ex-Dana site fueling fears; Angola eyes cleanup plan"

Updating this ILB entry from yesterday, Becky Manley reports today in the Fort Wayne Journal Gazette under a headline that pretty much says it all: "No deal struck on Dana site cleanup: Univertical vows to leave Angola if forced to pay."

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Environment

Ind. Decisions - No Indiana decisions, but a rare Chapter 12 bankruptcy opinion

From the opinion:

Chapter 12 bankruptcy was created “to give family farmers facing bankruptcy a fighting chance to reorganize their debts and keep their land.” In re Wiese is a 14-page opinion by Judge Tinder, who writes:
When the Wieses defaulted on the loan repayment, the Bank commenced foreclosure and replevin actions in state court on the collateral in which the Bank held security interests. The Wieses then filed for Chapter 12 bankruptcy, a voluntary type of bank- ruptcy specifically designed for family farmers. As part of the Wieses’ confirmed plan of bankruptcy, the Wieses and the Bank made certain concessions, one of which (and the reason for this appeal’s existence) required the Wieses to release their purported “lender liability” claims against the Bank, arising from the Bank’s advice in con- nection with the loan and the construction of the barn. The Wieses later decided to have the bankruptcy case dismissed, as they had a statutory right to do—but the bankruptcy court determined that there was “cause” for the terms of the confirmed plan to remain binding on the parties. The Wieses appealed to the district court, which reversed the decision of the bankruptcy court. Now the Bank appeals from the district court’s decision, and the Wieses seek sanctions against the Bank for bringing this appeal. * * *

The bankruptcy court’s decision that there was “cause” for the terms of the confirmed plan to remain binding on the parties was within its discretion; therefore, we REVERSE the decision of the district court, and we DENY the Wieses’ motion for sanctions.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Ind. (7th Cir.) Decisions

Law - Obama appoints Cass Sunstein as head of the Office of Information and Regulatory Affairs

Some quotes from this story by Jonathan Weisman and Jess Bravin in the Wall Street Journal:

Cass Sunstein, a Harvard Law School professor * * * a friend of President-elect Barack Obama from their faculty days at the University of Chicago law school, will mark a sharp departure for the White House Office of Information and Regulatory Affairs. Although obscure, the post wields outsize power. It oversees regulations throughout the government, from the Environmental Protection Agency to the Occupational Safety and Health Administration. Obama aides have said the job will be crucial as the new administration overhauls financial-services regulations, attempts to pass universal health care and tries to forge a new approach to controlling emissions of greenhouse gases.

Under President George W. Bush, the office has been dominated by administrators with a strong deregulatory bent. Activists saw it as the place where environmental, workplace safety, consumer products and other areas of regulation often stalled or died.

Readers may remember the predecessor to the Office of Information and Regulatory Affairs, the Council on Competitiveness, chaired by then-Vice President Dan Quayle. David McIntosh, was the Council's executive director, succeeding Al Hubbard.

[More] Adding perspective to what is most assuredly "a sharp departure," this April 18, 2006 ILB entry on McIntosh and the 1996 Congressional Review Act.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to General Law Related

Ind. Courts - More on "Madison Co. prosecutor denies alleged misconduct"

More today on yesterday's ILB entry on the complaint filed by the Indiana Supreme Court Disciplinary Commission against Madison County Prosecutor Thomas J. Broderick Jr. -- Shawn McGrath has this report in the Anderson Herald Bulletin. The story includes links to the Commision's complaint, Broderick's response, and the letter at issue. A few quotes from the story:

ANDERSON — Madison County Prosecutor Thomas J. Broderick Jr. claims in a response to a complaint filed by the Indiana Supreme Court Disciplinary Commission that he was not acting as his son’s attorney when he sent a letter to Florida prosecutors following the son’s arrest for battery. * * *

The Disciplinary Commission alleges Broderick committed professional misconduct when he acted as Evan’s attorney and signed a deferral agreement with the Delaware County Prosecutor’s Office in 2003 after Evan was arrested for allegedly driving drunk. The complaint claims Broderick engaged in wrongdoing by not disclosing Evan’s earlier arrest in Florida. Broderick was not then prosecutor of Madison County.

“A reasonable attorney would have known that there was a high degree of probability that Evan’s past arrest and resolution of his Florida case would be relevant to a prosecutor’s exercise of discretion to allow deferral or diversion of his case in Delaware County,” the complaint reads. “Under these circumstances, by knowingly signing the agreement as Evan’s attorney without reading it and without taking appropriate steps to verify that the document he was signing was truthful, (Broderick) acted with such willful blindness and recklessness as to constitute knowing conduct.”

Under the terms of the deferral agreement, Broderick stipulated that Evan had no prior arrests, which would have made him ineligible for the deferment, according to the complaint. The OWI charge against Evan was never filed after he successfully completed the terms of the agreement, according to the complaint. There are no allegations of wrongdoing against Evan, currently a deputy prosecutor in Madison Superior Court 5, from the Disciplinary Commission. * * *

In his response to the discipline complaint, Broderick “explicitly denies knowingly misrepresenting his son’s alleged criminal history to obtain the benefits of deferred prosecution (in Delaware County).”

Broderick goes on to state that, in both instances, he was acting as Evan’s father and not his attorney, and the rules of professional conduct didn’t apply. If the court determines that he was acting as Evan’s attorney, then he claims attorney-client privilege. He also claims the legal defense of mistake of fact, meaning it was an unintentional error.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Indiana Courts

Envirtonment - More on coal ash; costs of coal-gasification

Coal ash. James Bruggers of the Louisville Courier Journal has a report today that begins:

Coal ash ponds at several power plants in Kentucky and Indiana held some of the nation's highest amounts of six potentially toxic heavy metals, according to a report released yesterday by the Environmental Integrity Project. * * *

Duke Energy's Gibson plant in Gibson County, Ind., reported quantities of chromium, lead, nickel and thallium in its ash ponds that were among the top four in the country. The sixth metal tracked was selenium.

The complete report of the Environmental Integrity Project may be accessed here.

Coal-gasification. Rick Callahan of the LCJ reports today under the headline: "Duke Energy gets OK to pass on costs." Some quotes:

INDIANAPOLIS -- A state panel yesterday approved Duke Energy's request to pass along to Indiana customers the higher cost of its coal-gasification power plant under construction in southwestern Indiana.

In May, Duke Energy asked the Indiana Utility Regulatory Commission to approve the Edwardsport plant's higher cost, saying the project's estimate had risen $365 million to $2.35 billion, largely due to the rising costs of materials and labor. * * *

Duke Energy, based in Charlotte, N.C., expects the cost of building the 630-megawatt plant to result in an 18 percent rate increase for its customers phased in over the next five years.

The plant, being built along the White River, will convert coal into a synthetic gas that is processed to remove pollutants such as mercury and sulfur dioxide.

That gas will then be burned in turbines to produce electricity, while heat from that process is tapped to create steam that generates power in separate steam turbines.

"When it's completed, this will be one of the cleanest, most efficient coal-fired plants in the world," Duke Energy Indiana President Jim Stanley said in a statement.

Environmental and government-watchdog groups oppose the plant and have sued to try to halt it, calling the project a waste of money that would be better spent on renewable energy such as wind farms. They also warn that its price tag could go even higher if Congress imposes caps on carbon-dioxide emissions linked to global warming.

The plant, which is expected to begin operations in 2012, will release an estimated 4 million tons of carbon dioxide annually.

Yesterday, the commission also approved Duke Energy's $17 million plan to study the plant's potential to capture a portion of its carbon-dioxide emissions as part of the company's proposal to possibly store the gas permanently deep underground.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Environment

Ind. Law - "Lending system wracked with issues"

Bryan Corbin of the Evansville Courier & Press has good coverage today of yesterday's Indiana house committee hearing on Indiana's high rate of forclosures.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to General Law Related

Ind. Decisions - More on: Upcoming oral arguments this week

Don't forget, the Supreme Court hears three oral arguments this morning, including two highly-lawyered insurance cases. Read more here. Watch here.

Posted by Marcia Oddi on Thursday, January 08, 2009
Posted to Upcoming Oral Arguments

Wednesday, January 07, 2009

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

Updating this ILB entry from Dec. 29, 2008, Chris Morris reports today in the New Albany News & Tribune. Some quotes:

Judge Maria Granger is still trying to get used to her new title, but not the job that awaits her on the fourth floor of the City-County Building.

Granger officially opened Floyd County’s new court — Superior Court No. 3 — Monday morning. Her fourth-floor office and new court are nearly complete, and her staff of four is in place. On Jan. 20, she will conduct her first session. * * *

The court will be the first in the building to work with Odyssey, a new state judicial program, Granger said. Superior Court No. 3 will work with domestic cases and protective orders. The court also will handle 25 percent of C felony or above cases, and 33 percent of the murder cases in the county.

Superior Court No. 2 Judge Glenn Hancock will have the outside wall of his court replaced with a soundproof one once work on Granger’s court is complete.

“You can hear everything out in the hallway. Just normal conversation,” Hancock said of the current wall.

Hancock was one of the visitors to wish Granger well Monday morning. He said a new court should help ease the case load.

“It’s bound to help,” he said. “I think the jail overcrowding is due to people waiting for trial. I hope the new court will help quickly.”

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Indiana Courts

Ind. Courts - More on: Court of Appeals of Indiana will begin webcasting most oral arguments held in its Statehouse courtroom

In answer to the ILB question yesterday re the announcement of new Court of Appeals webcasts:

The news release is silent, however, on whether the webcasts will be archived for on-demand viewing, as are those webcast from the Supreme Court Courtroom.
I've received this helpful response from Chief Judge Baker's office:
I confirmed that our archiving system will be exactly same as the Supreme Court's archiving. I think we'll be using exactly the same system/software/general plan. FYI, today's argument isn't a live webcast but it's being recorded and will be put on the website at some point. I believe that after today, the arguments will be live.
The latter is in reference to today's oral argment in the case of Larry Cox vs. Allen Matthews, which is indicated as being webcast on the COA calendar.

