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Tuesday, March 31, 2009

Courts - Highly compensated California state judges not sharing state's economic pain

That is the thrust of an AP story by Paul Elias today, published in the Washington Post. The long story begins:

SAN FRANCISCO -- California has furloughed workers and slashed programs to close a $41 billion budget gap, but it still has more than 400 judges in Los Angeles County who each make more than the chief justice of the U.S. Supreme Court.
This caught my eye:
The heftiest perks go to Los Angeles County judges, who get $46,000 a year from the county on top of their state salaries, giving them a total of $225,000. * * *

An appellate court last year ruled that the Los Angeles County perks, which cost $21 million annually, were unconstitutional. But the judges fiercely resisted attempts to do away with the extra funds, hiring a law firm and Sacramento lobbyist to resist challenges to the benefits.

The California Judges Association also hired a Sacramento lobbyist and joined forces with the judiciary's administrative office to get legislation passed earlier this year protecting the county-provided benefits. * * *

"Quite frankly, many of these judges went on the bench understanding and relying that these benefits were there," said Child, who also said the state Constitution bars reducing an active judge's salary.

Interesting, especially if read it in conjunction with the ILB entry from Dec. 29, 2008.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Courts in general

Ind. Courts - More on: State workers lawsuit for back pay during 1973-1993 period begins today

The ILB reported on March 10th that the $8.5 million settlement had fallen through and that the state workers' lawsuit was set for a bench trial beginning that day, before Judge John Hanley.

The ILB has heard and read nothing further. Anyone?

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Indiana Courts

Ind. Courts - More on: Indianapolis Central library lawsuit begins in Boone County courtroom

Updating this ILB entry from March 14th, Jon Murray reports today on the Indianapolis Star site in a story that begins:

LEBANON, Ind. -- The six-week trial over the troubled Central Library project shifted gears today as witnesses called by an engineering firm's defense lawyers took the stand.

At the halfway point, the Indianapolis-Marion County Public Library rested its primary case alleging fraud and constructive fraud against the New York-based firm, Thornton Tomasetti, and a managing principal, Joseph G. Burns. The trial likely will stretch into the second half of April.
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Library attorneys on Monday asked a Boone County jury to award $24 million in damages, plus punitive damages. The hope of a large verdict against Thornton Tomasetti is a key part of the library's quest to recoup cost overruns estimated at nearly $50 million beyond the project's original $103 million budget.

[Updated 4/1/09] Here is the updated version, published in today's Star.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues four today

In The Indiana Dept. of Environmental Management v. Raybestos Products Co., on a petition for rehearing, Justice Boehm's opinion reads in full:

Raybestos has petitioned for rehearing from this Court’s December 9, 2008 opinion. Raybestos points out that the opinion incorrectly states the standard of review used by the Office of Environmental Adjudication in reviewing an action of IDEM. The first full paragraph of page 7 of the slip opinion states that OEA uses the standard of review provided by Indiana Code section 4-21.5-5-14 and may provide relief as permitted by section 4-21.5-5-15. Raybestos rightly points out that these statutes apply to judicial, not administrative review. We grant rehearing for the limited purpose of correcting this error and otherwise deny Raybestos’s Petition for Rehearing. [ILB - see Dec. 9 summary here.]
In Brian Tyler v. State of Indiana , an 11-page, 4-1 opinion, Justice Boehm writes:
We exercise our supervisory power to hold that a party may not introduce testimony via the Protected Person Statute if the same person testifies in open court as to the same matters. We also exercise our authority to revise the defendant‘s 110-year sentence to sixty-seven and one-half years. * * *

The trial court did not abuse its discretion when it admitted videotaped interviews with three of the children after the children had testified at trial. However, we remand the issue of Tyler‘s sentence to the trial court with instructions to issue an amended sentencing order in accordance with this opinion, without a hearing.

Shepard, C.J., and Rucker, J., concur.

Sullivan, J., concurs in result as to Part I and concurs as to Part II with separate opinion. [which begins, on p. 9] Sometimes having a new approach to the admissibility of evidence improves the administration of justice but I respectfully suggest that the status quo is superior to that adopted by the Court here.

Dickson, J., concurs and dissents with separate opinion: As to Part I of the Court's opinion, I agree with its holding regarding the permissible use of statements under the Protected Person Statute. * * *

As to Part II, however, I dissent. Adhering to "due consideration of the trial court's decision," as required by Indiana Appellate Rule 7(B), I find that Judge Taul's evaluation and determination of the appropriate sentence for this defendant and these convictions does not warrant appellate intrusion.

In Tony R. Gray v. State of Indiana, an 8-page, 5-0 opinion, Justice Boehm writes:
Tony Gray was found guilty by a jury of robbing two fast-food restaurants while armed with a deadly weapon. We find the evidence sufficient to sustain a finding Gray was armed during the first robbery, but insufficient to sustain a finding Gray was armed during the second. * * *

This cause is remanded to the trial court with instructions to reduce Gray’s convictions on the Long John Silver’s crimes (Counts I and II) to Class C felony robbery and Class D felony criminal confinement. In all other respects, the judgment of the trial court is affirmed.