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Indiana Courts

Environment - Still more on: "Spill renews debate over coal ash: Toxicity, slurry pond safety are questioned" [Updated]

Updating earlier ILB entries, including this latest from Dec. 30th, 2008, James Bruggers reports today in the Louisville Courier Journal. Here are some quotes from the long story, with emphasis added by the ILB:

As Congress goes back to work this week, the head of the House Committee on Natural Resources, Nick Rahall of West Virginia, has promised to hold hearings and legislation to make coal-ash ponds safer.

At issue is a massive spill on Dec. 22 that sent more than 1 billion gallons of ashy sludge over 300 acres of eastern Tennessee, knocking down homes and polluting water. It’s raising questions about the appropriate response by federal lawmakers.

“It seems to us there’s a regulatory gap,” said Jim Zoia, a senior aide to Rahall, and the committee’s chief of staff.

On Thursday the Senate is due to get involved when its Environment and Public Works Committee is to hold a hearing.

Sen. Mitch McConnell, R-Kentucky, and the Senate minority leader, “is concerned about the impact this spill had on the families in Tennessee and believes it needs to be examined,” said his spokesman, Robert Steurer. “He is currently monitoring the situation and plans to review the comments received at this week’s Senate hearing.” * * *

The issue is important to Kentucky and Indiana. A 2006 Department of Energy and Environmental Protection Agency study put Kentucky atop the nation in production of ash and other wastes from burning coal, with Indiana third. The two states produce millions of pounds of ash, which can contain concentrations of potentially risky heavy metals.

There are no federal standards governing the disposal of coal combustion wastes. The federal government also doesn’t regulate how coal ash impoundments are designed, and how frequently they should be inspected.

Zoia said Rahall will explore whether the ash ponds could be regulated similarly to impoundments of another type of coal waste – slurries and sludge from coal mining operations. Coal mining slurry impoundments are regulated under the Surface Mining Control and Reclamation Act, which has specific requirements for design, construction, maintenance and inspections, he said.

Regulation of ash ponds is essentially left to states.

A 2007 EPA national study of coal combustion wastes identified at least eight coal ash impoundments in Indiana, including one at Duke Energy’s Gallagher plant in New Albany, Ind. Indiana Department of Environmental Management spokesman Rob Elstro(cq) could not confirm that number because he said his agency does not maintain a comprehensive list.

He was still researching yesterday afternoon whether any Indiana agencies have design and construction standards for coal ash impoundments.

Kentucky has 19 ash ponds at coal-fired plants, Kentucky regulators said last week. Twelve feature some sort of dam, as is the case at the Tennessee Valley Authority’s Kingston plant, site of the Dec. 22 environmental disaster.

[More] Here is a lengthy story by Shaila Dewan,from the front-page of today's NY Times, headed "Hundreds of Coal Ash Dumps Lack Regulation." Some quotes:
The coal ash pond that ruptured and sent a billion gallons of toxic sludge across 300 acres of East Tennessee last month was only one of more than 1,300 similar dumps across the United States — most of them unregulated and unmonitored — that contain billions more gallons of fly ash and other byproducts of burning coal.

Like the one in Tennessee, most of these dumps, which reach up to 1,500 acres, contain heavy metals like arsenic, lead, mercury and selenium, which are considered by the Environmental Protection Agency to be a threat to water supplies and human health. Yet they are not subject to any federal regulation, which experts say could have prevented the spill, and there is little monitoring of their effects on the surrounding environment.

In fact, coal ash is used throughout the country for construction fill, mine reclamation and other “beneficial uses.” In 2007, according to a coal industry estimate, 50 tons of fly ash even went to agricultural uses, like improving soil’s ability to hold water, despite a 1999 E.P.A. warning about high levels of arsenic. The industry has promoted the reuse of coal combustion products because of the growing amount of them being produced each year — 131 million tons in 2007, up from less than 90 million tons in 1990. * * *

Just last week, a judge approved a $54 million class-action settlement against Constellation Power Generation after it had dumped coal ash for more than a decade in a sand and gravel pit near Gambrills, Md., about 20 miles south of Baltimore, contaminating wells. And Town of Pines, Ind., a hamlet about 40 miles east of Chicago, was declared a Superfund site after wells there were found to be contaminated by ash dumped in a landfill and used to make roads starting in 1983.

Here is more on the Pines Ground Water Plume Site, from EPA Region 5. (Sadly, this is less than 2 miles from where I grew up.)

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Environment

Ind. Law - More on: Political yard signs in the news again

Updating this ILB entry from Aug. 8, 2005, Bruce C. Smith reports today in the Indianapolis Star, under the headline "Plainfield, Lebanon will drop rules on political yard signs: Lebanon, Plainfield, Highland had faced federal lawsuits." The story begins:

Faced with federal lawsuits over free-speech issues, three communities have decided to drop their rules about the display of yard signs promoting political candidates.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, which filed the suits, said the local ordinances tried to curtail one of the purest forms of free speech.

Many cities and towns in the state adopted similar laws years ago to curtail the visual clutter of yard signs during campaign season and to treat candidates equally.

In many communities, the ordinances say election signs may be no larger than a real estate "for sale" sign and may not be displayed more than 30 days before of an election.

In September, as the race for president was heating up in Indiana, the ACLU sued three communities -- Plainfield and Lebanon in metropolitan Indianapolis, and Highland near Chicago -- when local officials attempted to enforce their rules on yard signs.

All three suits were triggered by complaints to the ACLU by supporters of Democratic nominee Barack Obama after the local governments removed their yard signs or asked that they be removed.

Falk said Tuesday that the suits against Highland and Lebanon have been settled. Both city councils voted late last year to delete the controversial wording from their sign control laws and agreed to pay attorney fees and other costs sought by the ACLU.

Lebanon now limits the size of political signs to the same as any other signs allowed in a residential neighborhood: 32 square feet, or the size of a sheet of plywood.

Plainfield officials are going through a series of public votes this month to accept the same deal.

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Indiana Law

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0):

Tierre Moore v. State of Indiana (NFP) [ILB Correction: this was posted 1/6/09]

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Dec. 31st, 2008, Becky Manley reports today in the Fort Wayne Journal Gazette:

The cleanup of a contaminated industrial site in Angola will be discussed by city and Steuben County officials during a special meeting today.

It will be the second time this week that city and county officials have discussed the costly cleanup of the former Dana Corp. site at 203 Weatherhead St.

Today’s meeting will include county commissioners and council members as well as City Council members. Angola Mayor Richard Hickman said he expects officials will discuss how the cleanup cost might be divided among the entities.

The flurry of meetings is prompted in part because of the likelihood that when Dana’s bankruptcy proceedings come to a close in late January, the company will shut down a hydraulic system that prevents contaminated groundwater and oils from reaching Angola’s city water supply.

The Indiana Department of Environmental Management will take over operation of the hydraulic system, which costs more than $100,000 annually, not including the cost of needed upgrades, according to Amy Hartsock public information officer for the Indiana Department of Environmental Management.

“There are indications that that pump-and-treat is not enough to address the contamination that is coming from that site,” Hartsock said.

According to IDEM, while the existing hydraulic system may have slowed the spread of pollution from the site, a water test conducted in October may have showed the presence of trichloroethene, a chlorinated solvent.

The test is being repeated to verify its accuracy, and both Hickman and IDEM have said Angola’s water supply remains safe.

Exposure to TCE can cause eye or skin irritation, headache, visual disturbance, weakness, dizziness, tremor, drowsiness, nausea, vomiting, dermatitis, cardiac arrhythmias or liver injury, according to the Web site for the National Institute for Occupational Safety and Health.

IDEM records indicate the contaminated soil at the site is spreading to the groundwater, and air and soil vapors may seep into nearby buildings.

The projected cleanup cost ranges from about $5.5 million to about $7.5 million and, when Dana’s involvement ends, financial responsibility for the cleanup will fall to the current property owner, Hartsock said.

Univertical Corp., which employs about 55 people, operates at the site, and officials fear the company might close its Angola plant and move operations out of state if it is forced to shoulder the entire cleanup cost.

As part of the bankruptcy settlement, the state may receive 300,000 shares of Dana stock that will go toward the cost of the cleanup, Hartsock said. An IDEM report says Dana shares have recently traded between 70 cents and $12. The stock ended trading Tuesday at $1.06.

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Environment

Ind. Decisions - More on: Court of Appeals nullifies 2007 mayoral election; Bennett, Burke both file appeals

Updating this ILB entry from Dec. 16, 2008, Arthur Foulkes of the Terre Haute Tribune-Star reports today in a story that begins:

The duel for control of Terre Haute’s City Hall continued this week with the filing of yet another legal brief in the ongoing case of Burke v. Bennett.

Late Monday, attorneys for Mayor Duke Bennett filed a response to former Mayor Kevin Burke’s Dec. 12 request to advance the case to the Indiana Supreme Court.

Both Bennett and Burke requested the Supreme Court hear the case after the Indiana Court of Appeals ruled in November that neither man was eligible to sit as mayor. The court also called for a special election to settle the matter. Bennett filed his request on Dec. 15 to move the case to the Supreme Court.

Burke’s side now has 13 days to respond to Bennett’s Jan. 5 response, said Brian Babb, an attorney for Bennett. Burke’s attorney, Ed DeLaney, said he will file Burke’s response to Bennett’s Dec. 15 petition for transfer to the state Supreme Court today. Bennett will then have 13 days to respond to that brief.

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Officials unveil Vigo County Courthouse renovation"

Updating this Aug. 2, 2008 ILB entry that included a quote from the Terre Haute Tribune-Star that began "Nearly four years and more than $13 million later, the 19th century Vigo County Courthouse’s 21st century renovation is complete," today the Trib-Star's Howard Greninger reports, in a lengthy story:

More than $1.8 million required to pay final bills as part of a $14.3 million courthouse renovation project was unanimously approved Tuesday by the Vigo County Council, but not without debate.

“I just hate to take people’s money that we have set aside for health and pay for a courthouse,” said Councilman Brad Anderson, R-4th.

Commissioners sought approval from the council to transfer more than $1.81 million from group insurance in the 2009 county budget to a new established budget line item called Courthouse Renovation. * * *

Councilman Darrick Scott, D-2nd, said that the council has no alternative but to use funds appropriated in this year’s budget. He moved to transfer the funds to pay off the courthouse renovation expense. * * *

Councilman Tim Curley, D-1st, said the council had not been informed of additional costs.

“I would hope that this would never happen again with the county commissioners not communicating with the council and putting us on the hot seat,” Curley said.

David Decker, president of the Vigo County Board of Commissioners, said the county has a responsibility to pay contractors for the courthouse renovation. Decker, who as a first-term commissioner said he was not involved in the start of the project, said he found documents dating back to July 2006 showing a $3.1 million deficit in funding for the courthouse project.

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Indiana Courts

Ind. Courts - "Madison Co. prosecutor denies alleged misconduct"

An AP story today begins:

ANDERSON, Ind. - Madison County Prosecutor Thomas J. Broderick Jr. denies that he committed misconduct when he got a criminal charge dismissed against his son before he took office.

The Indiana Supreme Court Disciplinary Commission alleges that Broderick committed professional misconduct by failing to tell Indiana authorities that his son had previously been arrested in Florida when he entered him in a court deferral program.

A hearing was set for Wednesday in Grant Superior Court 1.

The complaint filed in October alleges that Broderick failed to disclose the previous arrest when he signed a deferral agreement with the Delaware County prosecutor's office in 2003 after his son Evan Broderick was arrested on a drunken driving charge. After completing terms of the agreement, Evan Broderick was never charged.

Posted by Marcia Oddi on Wednesday, January 07, 2009
Posted to Indiana Courts

Tuesday, January 06, 2009

Ind. Decisions - Still more on "Judge gives reprieve to Hoosier Energy"

The 7th Circuit heard oral argument yesterday in the case of Hoosier Energy v. John Hancock (08-4030). You can heard the argument here. See earlier ILB entries from Nov. 26, 2008, Dec. 12, 2008, and Dec. 20, 2008.

Early into yesterday's oral argument (at about 3:40), one of the 7th Circuit judges describes the purpose of yesterday's argument: "here is this complicated transaction that has taken place, and for reasons that probably have a lot to do with the credit markets, it is unraveling, and what the district court was asked to do was make sure that the litigation could go forward in a way that would best protect any number of possible outcomes ... , and so we are here to review whether, as we have now modified it, this preliminary injunction is an acceptable way to do that, was that an abuse of discretion, so I guess I'm a little worried about getting too far into the merits of the underlying deal."

The only press report I've seen on yesterday's argument, in a case of potentially tremendous implications to Hoosiers, is this one from Eoin Callan of the Financial Post. Some quotes:

Canada's largest insurer on Monday turned to a U.S. court to force a rural electricity cooperative in Indiana to make an immediate US$120-million payment under the tax avoidance scheme in a move that would force the non-profit utility into bankruptcy.

The windfall would provide Manulife with a cash injection at a time when its U.S. subsidiary, John Hancock Financial, is draining capital from the parent company because of heavy exposures to volatile financial markets and is being claimed early because of a slip in the credit rating of one of the parties to the controversial transaction.

But the aggressive move is inciting fury on Capitol Hill, where influential members of Congress say the company is exploiting a legal loop hole to claim money it is not legitimately entitled to given recent findings that the underlying tax scheme is abusive. * * *

At the heart of the fractious dispute that could jeopardize the power supply to 350,000 homes in the U.S. heartland is an opaque tax scheme that briefly gained popularity a few years ago among accountants working on behalf of insurers and banks with an appetite for risk. * * *

While Hoosier has never faltered in its commitments to Manulife under the deal, the financial guarantor -- Ambac -- has seen its credit rating downgraded amid the credit crisis along with many backers of so-called credit default swaps.

Manulife has seized on the change in the credit rating to claim a $120-million payment under the credit default swap for "early termination," allowing it to collect the tax benefits upfront.

Lawmakers and a lower Indiana court [ILB - SD Ind.] have dismissed this as a technical default given the guarantor is still backing the deal and Manulife could not reasonably expect to enjoy the tax benefits anticipated when the original deal was struck.

Hoosier argued before an appeal court [ILB - 7th Cir.] on Monday that the claim by Manulife combined "some of the worst aspects of modern finance" that "combines the sometimes toxic intricacies of credit default swaps and investment derivatives with a blatantly abusive tax shelter."

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "After shooting, LaPorte County judge sworn in"

Updating this entry from Jan. 1st and this one from Dec. 30th, the South Bend Tribune reports today in a story that begins:

LAPORTE — Jennifer Evans presided over her first criminal case Monday as judge in LaPorte Superior Court 3 two weeks after being shot.

She was sworn into office Wednesday, and a courtroom official reported before Evans took the bench at 10 a.m. Monday that "she's fine."

Meanwhile, St. Joseph County Prosecutor Michael Dvorak on Friday accepted a request by the LaPorte County prosecutor's office to conduct an independent review of the evidence in the case, to avoid any appearance of impropriety.

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

In Term. of Parent-Child Rel. of D.L. and K.L.; and H.L.I. v. Vanderburgh Co. Dept. of Child Services (NFP), an 8-page opinion, Judge Crone writes:

On appeal, H.L.I. contends that the juvenile court erred in terminating her parental rights. H.L.I. does not challenge any of the court‟s findings or conclusions. Rather, she asserts that the court‟s refusal to grant her yet another continuance violated her due process rights and constitutes reversible error. We disagree.
[T]he ruling on a non-statutory motion for a continuance is within the sound discretion of the trial court. Discretion is a privilege afforded a trial court to act in accord with what is fair and equitable in each circumstance. A decision on a motion for continuance will be reversed only upon a showing of an abuse of discretion and prejudice resulting from such an abuse.
J.M. v. Marion County Office of Family & Children, 802 N.E.2d 40, 43 (Ind. Ct. App. 2004) (citations omitted), trans. denied.
NFP criminal opinions today (1):

Tierre Moore v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals of Indiana will begin webcasting most oral arguments held in its Statehouse courtroom

From a news release:

Starting in January, the Court of Appeals of Indiana will begin webcasting most oral arguments held in the Statehouse Court of Appeals courtroom. Additionally, the oral arguments will be televised on-site on a monitor outside of the courtroom.

The Court of Appeals has a long history of outreach to local communities through its traveling oral argument schedule in an effort to show communities the oral argument process. Webcasting oral arguments is another way the Court is reaching out to local communities. That program has resulted in over 200 traveling oral arguments since 2000.

“We hope to give the public another opportunity to learn about the issues confronting the Court of Appeals,” said Chief Judge John Baker. “Webcasting enhances our on-going outreach program.”

The use of a television monitor during oral arguments will be standard practice unless a majority of the 3-Judge panel hearing the argument determines not to do so. The oral arguments will be televised on a television monitor that shall be placed outside the courtroom.

Webcasting of oral arguments at the Statehouse Court of Appeals courtroom will also become standard practice unless a majority of the 3-Judge panel determines not to do so. A notice of the webcasting will be given to the parties at the time the argument is set.

Note: This now includes the oral argument this week in the case of Larry Cox vs. Allen Matthews.

The news release is silent, however, on whether the webcasts will be archived for on-demand viewing, as are those webcast from the Supreme Court Courtroom.

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to Indiana Courts

Ind. Decisions - Should Indiana law ban the execution of the mentally ill?

Using the 7th Circuit decision Dec. 31st as an example, the Fort Wayne Journal Gazette in an editorial today examines the issue of imposing the death penalty on the mentally ill. Some quotes:

Reinstatement of the death penalty against Joseph Corcoran marks another sad twist in a cruel and misplaced effort to extract justice from a mentally ill man. The sentence should again be thrown out on appeal, and Indiana lawmakers, in the meantime, should finally pass a law banning the execution of the mentally ill. * * *

Such cases could be avoided in the future if a bill pending in the Indiana General Assembly is approved. Sen. Karen Tallian, D-Portage, has again filed legislation based on the recommendations of the Bowser Commission. Senate Bill 22 would prohibit use of the death penalty in cases where a defendant is found to suffer from a severe mental illness.

This page has long believed that justice is not achieved by killing people. But even those who support the death penalty should agree that putting to death criminals who are mentally ill serves no purpose.

A side-bar provides this summary of SB 22:
Senate Bill 22: Proposed bill establishes a procedure to determine whether a defendant charged with murder is an individual with a severe mental illness. Prohibits the imposition of the death penalty on a defendant found to be an individual with a severe mental illness. Provides that a jury serves as the fact finder in a sentencing hearing in a capital case, even if the defendant pleads guilty or is tried. … Permits a defendant to waive the right to impanel a jury during the sentencing hearing.

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to Ind. (7th Cir.) Decisions

Law - More on: IU-Bloomington Law Prof to head Obama's Office of Legal Counsel

Maureen Groppe of the Gannett News Service has this story today on President-elect Obama's nomination of Dawn Johnsen to head the DOJ office of legal counsel.

Joan Biskupic of USA Today has a story headed "Key Justice nominees rooted in academia." It begins:

WASHINGTON — President-elect Barack Obama filled two prominent Justice Department posts Monday, choosing the dean of Harvard Law School to be the first female U.S. solicitor general and an outspoken Bush administration critic to lead the sensitive Office of Legal Counsel.

Elena Kagan, who would be the government's top lawyer before the Supreme Court, worked on domestic policy in the Clinton administration and has won respect from often dueling factions at Harvard since she became dean in 2003. Kagan, 48, is a possible high-court nominee because of her credentials and connections to Obama and his top advisers.