In Tommy R. Pruitt v. State of Indiana, a 56-page, 4-1 opinion, Justice Sullivan writes:
Tommy Ray Pruitt was sentenced to death for the murder of a Morgan County police officer. His conviction and sentence were upheld on direct appeal. We now affirm the post-conviction court‘s findings that Pruitt was not denied the effective assistance of trial or appellate counsel guaranteed by the Sixth Amendment, that he did not present it with newly discovered evidence that undermined confidence in his death sentence, and that his death sentence is not unconstitutional under the U.S. Supreme Court‘s decision in Atkins v. Virginia prohibiting sentencing persons with mental retardation to death. * * *

We affirm the PC court‘s denial of Pruitt‘s petition for post-conviction relief.

Shepard, C.J., and Dickson and Boehm, JJ., concur.

Rucker, J., dissents with separate opinion. [which reads in full] On direct appeal I was convinced that Pruitt was mentally retarded and thus not eligible for a death sentence. See Pruitt v. State, 834 N.E.2d 90, 123-26 (Ind. 2005) (Rucker, J., dissenting). After examining the evidence presented to the post-conviction court, I am even more convinced today. Pruitt‘s status has not changed. He was and still is mentally retarded. I would therefore reverse his death sentence and remand this cause with instructions to impose a term of years.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Still more on: Robert Cantrell found guilty on all charges

Updating this ILB entry from Nov. 23, 2008, Dan Hinkel of the NWI Times reports this afternoon in a story that begins:

HAMMOND | Robert Cantrell was sentenced to 78 months in prison Tuesday morning in Hammond federal court and ordered to pay $68,000 in restitution.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)

For publication opinions today (7):

In Home Telephone Co. of Pittsboro, Inc., et al. v. Verizon North, Inc., et al. , an 11-page opinion is an appeal from an order of the state utility regulatory commission. Judge Riley concludes:

Based on the foregoing, we hold that (1) Appellants waived their argument as to whether the IURC abused its discretion when it held that Section 10 of the Phase II Settlement Agreement precluded the Variance requested by Appellants; (2) the IURC did not render a decision on matters outside Appellants’ requested relief; and (3) the IURC did not abuse its discretion when it required Appellants to modify their Qualification Test by excluding the impact of rate reductions that occurred in 2006. Affirmed.
In Diane Meyer v. National City Bank , a 6-page appeal pro se, Senior Judge Hoffman writes:
Defendant-Appellant Diana Meyer appeals the trial court’s grant of summary judgment in favor of Plaintiff-Appellee National City Bank. We affirm.

Meyer presents three issues for our review, which we consolidate and restate as two: I. Whether the trial court erred in granting summary judgment for National City Bank. II. Whether Weltman Weinberg & Reis Co, L.P.A. properly represents National City Bank in this action.

In Heartland Resources Inc., Heartland-Red River Prospect, L.P., et al v. Ambrose and Catherine Bedel, a 7-page opinion, Judge Najam writes:
Heartland Resources, Inc.; Heartland-Red River Prospect, L.P.; David A. Stewart; Richard Stewart; and Mark Haynes (collectively “Heartland”) appeal from the trial court’s entry of default judgment against Heartland and award of damages to Ambrose Bedel and Catherine Bedel (collectively “the Bedels”). Heartland presents the following restated issues for our review: 1. Whether the trial court had personal jurisdiction over Heartland. 2. Whether the trial court erred when it awarded the Bedels treble damages. The Bedels cross-appeal and contend that the trial court erred when it did not award them attorney’s fees. We affirm and remand with instructions. * * *

Heartland contends that the trial court abused its discretion when it did not dismiss the Bedels’ complaint based upon the forum-selection clause in the contract. Indeed, the majority of Heartland’s brief on appeal is devoted to arguments that the forum-selection clause was freely negotiated and just and reasonable. However, those issues are not properly before this court on appeal, and we do not address the validity of the forum- selection clause.

[1] Once default judgment is entered against a party, the only means of challenging that judgment is by a motion to set aside the default judgment “in accordance with the provisions of Rule 60(B).” * * *

Heartland also has not shown that the trial court abused its discretion when it denied its motion to set aside default judgment. In addition to showing excusable neglect, a movant for relief from judgment under Trial Rule 60(B)(1) must show a meritorious defense. * * *

Here, Heartland did not plead the forum-selection clause or any meritorious defense, but merely alleged that the Bedels’ allegations were “not . . . based in fact.” Heartland did not present any evidence in support of that bare assertion. Indeed, Heartland was not even present at the hearing on its motion to set aside default judgment. Heartland has not demonstrated that the trial court abused its discretion when it denied its motion to set aside default judgment.

[2] Heartland next contends that the trial court erred when it awarded treble damages to the Bedels. Heartland maintains that the Bedels’ claims “fall squarely under” the Indiana Uniform Securities Act (“the Act”), which does not provide for treble damages. In essence, Heartland contends that because the award is based on damages arising from the Bedels’ investment in securities, the Act is the exclusive remedy. But there is nothing in the Act making it the exclusive remedy for the Bedels. * * *

[R]ather than awarding the Bedels damages under the Act, which does not provide for treble damages, the trial court expressly based the award on Heartland’s “fraud and deception as detailed in the complaint.” Id. The trial court did not err when it awarded the Bedels treble damages.

Cross-Appeal. The Bedels contend that the trial court erred when it did not award them attorney’s fees. This Court has held that a plaintiff is entitled to attorney’s fees, including appellate attorney’s fees, when she prevails under the Crime Victim’s Relief Act. See Benge v. Miller, 855 N.E.2d 716, 722 (Ind. Ct. App. 2006). We remand to the trial court with instructions to determine a “reasonable attorney’s fee,” including appellate attorney’s fees, and to include those amounts in the Bedels’ award. See I.C. § 34-24-3-1.

In Julie A. Gardiner v. State of Indiana, an 11-page, 2-1 opinion, Judge Robb writes:
Julie Gardiner appeals the trial court’s modification of her sentence for dealing in methamphetamine within 1000 feet of a public park, a Class A felony, to twenty years all to be executed at the Department of Correction. For our review, Gardiner raises a single issue: whether the trial court erred when it determined that Indiana Code section 35-50-2-2(b)(1) (the “non-suspension rule”) prohibited it from suspending any portion of Gardiner’s twenty- year sentence where Gardiner had a prior Class D felony conviction that was subsequently reduced to a Class A misdemeanor conviction. Concluding that Gardiner’s prior conviction triggers the non-suspension rule, we affirm. * * *

Gardiner asks us to determine, as a matter of first impression, whether Indiana Code section 35-50-2-2(b)(1) prohibits a trial court from imposing an executed sentence below the statutory minimum when the defendant has a prior conviction for a Class D felony which has been subsequently reduced to a Class A misdemeanor. * * *

No Indiana court has addressed the issue of whether a reduction of a prior conviction from a felony to a misdemeanor pursuant to the terms of a plea agreement affects the application of the non-suspension rule in Indiana Code section 35-50-2-2(b)(1). * * *

We are sympathetic to the argument that application of the non-suspension rule under these circumstances fails to account for Gardiner’s good behavior. * * * We are frustrated by a sentencing scheme that so illogically limits the sentencing judge’s discretion. Rather, we believe that Indiana’s sentencing scheme should encourage judges to sentence defendants based on their demonstrated behavior rather than on speculation about future behavior, and we invite the legislature to consider amending the statutes to provide such discretion.

Despite our frustration, the current relevant statutes do not grant such discretion. * * *

Therefore, we hold that the non-suspension rule in Indiana Code section 35-50-2- 2(b)(1) remains in effect after a prior unrelated Class D felony conviction is subsequently reduced to a Class A misdemeanor. Rather, the application of the non-suspension rule depends upon the status of the prior criminal conviction at the time of sentencing for the subsequent criminal conviction. * * *

At the time of her conviction and sentence for the Class A felony, Gardiner had a prior unrelated Class D felony conviction. Therefore, the trial court is prohibited from suspending her sentence below the statutory minimum of twenty years. Even though her Class D felony conviction was later modified to a Class A misdemeanor, the non-suspension rule continues to apply. As a result, the trial court did not err when it refused to modify Gardiner’s executed sentence below twenty years. Affirmed.

CRONE, J., concurs.
BROWN, J., dissents with separate opinion. [which begins, on p. 10 of 11] I respectfully dissent from the majority’s conclusion that the trial court lacked the ability to suspend Gardiner’s sentence below the minimum sentence.

William P. Graham, Sr. v. State of Indiana - "Based on the foregoing, we conclude that Graham has not waived his claim by pleading guilty without bargained for benefit, and the trial court erred by using the same underlying felony to support the conviction of Graham for unlawful possession of a firearm by a serious violent felon and to support an habitual offender finding used to enhance the sentence for that count. We remand for the trial court to remedy this sentencing defect."

Gary Dennis Jackson v. State of Indiana is a 19-page, 2-1 opinion, where Judge Riley concludes:

Based on the foregoing, we conclude there was no evidence that the jury was influenced by the newspaper article, and, therefore, there was no manifest necessity to grant such a mistrial. Consequently, the dismissal of the jury at Jackson's second trial operated as an acquittal, and the subsequent trial on those same charges violated his right to be free from double jeopardy. Reversed.

[Judge Bradford's 8-page dissent begins:] In my view, the trial court was within its considerable discretion to conclude that a manifest necessity existed to justify a mistrial and permit retrial in the instant case without violating Jackson's double jeopardy protections. For this reason, I respectfully dissent.