As solicitor general, she would handle cases related to the administration's position on terrorism suspects, health regulations and other controversies. She has never argued before the Supreme Court, and her selection recalls an era when presidents looked to lawyers rooted more in academia than private practice.

Obama also named Indiana University law professor Dawn Johnsen, 47, to be assistant attorney general in charge of the Office of Legal Counsel. The office advises the president on the scope of executive power under the Constitution and federal law and has played an important role on national security legal dilemmas. It was at the center of a controversy in recent years for memos providing the rationale for coercive interrogation of foreign detainees.

Johnsen, who was an acting chief of the office from 1997-98, criticized its support for Bush's policy on terrorism. She argued the "administration's abuses threaten to distort presidential authority and the federal balance of powers for years."

Joe Palazzolo of Legal Times has this report, which includes:
The OLC nomination, in particular, had been highly anticipated. The office's profile was raised during the Bush administration, as it generated controversial legal opinions condoning the use of harsh interrogation methods on suspected terrorists and the warrantless eavesdropping program of the National Security Agency.

Johnsen served as both deputy assistant attorney general and acting chief of the OLC under Clinton. She, too, has been working on the Justice Department transition -- alongside a cadre of other OLC veterans-turned-prominent legal scholars, including Harvard Law professor David Barren, Georgetown Law professor Martin Lederman, and Duke Law professor Christopher Schroeder, and Neil Kinkopf, a professor at Georgia State University College of Law.

Before joining the department, Johnsen was legal director of the National Abortion and Reproductive Rights Action League. She has been a frequent critic of the Bush administration. Her most recent publication is entitled, "What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses."

Former OLC colleagues describe Johnsen as a tremendous intellect who often served as the office's compass, even before she took over as acting chief.

"She was always regarded as the conscience of the office, the person who stressed every day the need to get it right," says Wilmer partner Randolph Moss, a former deputy assistant attorney general in the office.

See also: "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power," by Dawn Johnsen.

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to General Law Related

Ind. Decisions - Transfer list for week ending Jan. 2, 2009

No transfer list has been received for the week ending Jan. 2, 2009.

Posted by Marcia Oddi on Tuesday, January 06, 2009
Posted to Indiana Transfer Lists

Monday, January 05, 2009

Ind. Courts - Fulton County Bar Association honors Judge Douglas B. Morton

Ted A. Waggoner of Rochester sends along this invitation:

Please join the Fulton County Bar Association for a Reception honoring Douglas B. Morton as he retires from the bench.

Friday, January 9, 2009, 3:00 p.m. to 5:00 p.m., in the Jury Room at the Fulton Circuit Court.

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Indiana Courts

Ind. Courts - "Could 2009 bring a third Camm trial?"

That question is asked by Chris Morris of the New Albany/Jeffersonville News & Tribune in a story Jan. 3rd:

David Camm is still waiting for the Indiana Supreme Court to decide his fate, again. Quietly, Floyd County leaders worry about what could happen.

Camm — who has been convicted twice of murdering his wife and two children in their Georgetown home in 2000 — hopes to get a new trial after his attorney argued to the court in May that his second trial contained many errors. * * *

Camm’s two trials have already cost Floyd County more than $2 million. And each month, the county is responsible for paying Camm’s public defender tab.

“It would kill us,” County Council President Larry McAllister said of a third Camm trial. “I don’t know what we would do or where we would get the money.”

Former State Rep. Bill Cochran introduced House Bill 1692 in 2007, and the bill is still in committee. The bill requires the state to reimburse a county if the Indiana Court of Appeals or Indiana Supreme Court remands the case for a new trial. If the bill passes, it would offset the costs to the county if the Supreme Court orders a new trial.

Actually, some language did pass in 2007 to address the problem. Find it at IC 35-38-4-7. However, it appears to be limited to $50,000 "for all proceedings and all offenses arising out of the same facts."

For more on trial costs, see these two ILB entries and the associated links.

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Indiana Courts

Courts - "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

The ILB has had a number of entries on the Supreme Court's decision in 2007 in the case of Ledbetter v. Goodyear Tire & Rubber Co.

In this story yesterday in the NY Times, Robert Pear reported:

President-elect Barack Obama and Democrats in Congress are planning swift action to overturn a Supreme Court decision that made it much harder for people to challenge discrimination in employment, education, housing and other fields.

The decision, involving a woman named Lilly M. Ledbetter, who had accused her employer of sex-based pay discrimination, was issued in May 2007. Since then, courts around the country have gone far beyond the facts of that case and cited it as a reason for rejecting lawsuits claiming discrimination based on race, sex, age and disability.

In some cases, after initially ruling for employees, judges have reversed themselves and ruled in favor of employers. The judges said they had to switch because of the Supreme Court decision. * * *

At issue in the Ledbetter case was the deadline for filing charges under Title VII of the Civil Rights Act of 1964. The Supreme Court did not deny that Ms. Ledbetter had suffered discrimination, but said she should have filed her claim within 180 days of “the alleged unlawful employment practice” — the initial decision to pay her less than men performing similar work.

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Courts in general

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

In U.S. v. Sean Osborne (SD Ind., Judge Hamilton), an 8-page opinion, Chief Judge Easterbrook writes:

Sean Osborne pleaded guilty to possessing and distributing child pornography, in violation of 18 U.S.C. §2252(a). The minimum penalty for that crime is 5 years, and the maximum is 20 years, but if the defendant has a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward”, the minimum penalty rises to 15 years and the maximum to 40. 18 U.S.C. §2252(b)(1). Osborne’s record includes a conviction for violating Ind. Code §35-42-4-9(b), which makes it a crime for a person age 18 or older to “perform[] or submit[] to any fondling or touching, of either the child [any person age 14 or 15] or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person”. The dis- trict court concluded that every conviction under §35-42-4- 9(b) arises from “abusive sexual conduct involving a minor or ward” and sentenced Osborne to 15 years’ imprisonment. * * *

But is all sexual conduct between people of different ages in the “abusive” subcategory? The age difference under §35-42-4-9(b) could be as small as two years (the older person could have just turned 18, and the younger could be one day short of 16), and the sexual contact could include behavior common among students in high school, such as kissing or petting “with intent to arouse . . . the sexual desires” of either person. * * *

Indiana has recognized this. Amendments to §35-42-4-9 in 2007 create a defense that covers most high school students’ touching of the opposite sex. * * * Subsection (e) identifies circumstances under which sexual fondling or touching could not be called “abusive” in ordinary usage. Yet Osborne was convicted in 2002, before this defense was added to the statute. * * *

The district court must reconsider Osborne’s sentence in light of our discussion. Osborne’s argument about the application of U.S.S.G. §2G2.2(b)(5) (which adds five offense levels when a defendant has engaged in “a pattern of activity involving the sexual abuse or exploitation of a minor”) need not be reached if proceedings on remand show that his violation of §35-42-4-9(b) entailed abusive sexual contact, for the 15-year minimum under §2252(b) exceeds the sentence computed under the Sen- tencing Guidelines. But if the district court rules in Osborne’s favor on the characterization of his conviction under §35-42-4-9(b), the court should reconsider the §2G2.2(b)(5) question in light of its conclusion, and what we have said in this opinion. VACATED AND REMANDED

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Ind. (7th Cir.) Decisions

Law - IU-Bloomington Law Prof to head Obama's Office of Legal Counsel

From the Washington Post:

Dawn Johnsen, an Indiana University law school professor who has been handling transition work for the department's sensitive Office of Legal Counsel, today was picked to lead the office. The once obscure OLC took on new importance during the Bush Administration after lawyers there blessed coercive detainee interrogation practices and warrantless domestic surveillance programs. Johnsen had served as an OLC deputy in the Clinton era. In an interview before the election, Johnsen told the Washington Post that a review of all of the Bush era legal opinions would be a major undertaking for the new administration.
For more, see this April 3, 2006 ILB entry, and this faculty bio. From the Hotline:
Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel Johnsen is currently a Professor of Law at the Indiana University School of Law—Bloomington, where she teaches and writes about issues of constitutional law. Her recent publications on issues of presidential power include Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559 (2007) and What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses, 88 Boston U. L. Rev. 395 (2008). She serves on the board of directors of the American Constitution Society for Law and Policy. She served in the Office of Legal Counsel, U.S. Department of Justice, as the acting assistant attorney general heading that office (1997-98) and as a deputy assistant attorney general (1993-96). In that capacity, she provided constitutional and other legal advice to the attorney general, the President, and the general counsels of the various executive branch agencies. From 1988-93, she was the legal director of the National Abortion and Reproductive Rights Action League (NARAL). She clerked for the Honorable Richard D. Cudahy, U.S. Court of Appeals for the Seventh Circuit. She received a B.A from Yale University in 1983 and a J.D. from Yale Law School in 1986.

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Paternity of C.B.R. and L.M.R. (NFP) - " Appellant presents one issue for our review: did the trial court abuse its discretion in setting the amount Appellant was to pay on his child support arrearages? We affirm. "

Timothy J. Coughlin v. Riggs-Ellinger, Inc. (NFP) - "The trial court’s determination that Riggs-Ellinger is entitled to the unpaid balance of the purchase price, as set out in the Purchase Agreement that was breached by Coughlin, Scott, and RPA, is not clearly erroneous. Judgment affirmed. "

NFP criminal opinions today (1):

Tenee Webster v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - "Yielding to emergency vehicles"

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on the law requiring people to yield to emergency vehicles. Some quotes from the story:

A police officer is more likely to be run over during a roadside traffic stop than he is to be shot or stabbed, according to police statistics.

That's why Indiana enacted a "move over law" that requires motorists who see a stopped emergency vehicle on the side of the road to, if they're on a four-lane road, switch lanes so they are not in the lane next to the stopped emergency vehicle. If the motorists can't safely get to the other lane, they must slow down and cautiously drive past the emergency vehicle.

Motorists must move over for police cars, fire trucks and ambulances. They must also move over for recovery vehicles and highway maintenance vehicles. * * *

The same law that requires people to move over for stopped emergency vehicles also requires people to pull to the right and stop when they see an emergency vehicle approaching them and trying to get past them. Emergency responders say people who fail to pull over delay the emergency responders' response to serious medical calls, fires and traffic accidents.

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Jan. 8:

9:00 AM - Tri-Etch, Inc. v. Cincinnati Insurance Company - In this insurance coverage dispute, the Marion Superior Court entered partial summary judgment for Plaintiffs and summary judgment for Cincinnati Insurance Company, concluding the Estate of Young's claim against Tri-Etch fell within the policies, but that Cincinnati owed no coverage because Tri-Etch gave Cincinnati unreasonably late notice of the claim. The Court of Appeals affirmed in part, reversed in part, and remanded with instructions to enter summary judgment for Plaintiffs on the issues of notice and coverage and to determine the defense costs owed by Cincinnati. Cincinnati has petitioned the Supreme Court to accept jurisdiction over this appeal. Attorneys for Tri-Etch, Inc.: Debra H. Miller and James R. Fisher, Indianapolis, IN. Attorneys for Scottsdale Ins. Co.: Lloyd H. Milliken and Lucy R. Dollens, Indianapolis, IN. Stacy M. Broman and Jacob S. Woodard, Minneapolis, MN. Attorneys for Cincinnati Ins. Co.: Richard R. Skiles and janet M. Prather, Indianapolis, IN. Attorneys for Amicus Curiae Ins. Inst. of Indiana, Inc.: John C. Trimble and Richard K. Shoultz, Indianapolis, IN. Attorneys for Amicus Curiae Property Cas. Insurers Ass'n of Am.: Karl L. Mulvaney, Martha S. Hollingsworth and Barry C. Cope, Indianapolis, IN. Attorneys for Amicus Curiae Complex Ins. Claims Litig. Ass'n: Michael A. Dorelli, Patrick J. Olmstead, Jr. and Jason L. Fulk, Indianapolis, IN. Laura A. Foggan and Benjamin J. Theisman, Washington, D.C. [Note: The COA opinion was Tri-Etch Inc., et al v. Cincinnati Insurance Co., decided 7/24/08. See ILB summary of COA opinion here, 5th case.]

9:45 AM - Allianz Insurance Company v. Guidant Corporation - In this insurance coverage dispute, the Marion Superior Court entered partial summary judgment in favor of the policyholders. The Court of Appeals reversed, holding that the policy's "batch clause" was not triggered, and thus the policy's self-insured retention was not exhausted. Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405 (Ind. Ct. App. 4/17/2008). The policyholders have petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys For Appellants: Richard A. Smikle, Andrew J. Miroff, and Brian J. Paul, Indianapolis, Indiana. Lazar P. Raynal and Geoffrey A. Vance, Chicago, Illinois. Attorneys For Appellees: George M. Plews, Jeffrey D. Claflin and Todd Janzen, Indianapolis, Indiana. G. Andrew Lundberg, Los Angeles, California. Mary Rose Alexander, Chicago, Illinois. [Note: See ILB summary of the COA opinion here, 2nd case. The discussion of Rule 9 is must reading.]

10:30 AM - Robert Rovai v. Ann Marie Rovai - When dissolving the parties' marriage and dividing their property, the Lake Circuit Court entered a money judgment in favor of the ex-husband but made the ex-wife's payment of that money due upon the occurrence of one of several future events and specified that no interest would accrue on that judgment. The Court of Appeals affirmed. In re Marriage of Rovai, 891 N.E.2d 177 (Ind. Ct. App. 8/4/2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Robert Rovai: George P. Galanos, Crown Point, IN. Attorney for Ann Marie Rovai: James J. Nagy, Munster, IN. [Note: See ILB summary here, 2nd case.]

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, Jan. 7th:

1:30 PM - Larry Cox vs. Allen Matthews - Appellant's allege that the testimony of a witness was improperly admitted, the verdict was excessive and the procedure for appointing the Special Judge was improper. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Barnes [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, January 05, 2009
Posted to Upcoming Oral Arguments

Sunday, January 04, 2009

Ind. Decisions - "Rulings target Internet sex stings: Appeals court says there must be an actual victim "

The Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana, about which the ILB posted this summary and commentary, is the subject of this story today by Jon Murray of the Indianapolis Star. Some quotes:

The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.

The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. * * *

The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.

The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' conviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.

Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."

Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.

"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."

Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case. * * *

[Hamilton County Prosecutor Sonia Leerkamp] had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.

But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.

See the ILB summary of the July 11th Aplin decision here - 2nd case.

As noted in the story, the Supreme Court denied transfer in Aplin. The commentary to the Dec. 31st ILB entry focuses on the significant to be given the denial.

Posted by Marcia Oddi on Sunday, January 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New trial ordered by judge in pollution suit against New Albany power plant that jury rejected

On Dec. 21st the ILB had this entry, which included a link to this Dec. 18th order (#1506) in the case of U.S. v. Cinergy, et al. The entry also included a link to the list of recent documents available at the time. #1507 was marked as "sealed."

The document has now been unsealed via this Order to Unseal filed Dec. 22nd, which begins:

On the Court’s own motion, the Court has concluded that there is no good cause to keep plaintiff’s, the United States of America, and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, the Hoosier Environmental Council, and the Ohio Environmental Council (all plaintiffs, collectively, “Plaintiffs”), Motion for a New Trial Due to Party Misconduct, or, in the Alternative, for Expedited Discovery and an Evidentiary Hearing, related briefing, and the Court’s Order on Plaintiff’s Motion for New Trial under seal.
Here is the Dec. 18th Order (1507), now unsealed.

Mark Wilson of the Evansville Courier & Press has a story today about the Order. Some quotes:

A federal judge has ruled lawyers for Duke Energy misled jurors about one of its witnesses during a trial on whether the utility company broke federal clean air laws at power plants in Indiana and Ohio.

Those plants include the giant 3,145-megawatt power plant in Gibson County, Ind.

Federal Judge Larry Mc-Kinney ruled Duke attorneys mislead jurors by portraying a witness with knowledge of the power plant improvements simply as a former employee. At the same time, according to the judge's ruling, the Duke attorneys portrayed government witnesses as experts who were paid for their testimony.

After the trial it was discovered that Duke had agreed to pay its witness $200 an hour for his testimony, according to the court record.

McKinney ruled knowing that information could have changed the jury's perception of the facts and its decisions.

"The case involved a substantial amount of a retired employee's time, including his travel. So he was paid. It is a routine fee," said Angeline Protogere, a Duke Energy spokeswoman.

The ruling paves the way for a new trial on most of the charges, even though a jury ruled in Duke's favor on them in May. That gives the government and environmentalists who joined the lawsuit a second chance to prove the company violated the Clean Air Act. * * *

A new trial date has not been set. But the utility company's lawyers have been ordered to attend a Jan. 13 hearing in Indianapolis and explain why they should not be suspended from practicing before the United States District Court for the Southern District of Indiana and pay court costs. [ILB emphasis]

Posted by Marcia Oddi on Sunday, January 04, 2009
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Law - Another editorial 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"

Following on a long list of earlier ILB entries, the Evansville Courier & Press has this editorial today. Some quotes:

Few state laws have so powerful an impact on Hoosiers that they are recognized by their numerical signature by taxpayers and public officials alike. One state law that is that familiar is House Bill 1001, the state's property tax law passed in the last session of the Indiana General Assembly.

Local government officials and homeowners who closely follow taxes and spending are so engaged in the issue that their conversations routinely include someone saying "1001 this" and "1001 that."

They all know that 1001 is the law that, among other features, will cap property taxes, bringing down to earth the tax bills for Hoosier homeowners, many who were hit the year before with crippling bills. * * *

This newspaper strongly supported the passage of HB1001, but we fail now to see the necessity of sealing those caps in the state constitution.

It comes down to this: Daniels and others want to make it as difficult as possible for future legislatures to get rid of the caps.

Those caps are effective tools for controlling the burden on taxpayers. And, they are the law of the state, facing no serious threat for reversal.

But we believe it is too nearsighted to tie the hands of future lawmakers, say 10 to 20 years down the road. Nobody can know now what challenges they will face.

Look at it this way. If Hoosiers want to insure that the legislature will not reverse the caps featured in HB1001, then elect lawmakers who promise to keep the caps in place.

At the same times, legislators are extremely sensitive to the wishes voters. They are not likely to lift the caps without a very good reason — a reason that no one can foresee today.

At the least, let's give the tax law time to work. As State Rep. Russ Stilwell, D-Boonville, told Corbin, "One needs to know what the impacts are before we unilaterally stick it into the constitution."

HB1001 is a good law, as is; keep it that way.

This editorial's continued reference to "HB 1001" is problematic. There is a "House Bill (HB) 1001" in every session. To refer to the version of HB 1001 that was passed by the General Assembly in 2008, the correct reference is House Enrolled Act (HEA) 1001 of the 2008 session. Even better is reference to its Public Law number, which in this case is P.L. 146-2008.

"10 or 20 years down the line", a reference to "HB 1001" will result in nothing but confused stares.

Of equal or greater concern, as has been noted before in the ILB, is the fact that much of this law is not in the Indiana Code.

Posted by Marcia Oddi on Sunday, January 04, 2009
Posted to Indiana Law

Ind. Courts - More on "Girl sues IHSAA to play baseball"

Updating this ILB entry from Nov. 25th, which included a link to the 15-page complaint, an AP story today reports:

BLOOMINGTON, Ind. -- A freshman girl would be allowed to try out for the Bloomington South baseball team under an agreement reached after her family filed a federal lawsuit over an Indiana High School Athletic Association rule that could have barred her from the team. * * *

"They will agree to allow Logan to try out for the baseball team. If she's successful, she'll be permitted to play," said James Whitlatch, an attorney for the school district.