In Darby L. Hape v. State of Indiana , a 40-page opinion, Judge Vaidik writes:
Darby L. Hape was convicted by a jury of Class A felony possession of methamphetamine with the intent to deliver and Class D felony resisting law enforcement and was found to be a habitual offender. The trial court sentenced Hape to an aggregate eighty-year term in the Department of Correction. After trial, the parties learned that the jury, during deliberations, read text messages saved in Hape's cellular telephone that were previously undiscovered by the State and the defense. The cellular telephone was admitted into evidence during trial as part of an exhibit showing the items confiscated from Hape at the time of his arrest. On appeal, Hape raises multiple issues, a number of which pertain to the accidental exposure of the text messages to the jury.

Among other things, we conclude that text messages are intrinsic to the cellular telephones in which they are stored. Therefore, pursuant to Indiana Evidence Rule 606(b), Hape could not impeach the jury's verdict with them. We also conclude, as a matter of first impression in Indiana, that text messages are subject to separate authentication before being admitted into evidence. Here, the lack of proper authentication was not fundamental error because the text messages were harmless. We affirm Hape's convictions for possessing methamphetamine and resisting law enforcement. However, the State concedes that the evidence is insufficient to support his habitual offender adjudication, and we reverse the trial court's finding in this regard and remand for the trial court to vacate Hape's thirty-year habitual offender sentencing enhancement. Affirmed in part and reversed in part.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of A.S. and B.S. v. Scott Co. Dept. of Child Services (NFP)

Z.K. Diggs, Inc., C.B. Hill, Inc., and C. Field, Inc. v. Treasurer of Vanderburgh Co., et al. (NFP)

NFP criminal opinions today (11):

Jonathan Hankins v. State of Indiana (NFP)

Edward Chandler v. State of Indiana (NFP)

Carlos Portillo v. State of Indiana (NFP)

Scot Dean Silvers v. State of Indiana (NFP)

Robert A. Romero v. State of Indiana (NFP)

Paul Rykard Jr. v. State of Indiana (NFP)

Gary M. Hevner v. State of Indiana (NFP)

Joseph Shafer v. State of Indiana (NFP)

Maureen Schmidt v. State of Indiana (NFP)

Earl R. Schepers v. State of Indiana (NFP)

Troy A. Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Ind. App.Ct. Decisions

Law - Dawn Johnsen vote may not be for another three weeks

The Blog of Legal Times reports:

Dawn Johnsen, nominated to be assistant attorney general in charge of the Office of Legal Counsel, may have to wait at least another three weeks for a vote in the Senate.

Votes related to the federal budget are occupying most of the Senate’s time this week, and the office of Senate Majority Leader Harry Reid (D-Nev.) says that it has not reached an agreement with Senate Republicans for a time to debate Johnsen’s nomination. Democrats hope to reach an agreement on the timing in order to avoid the lengthy procedures involved if Reid has to move to cut off debate on the floor.

The Senate is scheduled to begin its two-week Easter recess at the end of the week, pushing a confirmation vote to the week of April 20 at the earliest.

Earlier ILB entries on Dawn Johnsen.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to General Law Related

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

In Re John W. Bartle (SD Ind., Judge Barker), is a 14-page opinion by Judge Rovner:

Debtor-appellant John W. Bartle owes the United States millions in unpaid taxes. In December 2004, he filed a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code. Two and a half years after Bartle sought Chapter 11 protection, the United States moved to dismiss the bankruptcy on the ground that Bartle’s debts dwarfed his financial resources and he realistically could not effectuate a re- organization. The district court granted the motion with- out conducting a hearing and subsequently denied Bartle’s motion to alter or amend the dismissal order. Bartle appeals, contending that dismissal of the bank- ruptcy on less than twenty days’ notice and without the opportunity to be heard requires reversal. But because Bartle has not articulated what evidence or argument he would have presented in opposition to the government’s motion, we find any error to be harmless.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Ind. (7th Cir.) Decisions

Law - Gary Post-Tribune parent company files for bankruptcy [Updated]

Just posted on the NWI Times website:

CHICAGO | The Sun-Times Media Group, owner of the Chicago Sun-Times, the Post-Tribune in Merrillville and dozens of suburban newspapers, filed for Chapter 11 bankruptcy Tuesday, making it the fifth newspaper publisher to seek protection from creditors in recent months.

The step, brought on by a precipitous decline in advertising revenue, means both of Chicago's major daily newspapers are operating under bankruptcy protection. Tribune Co., the parent company of the Chicago Tribune, Los Angeles Times and other newspapers, filed for Chapter 11 in December. * * *

As part of cost-cutting measures, the company previously announced it would sell office buildings housing its operations, including the Post-Tribune’s office in Merrillville. It also turned over delivery of The Post-Tribune to the Chicago Tribune, cut staff there and moved some operations, including printing, from Northwest Indiana to Chicago. * * *

The dire financial condition of Chicago's newspapers mirrors the situation in Philadelphia, where the publisher of The Philadelphia Inquirer and Philadelphia Daily News filed for bankruptcy protection in February.