An IHSAA rule prohibits girls from trying out for baseball if their school has a softball team on the basis that the sports are comparable. But the lawsuit filed Nov. 21 in U.S. District Court in Indianapolis argues that baseball and softball aren't really the same sport, so girls should be able to try out for baseball.

The suit seeks to have the IHSAA rule thrown out based on the equal protection clause of the 14th Amendment to the Constitution and Title IX, the federal law that mandates equal educational opportunities for boys and girls.

The suit, filed by Young and her parents, Marie-Elisabeth and Russell Young of Bloomington, names the IHSAA and the school district as defendants.

The settlement agreement, which includes no monetary payment, is between the school district and the family and doesn't include the IHSAA, Whitlatch said. He said he expected the paperwork for the settlement to be filed in federal court within a few days.

Posted by Marcia Oddi on Sunday, January 04, 2009
Posted to Indiana Courts

Saturday, January 03, 2009

Environment - "Protect our environment, even in not-so-good times"

That is the headline of this editorial today in the Indianapolis Star. Some quotes:

One of the unfortunate victims of the national recession may be Indiana's environment. * * *

Today's leaders must understand they're guiding a state that has a long history of neglecting its natural resources. That fact makes not only environmental activists but also many other Hoosiers wary when programs are cut and policies altered.

The budget is undeniably tight. Tough decisions must be made. But the environment should be placed on the same plane as economic development and education when deciding what to protect.

This story from today's Evansville Courier & Press disucces how their area will operate now that:
The state canceled its contracts with the Evansville Environmental Protection Agency and other local air pollution control agencies for this year — leaving the agency without a 40 percent chunk of its annual funding.
This editorial today from the Fort Wayne Journal Gazette includes these quotes:
The Indiana Department of Environmental Management wants to use the economy as a pretext for reneging on recycling grants it promised to several communities and environmental agencies. Hard economic times certainly force people to set priorities, but this decision suggests that protecting the environment is not among Gov. Mitch Daniels’ priorities.

The agency announced this week it was suspending at least six state grants that help pay for recycling and pollution prevention programs for the next 18 to 30 months. Agency officials claim delaying the promised grants will save about $2 million and is a needed cost-saving measure.

The problem is these grants were already awarded, and the agencies that were supposed to receive the state dollars are depending on the money to run their programs. The decision means that about $3 million that was previously approved for recycling or pollution prevention programs by the state will not get to the intended groups. * * *

The need to re-examine state spending in light of the recession is wise. But the decision to delay recycling grant dollars could harm important programs – and is just the latest IDEM decision on a growing list that clearly demonstrates Daniels’ lack of support for environmental protection.

Posted by Marcia Oddi on Saturday, January 03, 2009
Posted to Environment

Ind. Gov't. - Incoming Attorney General Zoeller featured today

The Evansville Courier & Press reporter, Bryan Corbin, has a lengthy feature today on Greg Zoeller. A few quotes:

Zoeller will succeed his boss, outgoing Attorney General Steve Carter, and plans to build on Carter's programs of the past eight years. But Zoeller also learned from another Hoosier politician, Dan Quayle.Zoeller has been Carter's second-in-command; and when sworn in as Indiana attorney general Jan. 12, he will inherit Carter's consumer-protection responsibilities and the Do Not Call List that Carter promoted to deter telemarketers.

Zoeller, 53, has promised to continue the current attorney general's ongoing lawsuit against alleged racketeering by political figures in East Chicago, Ind. Investigating public corruption is one of the attorney general's duties, and Zoeller suspects the misuse of tax dollars will become more of a problem in Indiana as the economy worsens.

"If you look at the state of the economy, there's probably even more reason to be concerned over those who have responsibility for public funds," Zoeller said. "We do come to office at a time when we've got a major economic crisis in the country. So it's not always about developing new programs, but preparing for what I can envision to be additional challenges for the office."

Zoeller will supervise 140 attorneys who enforce consumer-protection laws and represent the state when prisoners appeal their convictions in appellate court.

As attorney general, Zoeller will have a regulatory role in ensuring that tax-exempt nonprofits use their donations in the public's interest. And he is looking at changing the way the office investigates medical-licensing complaints so they end with more "certainty," he said.

"Probably his biggest challenge is just making his own mark. When you work under somebody else and you step to the forefront, you have to differentiate yourself from your prior boss and set your own course," said Rep. Trent Van Haaften, D-Mount Vernon, a former Posey County prosecutor. "How (Zoeller) does that depends on what course he chooses to take, whether he is out front on a number of things, whether he finds a cause or two that needs to be addressed and addresses it."

Posted by Marcia Oddi on Saturday, January 03, 2009
Posted to Indiana Government

Ind. Courts - "She's the best trial judge I've ever practiced in front of"

That is a quote from from Jon Murray's story today in the Indianapolis Star, headed "Marion County Judge Patricia Gifford retires after 30 years." Some quotes:

Patricia Gifford spent three decades in a swamp of murders, robberies, rapes and swindles, a toxic turf few judges in Marion Superior Court survive half as long. * * *

"You've got to remember, when she assumed the bench, there were not many women lawyers, much less judges," said Theodore Boehm, an Indiana Supreme Court justice and Gifford's grade-school classmate on Indianapolis' Northside. "She really was a pioneer and a leader."

Opportunities were just opening up for women, a point underlined in one of her earliest cases, a sex crime, after she became a judge in 1979.

"The defendant was strenuously objecting because the judge was a woman, the prosecutor was a woman and the victim was a woman," Gifford said. She found the situation anything but objectionable. "I thought, 'Isn't that amazing?' "

Before she took over Criminal Courtroom 4, Gifford, 70, a Republican, started out as a teacher -- only because she didn't want to become a homemaker or a nurse, among the few options available for women in the early 1960s. A few years later, she earned a law degree and worked for the Indiana attorney general, then as a part-time prosecutor.

Gifford quickly developed a sharp-edged tenor from the bench. It's an approach that humbles unprepared lawyers of all stripes, while inspiring their respect. * * *

New judges long have leaned on Gifford as a mentor, including Robert Altice, whose courtroom is next door; Jane Magnus-Stinson, now a federal magistrate; and Robyn Moberly, now a civil judge.

Gifford's best advice was simple, Moberly said -- "to remember that I'm in control, and my demeanor really sets the tone of the courtroom."

Gifford also was a teacher, of sorts, to young defense attorneys and prosecutors.

"She's the best trial judge I've ever practiced in front of," said Bob Hill, who handled death-penalty cases before Gifford and now is chief public defender. "She might not always agree about what you're advocating, but she will always let you present your case. She's always very fair and even-handed."

Scott Newman, the city's public safety director and the former Marion County prosecutor, was more blunt.

"She wasn't someone you would go have a beer with. But she was what a judge should be, in the sense that she made you be the best lawyer you could be."

Posted by Marcia Oddi on Saturday, January 03, 2009
Posted to Indiana Courts

Friday, January 02, 2009

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

For publication opinions today (1):

In Darcy Lafferty v. State of Indiana, an 8-page decision, Sr. Judge Garrard writes:

On appeal, [Lafferty] claims error in the court’s refusal to give her tendered final instruction defining “fugitive from justice.” She also claims the evidence fails to sustain the verdict. * * *

Accordingly, we conclude the court erred in failing to give the requested instruction. Moreover, there was a failure of proof because no evidence was presented that Murphy had been charged with an offense in another state and fled to Indiana. The judgment is reversed and the appellant is ordered discharged.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Veltor L. Cotton, Jr. v. State of Indiana (NFP)

Aimee E. Gross v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 02, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Left and right differ on the decisions, but each side has its ‘worst’ list"

Worst decisions of the SCOTUS? David Savage has an article in the January issue of the ABA Journal naming a few.

Posted by Marcia Oddi on Friday, January 02, 2009
Posted to Courts in general

Ind. Law - Quirks of the Rules of the State Lottery Commission and Horse Racing Commission

The General Assembly possesses the legislative power of state government, the power to pass laws. The theory goes that the legislature may delegate its lawmaking power to state administrative agencies, by granting rulemaking authority in the agency's governing statute, but that the language has to set the parameters of the agency's delegated rulemaking power. In other words, the rules are only to implement the provisions of laws passed by the state legislature

There have been challenges to rules adopted by one or another state agency, claiming that they go beyond the authority delegated to the agency by the General Assembly, or that the parameters spelled out in the agency's statute are too broad, without sufficient standards, so that the agency is making law on its own, rather than simply fleshing in the outline set by the General Assembly.

Challenges may also be posed to state agency rules on the grounds that they were improperly promulgated. The general rulemaking statute, IC 4-22-2 -- Adoption of Administrative Rules, prescribes the formal steps that must be followed by a state agency to properly adopt (promulgate) a rule.

This law is designed to insure openness and public participation in the rulemaking process. Those rulemakings that do not follow the steps are invalid. See IC 4-22-2-44 - "A rulemaking action that does not conform with this chapter is invalid."

Normally, the statute requires a proposed rule to be published in the Indiana Register at least once, with a formal opportunity for submission of written comments and/or public hearing. (BTW, in the case of environmental rules, the General Assembly has added a number of additional steps to the general rulemaking process - here is a chart comparing the steps for general, environmental, and emergency rulemaking.)

After adoption by the agency, the proposed rule must be reviewed and approved by the Attorney General (IC 4-22-2-31 & 32) for legality (including whether it has been adopted with statutory authority) and by the Governor (IC 4-22-2-33 & 34), and a minimum of 30 days must pass (IC 4-22-2-36) after the finalized rule is filed with the publisher (LSA) before it goes into effect. Again, the procedure is set by statute, and following the steps involved may mean a rule takes months, or even years, to finalize.

Emergency rules. There are exceptions to the above, that apply to certain agencies under certain conditions. These are spelled out in IC 4-22-2-37.1.

If you look online, you will notice that there are several versions of section 37.1. This section is one of the most amended in the Indiana Code and nearly every session a number of amendments change it. It is also one of the most complex to read and apply.