Other cities with two daily newspapers have seen the industry's crisis whittle away competition this year. The Rocky Mountain News closed, leaving The Denver Post, while the Seattle Post-Intelligencer went online only, leaving The Seattle Times without a mainstream daily print rival.

[Updated] Here is the story from the point of view of the Sun-Times itself.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to General Law Related

Environment - "Megadairy review continues: Latest design submitted to IDEM includes earthquake provisions"

Pam Tharp has a long story today in the Richmond Palladium-Item, on Liberty Dairy LLC, a 2,500-cow megadairy proposed last year for Union County. Some quotes:

LIBERTY, Ind. -- German dairyman Frank Achelpoehler has submitted a new design plan for Liberty Dairy LLC, one that addresses earthquakes.

Environmental safety during an earthquake was a concern raised at a December public hearing on the megadairy's federal wastewater permit. Union County is located within the New Madrid fault line.

The new plan submitted March 10 to the Indiana Department of Environmental Management includes two smaller manure lagoons instead of a single large lagoon. It also includes a large containment ditch that would hold manure that might escape the raised lagoons if an earthquake occurred.

Land will be sloped so the waste will flow into the ditch, which circles the farmstead on three sides, Achelpoehler said.

The proposed 2,500-cow dairy to be built on U.S. 27 in Harrison Township was announced almost a year ago, but the project remains on hold until IDEM issues it a federal wastewater permit.

IDEM has 180 days after a permit application is filed to issue a permit, but that clock stops each time the agency asks for more information. IDEM is required to address all issues concerning the proposed permit that were raised at the hearing.

"As part of our further review of facility plans and issues raised during the 30-day public comment period, IDEM requested the applicant address and submit a lagoon design that would incorporate additional protective environmental safeguards," said IDEM spokesperson Amy Hartsock. * * *

IDEM already required a groundwater monitoring plan for Liberty Dairy to track what happens beneath the lagoons. The monitoring wells are to be tested twice a year with the results available to the public.

The dairy also was required to submit a construction certification plan to ensure the earthen manure storage structures are built according to the plans, and the engineer also must sign off on the construction.

Here are earlier ILB entries on the Liberty Dairy proposal.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Environment

Courts - "Kentucky students' court operates just like real thing"

From a story by Chris Otts in the March 30th Louisville Courier Journal:

Melissa Moore is not a lawyer.

But the Eastern High School junior sure looked and acted the part in a packed courtroom on the 10th floor of the Jefferson County Judicial Center yesterday.

"The opposing counsel is offering evidence that is improper pursuant to rule 608-B," Melissa told Boyd Circuit Judge Marc Rosen during a "trial" that lasted more than two hours. It was the final round of the annual Kentucky High School Mock Trial Tournament.

Melissa joined Eastern seniors Ashley Gei and Candace McLaurine in acting as prosecutors, while Madison Central High School provided the defense in a fictitious trial involving a high school student who was caught dealing marijuana by an undercover police officer.

The jury was a group of lawyers and judges from around the state, including Kentucky Court of Appeals Judge Janet Stumbo.

Madison Central won and will represent Kentucky in the national mock trial competition in Atlanta this May. * * *

About 400 students participated, and 30 courtrooms were used during the three-day competition, said Patrick Yewell, an official with the Kentucky Administrative Office of the Courts, which runs the state program.

Students not only play the lawyers in the trials, but they portray the witnesses as well. When they invoked procedural rules, they were not reading from scripts.

Ashley said the Eastern team members had studied the case for about seven months in three-hour practices, five days a week. "I've wanted to be a lawyer since I was in seventh grade," Melissa said.

Eastern High principal Jim Sexton, who was in the courtroom yesterday to cheer on the team, said mock trial is as big a deal as basketball to the Middletown school. The team grew out of a popular Justice and Law elective course for juniors and seniors, he said.

Here is the website of the National High School Mock Trial Competition. South Bend's John Adams High School has placed in the top ten in recent years.

Posted by Marcia Oddi on Tuesday, March 31, 2009
Posted to Courts in general

Monday, March 30, 2009

Ind. Courts - "The Indiana Supreme Court is seeking comments from judges, attorneys and the public as it considers proposed rule amendments governing Alternative Dispute Resolution"

A release from the Court this evening begins:

The Indiana Supreme Court is seeking comments from judges, attorneys and the public as it considers proposed rule amendments governing Alternative Dispute Resolution. The proposed changes include the following:

  • Amending Rule 2.7 to add a section (F) that would permit a non-lawyer mediator to complete certain documents as part of the mediation process without violating the rules governing the unauthorized practice of law.
  • Adding a new Rule (2.12) that would permit a mediator to provide legal information, but not legal advice to parties, without violating the rules governing the unauthorized practice of law.

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Indiana Courts

    Ind. Decisions - Transfer list for week ending March 27, 2009

    I'm told there is no transfer list for the week ending March 27, 2009.

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Indiana Transfer Lists

    Ind. Law - "Banks Starting to Walk Away on Foreclosures"

    From the NY Times today, a long story, dateline South Bend, reported by Susan Saulny, on mortgage foreclosures. A quote:

    City officials and housing advocates here and in cities as varied as Buffalo, Kansas City, Mo., and Jacksonville, Fla., say they are seeing an unsettling development: Banks are quietly declining to take possession of properties at the end of the foreclosure process, most often because the cost of the ordeal — from legal fees to maintenance — exceeds the diminishing value of the real estate.

    The so-called bank walkaways rarely mean relief for the property owners, caught unaware months after the fact, and often mean additional financial burdens and bureaucratic headaches. Technically, they still owe on the mortgage, but as a practicality, rarely would a mortgage holder receive any more payments on the loan. The way mortgages are bundled and resold, it can be enormously time-consuming just trying to determine what company holds the loan on a property thought to be in foreclosure.

    In Ms. James’s case, the company that was most recently servicing her loan is now defunct. Its parent company filed for bankruptcy and dissolved. And the original bank that sold her the loan said it could not find a record of it.

    “It is what some of us think is the next wave of the crisis,” said Kermit Lind, a clinical professor at the Cleveland-Marshall College of Law and an expert on foreclosure law.

    So how might this tie in with the push to educate Indiana lawyers and judges in helping homeowners facing foreclosure? The story continues:
    The problem seems most acute at the bottom of the market — houses that were inexpensive to begin with — and with investment properties, where investors and banks want speedy closure by writing off bad loans as losses. Banks and investors typically lose 40 percent to 50 percent of their investment on every foreclosure.

    Guy Cecala, publisher of Inside Mortgage Finance, an industry newsletter, said some properties had become such liabilities for investors that it was not even worth holding on to them to strip valuable fixtures, like kitchen appliances, toilets and hardware.

    “The whole purpose of foreclosure is to take title of the property, sell it and recoup what money you can,” Mr. Cecala said. “It’s just a sign of the times that things are so bad no one wants to take possession of the property.”

    In South Bend, boarded-up houses for whom no one has stepped forward are dotting the landscape, adding a fresh layer of blight to communities that were already scarred from the area’s industrial decline.

    The city is hoping to create a new type of legal mediation process that would bring together the homeowners and the mortgage holders to settle their disputes while allowing the owners to remain in the home — considered crucial to any stabilization effort.

    “I’d say in the last three or four months, we’ve seen dozens of these cases,” said Chuck Leone, the South Bend city attorney. “We see it one of two ways. One is that the bank will simply dismiss the foreclosure complaint. The other is that the mortgage holder will follow through and take a judgment of foreclosure, but then not schedule the property for sheriff’s sale.”

    Here is a list of earlier ILB entries mentioning "foreclosure."

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Indiana Law

    Ind. Law - "It's the Law: Burning yard waste can lead to troubles"

    Ken Kosky's NWI Times' "It's the Law" column for today, looks at illegal burning. Some quotes:

    Fire officials say it's common, especially at this time of year, for people to rake up their leaves, branches and other yard waste and burn it.

    Officials are reminding residents that open burning is illegal for residents of Lake and Porter counties, and for residents of Clark and Floyd counties in southern Indiana because of unacceptably high ozone levels.

    People who violate the open burning rules can be fined, and they can be held liable if their fire gets out of hand and damages other people's property.

    "We've been getting several open burning complaints," Valparaiso Assistant Fire Chief Dan Lamb said. "We go out and advise them (of the rules) and ask them to put it out. If they don't, we will call law enforcement."

    There are limited exceptions to the open burning statute, such as ceremonies, cooking and bonfires.

    The Indiana Department of Environmental Management (IDEM) recommends alternatives to burning like composting yard waste.

    Not to quibble, but the ILB does not think open burning is allowed in, for instance, Marion County, either.

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Environment | Indiana Law

    Not law! - Bob Knight and friends in hilarious Guitar Hero ad

    Don't miss it. From the Indianapolis Star: "The latest "Risky Business"-style commercial for "Guitar Hero," featuring Mike Krzyzewski, Roy Williams, Rick Pitino, Bob Knight and Metallica, aired Sunday."