Under section 37.1, certain agencies are allowed to shortcut, for a time, the lengthy rulemaking process set out in the rest of IC 4-22-2, through use of temporary or "emergency" rulemaking procedures.

Section 37.1 begins: "(a) This section applies to a rulemaking action resulting in any of the following rules:" A list of 31 different situations follows.

Subsection (b) provides that the rest of the rulemaking requirements -- i.e. those set out in IC 4-22-2-24--36, do not apply in the 31 situations. Instead, as provided in subsection (c), the agency simply adopts the emergency rule and files it with LSA. And by virtue of subsection (f), no waiting is required for the rule to go into operation; it may go into effect the day of filing.

Looking through the list of 31 situations where this shortcut is allowed, #8 is "An emergency rule adopted by the state lottery commission under IC 4-30-3-9" and #12 is "An emergency rule adopted by the Indiana horse racing commission under IC 4-31-3-9.."

Generally a rule adopted under section 37.1 expires in 90 days, as set out in subsection (g). However, over the years subsection (g) has been burdened with more and more exceptions.

But those interested in emergency rules of the lottery or horse racing commissions need not concern themselves with subsection (g), because a separate subsection, (h), applies. It reads:

(h) A rule described in subsection ... (a)(8) [An emergency rule adopted by the state lottery commission under IC 4-30-3-9] , [or] (a)(12) [An emergency rule adopted by the Indiana horse racing commission under IC 4-31-3-9], ... expires on the earlier of the following dates:
(1) The expiration date stated by the adopting agency in the rule.
(2) The date that the rule is amended or repealed by a later rule adopted under sections 24 through 36 of this chapter or this section.
What does this mean? I read it to mean that an emergency rule adopted by the lottery commission or horse racing commission, that does not itself include an expiration date, does not expire. It is a permanent rule.

In short, the state lottery commission and the horse racing commission may adopt permanent rules with no notice, no opportunity for public participation, and no warning. Neither the Attorney General nor the Governor are involved. And the rules may go into operation the day they are filed with the LSA. And they may be permanently amended or repealed just as quickly.

So how would one challenge such a rule? Suppose your concern is that the agency has issued an ultra vires rule -- one beyond its statutorily granted authority? Or that a rule does not contain ascertainable standards, and so cannot withstand a challenge for vagueness?

In my opinion, you would begin in court. An emergency rule issued by the lottery or horse racing commission is a final agency action. There are no available administrative remedies of any sort to exhaust.

Posted by Marcia Oddi on Friday, January 02, 2009
Posted to Indiana Law

Ind. Courts - "Ex-law partners take oaths as judges" in Delaware County

From a story today in the Muncie Star-Press, reported by Douglas Walker:

There might have been a bittersweet element to a Wednesday ceremony that saw longtime law partners sworn in as local judges.

Thomas Cannon Jr.'s law partnership with fellow attorney Bill Bruns effectively came to an end when he took the oath of office as new judge of Delaware Circuit Court 5.

Sworn in by veteran Circuit Court 2 Judge Richard Dailey, Cannon then administered the oath of office to Bruns, who became judge of Muncie City Court.

Cannon, a Democrat, was elected to the Circuit Court 5 bench in the Nov. 7 election.

Bruns, a Republican, was recently chosen by Gov. Mitch Daniels to succeed longtime City Court Judge Linda Ralu Wolf, who had been elected judge of Circuit Court 3.

Posted by Marcia Oddi on Friday, January 02, 2009
Posted to Indiana Courts

Ind. Courts - "Marriage vows words of day at Porter County Courthouse"

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

VALPARAISO -- If you ever thought it might be fun to get married on New Year's Eve, you're not alone.

The Porter County Courthouse issued seven marriage licenses Wednesday. Six couples married at the courthouse, and one had plans for later that night.

The end of the year, like Valentine's Day and other holidays, sees an increase in marriages, although this year has seen more.

"I don't think it's been this way in a couple of years," Deputy Clerk Cindy Beach said. She performed two of the ceremonies herself.

People have different reasons for choosing the last day of the year, said Judge Mary Harper, who performed three ceremonies Wednesday and one Tuesday. * * *

Mark Conrady and Leonora Hale of Porter felt their marriage would be the perfect end to a good year, and they had her sister, Christine Barry, visiting from England.

Harper, who usually charges $100 per ceremony, said she plans to donate the fees from Wednesday's weddings to the Humane Society.

Posted by Marcia Oddi on Friday, January 02, 2009
Posted to Indiana Courts

Ind. Law - "Convicted killer turns to law upon his release from prison"

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

SOUTH BEND | A region man serving time for his part in slaying and decapitating his father plans to perch on a different side of the law upon his release.

Paul Komyatti Jr., 43, who was 17 when he was sentenced in 1983 to prison for the slaying, has a job lined up as a paralegal in an Indianapolis law firm upon his release.

After 26 years in prison garb, Komyatti, formerly of Hammond, said it was time for a new image. * * *

Komyatti said he will leave prison armed with three bachelor's degrees from Ball State University and a thick file of accomplishments.

"My life is going in a certain direction, and I'm going to follow it," Komyatti said. "I'm not trying to make up for 26 years in prison. That's impossible."

Komyatti was transferred in September from state prison to the South Bend Work Release Center. He worked a second-shift industrial job in Elkhart, Ind., until the entire shift was laid off.

Judi Jellicoe, assistant superintendent for the South Bend Work Release Center, said Komyatti is cooperative and anxious to rejoin society.

Posted by Marcia Oddi on Friday, January 02, 2009
Posted to Indiana Law

Thursday, January 01, 2009

Ind. Law - Bloomington bars upset with reduced seating limits

An AP story that appeared on a number of newscasts earlier this week reported that:

After Bloomington's City Council increased penalties for fire code violations last June, some bar owners asked the city to verify their maximum occupancy figures in an effort to avoid costly fines.

But asking for that verification may end up costing them money.

Bar owners said revised occupancy limits drastically reduce the amount of people who can be inside their bars at any one time. Bluebird nightclub owner Dave Kubiak said capacity at his downtown club was reduced from 443 to 288, even though the venue added several hundred square feet since the previous figure was established. * * *

It's unclear why the latest capacity limits from the fire department vary from limits that the clubs -- many near the Indiana University campus -- had been operating under for decades.

Bloomington Fire Chief Roger Kerr said the department consulted with the Indiana State Building Commission and the state fire marshal's office in reviewing occupancy limits at the bars. State law allows established bars to be governed by historic occupancy guidelines instead of current rules, fire officials said.

A story dated Dec. 31st from the Bedford Times-Mail, reported by Mercedes Rodriguez, is headed "Bar owners get reprieve." Some quotes:
BLOOMINGTON — Changes to maximum occupancy limits for five Bloomington night spots were stopped after a meeting with state fire officials in Indianapolis.

Bloomington Fire Chief Roger Kerr; a consultant representing the owners of the Crazy Horse, the Alley Bar, the Upstairs Pub, Jake’s and the Bluebird; city of Bloomington legal counsel and others met as part of an appeals process begun by the bar owners. Earlier this year, the maximum occupancy levels had been reduced by fire officials for those businesses.

The stay is “temporary in nature,” said city attorney Patty Mulvihill. The appeal will not be final until a judge rules on the matter, she said.

The two sides are at odds over the interpretation of state rules that set occupancy limits for public buildings.

John Erickson, spokesperson for the Indiana Department of Homeland Security — the agency under which the fire marshal serves — said state fire inspectors will visit the Bloomington bars. They’ll meet with local officials and determine the use of each space (i.e. dance floors, dining areas) and take measurements of the inside of each business. From there, they will determine occupancy loads.

Erickson said there are different maximum occupancy formulas according to the size and type of space. In addition, different rules apply depending upon when the building was built, he said.

The bar owners did not attend the meeting, according to Bluebird owner Dave Kubiak. They were represented by consultant Melissa Tupper of RTM Consultants of Indianapolis, a firm that specializes in building code and fire code issues.

“Ultimately, we’re just looking for an accurate occupant load that’s consistent with places throughout the state of Indiana,” said Kubiak.

Previously, the Bluebird’s occupancy limit had been reduced from 443 to 288. The Alley’s limit was changed from 28 to 15.

And recall this ILB entry from August 7th, headed "Ind. Law - Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online."

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Indiana Law

Ind. Law - "Law lets Hoosiers protect reports via e-mail, phone"

Amanda Iacone of the Fort Wayne Journal Gazette had this story yesterday about new credit data safeguards that go into effect today.

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Indiana Law

Law - *Analysis: Must U.S. Senate seat Burris?"

Two interesting articles today on the question. Lyle Denniston of SCOTUSBlog presents his analysis of the June 16, 1969, decision in Powell v. McCormack here. And Mike Dorning and David G. Savage have this article in the Chicago Tribune, headed "Does Senate have authority to block Blagojevich's appointment of Roland Burris? Supreme Court has said in past that House and Senate cannot refuse to seat someone who meets qualifications."

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to General Law Related

Ind. Decisions - 231 Adult Plaza must close, pay fines

The ILB has had a number of entries re this Spencer County adult shop. Here is a list.

Today Thomas B. Langhorne reports in the Evansville Courier & Press:

In the latest development in a three-year legal battle with Spencer County, a judge there has found 231 Adult Plaza in contempt of court for violating a permanent injunction.

Spencer Circuit Court Judge Wayne A. Roell's ruling says the business along U.S. 231 in Dale must "cease all business operations" in its main building without relocating for one year and must pay $362,467.59 in fines and attorney and witness fees.

The ruling states 231 Adult Plaza "may not resume any of the business activities which have been halted by this court until all fines and fees have been paid in full.

"... The defendants have shown a pattern of bad behavior since the time they first began doing business in Spencer County."