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to General News

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

    For publication opinions today (1):

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

    Brandon Vernon appeals the revocation of his probation. Specifically, he contends that the trial court erred in not allowing him to present evidence that explained and mitigated his probation violation. Because Vernon did not admit to all the allegations in the probation violation petition, the trial court held an evidentiary hearing
    on the remaining allegations. Vernon was thus afforded the opportunity at this evidentiary hearing to present evidence that suggested that the violation did not warrant revocation. We therefore affirm.
    NFP civil opinions today (0):

    NFP criminal opinions today (2):

    State of Indiana v. Brian Custer (NFP) - "Because Custer‟s request for final disposition was made in response to a detainer lodged against him on the basis of an untried information and the State failed to try him within 180 days, the trial court properly granted Custer‟s motion for dismissal. "

    Vernon Teague v. State of Indiana (NFP)

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Law - "Meth lab cleanup a hassle for landlords"

    On August 6, 2006, the ILB posted this entry, headed: "Who should pay price for meth messes?" Here is what I wrote at the conclusion of the entry:

    Here is the proposed rule, #06-125, published in one of the final issues of the Indiana Register. A public hearing was held on 6/27/06. All that remains now is for the IDEM Commissioner, after reviewing the public comments, to finalize the rule.

    What does the proposed rule require? Think of a person with a rental property, or a farmer with an outbuilding, that had been turned into a meth lab without the knowledge of the property owner. The duties of the property owner are described starting on p. 6 of the document. The owner of the contaminated property shall clean up the property as required under the new rule before further use of the property or transfer of any interest in the property. (318 IAC 1-3-2) The property must be decontaminated under the supervision of a qualified inspector. (318 IAC 1-3-5)

    How much is this going to cost the property owner? Nowhere in the information in pages 1 and 2 of the proposed rule does anyone venture a quess. But the cleanup contractors will make money. See this statement on p. 2:

    [T]he economic impact of this rulemaking cannot be meaningfully quantified at this time. Compliance with this rule will be a significant cost to property owners affected by this rule. At the same time, compliance with this rule would allow remediation contractors, wrecking contractors, and other contractors to receive payment for services performed under this rule. The Department expects the costs to property owners to roughly balance the benefits to contractors who clean up these properties.
    Well yes.

    So does this proposed rule go beyond the directive set in the authorizing statute? Or is it the statute that places these responsibilities on the property owner? In either case, if not the property owner, then who should be responsible for the cost of the cleanup?

    The "authorizing statute" is IC 13-14-1-15, found at SECTION 6 of SEA 444-2005 (at p. 4 of the PDF).

    Here are background ILB entries from 12/27/04, 1/1/06, 8/6/06, and 3/23/07.

    Today Virginia Ransbottom has this lengthy report in the South Bend Tribune. Some quotes:

    PLYMOUTH — Growing along with the number of illegal methamphetamine labs are landlords left with contaminated housing to clean up.

    "It's up to the property owner to get a certificate of decontamination," said Wes Burden, Marshall County Health Department administrator.

    After the meth suppression unit removes the bulk of a meth lab's contents, it's Burden's job to condemn the property and inform owners they need proof of cleanup from the Indiana Department of Environmental Management. * * *

    "It costs at least $1,500 to get tested and prove a meth lab site is clean," Burden said. "And if it's not, it could cost tens of thousands of dollars stripping off walls and floors."

    According to Indiana's drug lab cleanup rule that protects future occupants from exposure to chemicals, property owners must hire an inspector qualified by IDEM.

    "But there aren't any in the area, and the closest one in Fort Wayne wants over $2,000 just to inspect the place," said Rex Crump, a property manager for more than 240 apartments in the area.

    "That doesn't include if the walls need to be torn out, and the only company qualified to do that is the same company that does the testing," Crump said. * * *

    Crump's now hoping a local business will earn IDEM certification to become an inspector that doesn't charge as much for testing. Crump's other option is to leave the dwelling uninhabited.

    Although Crump conducts credit, criminal and background checks on tenants, looking to the future, he's started a zero-tolerance drug policy, asking tenants and staff to report any suspicious behavior and immediate eviction for violators.

    He's also joined Plymouth Mayor Mark Senter's anti-meth commission.

    "It's another era of the rental business," he said. "We don't know if it can be covered by a special insurance rider, but it should be a higher felony count if it endangers other people."

    The health administrator said the penalty for noncompliance with IDEM's decontamination rules falls under a code violation and is a class B misdemeanor.

    "We check them during the day to make sure no one has crossed the tape line," Burden said. "But eventually the (abandoned dwellings) will slip through the cracks."

    Here is IDEM's website on cleanup of illegal drug labs.

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Environment | Indiana Law

    Courts - "In Britain, Web Leaves Courts Playing Catch-Up "

    The ILB found this article in today's NY Times, by Noah Cohen, really interesting. Here are some quotes:

    ON March 17, hours after publishing leaked documents on its Web site showing the lengths Barclays had gone to in order to reduce the taxes it paid in Britain, The Guardian newspaper was ordered by a judge to take the material down. His reasoning was that the bank had a right to confidentiality.