The contempt of court finding, which had been sought by Spencer County, comes seven months after the Indiana Supreme Court declined to hear 231 Adult Plaza's appeal of a lower court ruling that said the county could regulate the amount of sexually-themed merchandise in the store's inventory. [See May 6 ILB entry and links]

In December, the Indiana Court of Appeals sided with Spencer County, finding the county did not violate the adult plaza's First Amendment free-expression rights when it regulated adult merchandise in the store through a sexually-oriented businesses ordinance passed in 2005. [See Dec. 16, 2007 ILB entry]

Roell's ruling cites evidence of "numerous and ongoing" ordinance violations that occurred in September, October and November, including as recently as Nov. 26.

The judge's ruling includes a list of violations several pages long, some of them supported by testimony from expert witnesses who visited 231 Adult Plaza. * * *

Lawyers on both sides have said they expect 231 Adult Plaza to appeal Roell's order.

The judge's court order recounts the history of the legal dispute between 231 Adult Plaza and Spencer County in language that often affects an exasperated tone.

"Initially, (the defendants) showed a total disregard for the building codes of Spencer County," Roell wrote. "Next, they quickly violated this court's preliminary injunction and showed a general lack of respect for the authority of this court. And they have routinely violated this Court's permanent injunction showing their disdain for abiding by the rules. They have twice been found to be in contempt of this court.

"In the past, this court has punished these defendants for their violations of both the ordinances of this county and the orders of this court. But this court has also given these defendants the opportunity to follow the rules. Despite that opportunity, this court has now used words and phrases like contempt, disregard, lack of respect and disdain when describing the defendants' actions.

"This court has heard for a second time about how these defendants may have 'pushed the envelope.' That is certainly true. But now the time has come for this court to close that envelope."

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Reports of judges sworn in in Allen and Tippacanoe counties

Amanda Iacone has this brief report in the Fort Wayne Journal Gazette.

Dorothy Schneider has this report in the Lafayette Journal Courier.

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Indiana Courts

Ind. Courts - Still more on "LaPorte deputy prosecutor shot"

"Officials release 911 tape in judge-elect's shooting" is the headline to this story today in the NWI Times, reported by Stan Maddux. The story includes a link to the tape of the 911 call. From the story:

LAPORTE | A recording of 911 calls placed after LaPorte Superior Court Judge-elect Jennifer Evans was shot reveals her husband sounding emotionally shaken and much relieved when informed help was on the way.

With authorities remaining tight lipped about how the shooting occurred due to the ongoing investigation, the audio released by LaPorte County 911 Director Brent Sollar shed some light on the chain of events. * * *

With follow-up questions still coming from the dispatcher, Koethe said the shot was fired from ''our weapon.'' He said guns in the home were put away for a baby sitter over earlier that night.

After returning home, Koethe said the mishap occurred while he and Evans were bringing the guns out of hiding.

''We were putting them back out to protect ourselves and it fired," Koethe said.

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Indiana Courts

Ind. Law - "Indiana joins mortgage broker crackdown"; Critics say states too slow to act

Deanna Martin of the AP has a lengthy story today in the Evansville Courier & Press on a crackdown on mortgage brokers. See also this ILB entry from July 8th. A quote from within the story:

But critics say states have been too slow to act, missing chances to prevent the predatory lending practices that have resulted in a historic number of troubled loans across the country. The last two unregulated holdouts — Colorado and Alaska — only began licensing brokers in 2008.

Rogers' nonprofit policy and research group recently estimated that almost 2.2 million subprime foreclosures will occur through the end of 2009.

Homes in surrounding neighborhoods could see property values drop by more than $350 billion, the center predicted.

That's grim news for areas like the Martindale-Brightwood neighborhood in Indianapolis, where small but well-kept homes sit on the same block as crumbling houses with peeling paint, tall weeds and plywood-covered windows.

Shirley Webster, who grew up in the area and now owns a home there, says the empty homes attract crime and hurt efforts to rebuild.

"When we have properties that are in foreclosure, they sit vacant for a long time," Webster said. "A lot of people have gotten into these properties that really could not afford it."

Webster supports efforts to crack down on mortgage brokers in Indiana, which consistently ranks among the top states for foreclosures.

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Indiana Law

Ind. Decisions - Year-end annexation results in Hamilton County and Jeffersonville

Hamilton County. "Determined Geist group won't end annexation fight: Residents vow to appeal after judge gives Fishers OK to add 2,200 homes" is the headline to this lengthy story today by Carrie Ritchie of the Indianapolis Star that begins:

A judge on Wednesday gave Fishers the green light to annex Geist, prompting residents of the upscale enclave along the reservoir to immediately vow that they would appeal.

Geist vs. Fishers has been one of the most hotly contested and closely watched annexation battles in Indiana, even prompting a judge in a similar case to put proceedings in his court on hold until the case could be resolved.

Hamilton Superior Court Judge Steven Nation ruled that Fishers showed it could provide adequate fire service and tend to the other municipal needs of the 2,200 Geist homes that would be annexed.

"We were disappointed with the ruling, but we'll take it up to the next level, and we'll kind of go from there," said Geist United Opposition President Pete Peterson.

Jon Laramore, the lead partner in an appellate law practice that's not involved in the case, said appeals in such matters typically don't fare well.

"Those property owners in Geist have a tall mountain to climb to win that appeal," said Laramore, of Baker & Daniels law firm in Downtown Indianapolis.

Geist United has 30 days to file an appeal. The case could take another two years to work its way through the courts, especially if it reaches the Indiana Supreme Court.

An appeal would further delay Carmel's bid to annex Home Place, an unincorporated area roughly centered on 106th Street and Westfield Boulevard in Hamilton County.

reet and Westfield Boulevard in Hamilton County.

In that case, Hamilton Superior Court Judge William Hughes has postponed any decisions until Geist vs. Fishers is resolved.

The story includes a side-bar timeline going back four years.

Here is a long list of earlier ILB entries on annexation.

Jeffersonville. This ILB entry from Tuesday (Dec. 30) quoted a LCJ story that began:

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.

Today Ben Zion Hershberg reports in the LCJ in a story that begins:
After more than a year in the works, Jeffersonville's annexation of a 30-acre tract near Stacy Road and north of Ind. 62 took effect yesterday when opponents agreed to withdraw their challenge.

In return, developer Bob Lynn, who owns the tract, agreed to install a buffer of six-foot pine trees between neighboring Bethany Farms and the Laurel Springs subdivision he plans to build on the property.

Bethany Farms residents have been fighting the annexation in court for more than a year and Lynn's development plans for more than six years. While the annexation case was against Jeffersonville, Lynn intervened as the owner of the property.

"It felt like we got slugged in the gut," Denise Poukish, an opposition leader, said of the residents' decision to finally give up.

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Indiana Courts

Ind. Decisions - "Death penalty back on table for Corcoran"

The 7th Circuit's decision yesterday in the case of Joseph E. Corcoran v. Buss (see ILB entry here) is the subject of a story today by Rebecca S. Green in the Fort Wayne Journal Gazette that begins:

The state of Indiana can once again reinstate the death penalty against convicted quadruple-murderer Joseph E. Corcoran, according to a 2-1 ruling the U.S. Court of Appeals issued Wednesday.

Just over a year ago, the three-judge panel of the U.S. Court of Appeals in Chicago heard arguments about whether Corcoran’s death sentence should be overturned.

In 1999, a jury convicted the then-22-year old Corcoran of four counts of murder. In July 1997, Corcoran shot and killed his brother, James Corcoran, 30; his sister’s fiancé, Robert Scott Turner, 32; and two of his brother’s friends – Timothy G. Bricker, 30; and Douglas A. Stillwell, 30 – at a Bayer Avenue home.

At issue was whether Corcoran, who suffers from paranoid schizophrenia, was mentally competent when he waived his right to have a trial court review his case, and whether his constitutional rights were violated when then-Allen County Prosecutor Robert Gevers offered to take the death penalty off the table if Corcoran would agree to a bench trial rather than a jury trial.

The case has taken many twists leading up to Wednesday’s ruling and it is not likely to be over yet.

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to Ind. (7th Cir.) Decisions

Law - "Law firms' woes likely to last: More layoffs, fewer bonuses may persist with economic slump"

That is the headline from this story today in the Chicago Tribune, reported by Ameet Sachdev. Some quotes:

Much has changed in the structure of law firms since the last law-firm recession in the early 1990s, and industry experts predict the current downturn could be more painful for lawyers. For one, the definition of large law firms has changed. Twenty years ago, the largest firms had 500 lawyers who had grown up together and shared a common history. Today, partnerships are two or three times bigger, geographically dispersed, often built through merger.

"You have pretty weak glue holding these bigger enterprises together," said William Henderson, associate law professor at Indiana University who specializes in legal labor markets.

A second key change is that law firms have much higher fixed labor costs because of the growth of associate salaries and a new tier of lawyers known as non-equity partners. These are lawyers who offer experience and knowledge to clients and lower billing rates than equity partners.

The average big law firm has 4.3 lawyers to every equity partner, Henderson said, up from 3.65 in 2000. With higher leverage, a decline in revenue per lawyer can become a "combustible combination," he added.

In 2008, there were three notable dissolutions of large firms, including the San Francisco firm Heller Ehrman. Henderson forecasts more blowups in 2009. * * *

The glory days of lockstep raises and big bonuses are over. Latham & Watkins will freeze associate salaries in 2009. Other firms are expected to follow Latham's move because the firm is considered a market leader, industry experts said.

Firms are now paying for bumping first-year associate salaries in 2006 from $125,000 to $160,000. Runaway salaries have dented profits and angered clients who had to pay for the raises through higher fees.

Firms will take a new look at their capital structure. In December, DLA Piper asked its more than 300 non-equity partners to buy shares in the firm by paying $100,000 or more per lawyer. The firm wanted to reduce its debt as well as increase financial incentives for lawyers, Miller said.

"There was no compulsion for us to do what we did," he said. "In these economic times, it's better to have a more solid balance sheet."

Posted by Marcia Oddi on Thursday, January 01, 2009
Posted to General Law Related