    In the ruling, the judge in London, Nicholas Blake, also added a peculiar twist: The Guardian must not tell readers how easy it is to locate the documents at Web sites outside of Britain. It was only the latest example of British courts trying to preserve what it saw as litigants’ rights even in the face of an onslaught of information on the Internet. To some, this may be a final, futile effort. * * *

    “The Internet is throwing sharp relief to the illogical nature of our system,” said Alan Rusbridger, the editor of The Guardian. “Technology is way ahead of the law, and the law is limping along trying to make sense of it.”

    The effect of the Internet on judges’ rulings is not a uniquely British problem, said Jonathan Zittrain, a Harvard law professor who taught at Oxford. There is at least one example, he said, of an American court ordering a Web site not to link to content it had been ordered to take down. But he added that “British courts may be a little more confident of their own power, and be less willing to cave in to practicalities.”

    The Barclays case pits two interests against each other, said James Edelman, a law professor at Oxford who argues media law cases. Since 1988, Professor Edelman said, British law has given great protection to the right of confidentiality, applying it to third parties like The Guardian, which received the documents from someone else. Yet, the “public interest” in learning about what is contained in those documents, he said, can often outweigh confidentiality considerations.

    Finally, there is a basic factual question: is the material already in the public domain? And this is where the Internet throws a wrench into the proceedings.

    The courts recognize, Professor Edelman said, that there is no point in banning the publication of something already widely disseminated. In the Barclays case, the court met in secret to determine if the material had crossed that threshold. * * *

    Professor Edelman of Oxford said that Judge Blake’s order could represent a last example of British courts ignoring the changed reality of by the Internet.

    “What is significant about the ruling,” he said, “is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.” The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Courts in general

    Ind. Decisions - Upcoming oral arguments this week and next

    This week's oral arguments before the Supreme Court (week of 3/30/09):

    • None currently scheduled

    Next week's oral arguments before the Supreme Court (week of 4/6/09):

    Next Thursday, April 9th

    • 9:00 AM - Matter of Estate of Lawrence W. Inlow - The Hamilton Superior Court approved the request by a decedent's estate for reimbursement of funeral and burial expenses from wrongful death settlement proceeds. The Court of Appeals affirmed, holding that Indiana's wrongful death statute does not require itemization of settlement proceeds fur such reimbursement. Matter of Estate of Inlow, 893 N.E.2d 734 (Ind. Ct. App. Sept. 18, 2008), vacated. [See ILB COA summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    • 9:45 AM - Jim Kovach v. Alpharma, Inc. - Following their son’s death from a medical overdose, Plaintiffs sued the alleged makers and distributors of the cup used to administer the medicine and sought recovery on product liability and warranty theories. The Marion Superior granted those defendants summary judgment. The Court of Appeals reversed the summary judgment and remanded. Kovach v. Alpharma, Inc., 890 N.E.2d 55 (Ind. Ct. App. July 16, 2008), vacated. [See ILB summary of the 2-1 COA opinion here - 5th case.] The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.


    This week's oral arguments before the Court of Appeals (week of 3/30/09):

    Tuesday, Tuesday, March 31st:

    • 2:00 PM - Jim and Carol Daily v. City of Columbus, Board of Zoning Appeals - Jim and Carol Daily ("the Dailys") appeal from the trial court's order affirming the City of Columbus Board of Zoning Appeals' ("the BZA") denial of the Dailys' temporary use application for a farmers market on their 2.1-acre lot in Columbus, Indiana in their action for a petition for writ of certiorari and complaint for declaratory judgment. The Dailys appeal, arguing that the trial court erred: (1) by concluding that the creation of the Dailys' lot in 1973 violates the current City of Columbus Zoning Ordinance; and (2) in concluding that the Dailys' lot lacks the attribute of "access and frontage" under the current City of Columbus Zoning Ordinance. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]

    • 5:00 PM - Rosalynn West v. Betty Wadlington, et al - Plaintiff Rosalynn West sued her fellow churchgoers, Betty Wadlington and Jeanette Larkins, and Larkins' employer, the City of Indianapolis, claiming defamation and invasion of privacy. West's complaint stems from a letter about West that Wadlington wrote and addressed to their church board of trustees and board of deacons. Wadlington included this letter in an email she sent to Larkins at her work email address. Larkins, using her work email, then forwarded the email on to over eighty other email addresses. Some of the allegedly defamatory language used in the letter had religious connotations. The Defendants filed a motion to dismiss West's complaint for lack of subject matter jurisdiction, arguing that the Free Exercise clause of the First Amendment prevented the court from determining whether the statements in the email were defamatory or false. The trial court granted the motion to dismiss, and West appeals. The main issue on appeal is whether the Free Exercise clause of the First Amendment prevented the trial court from hearing West's claims. The Scheduled Panel Members are: Judges Bailey, Mathias and Barnes [Where: Wynne Courtroom, Indiana University School of Law - Indianapolis]

    Wednesday, April 1st:

    • 2:00 PM - Jay B. Stokes v. State of Indiana - [As noted last week, further information is not available from COA site - link leads to this]
    Next week's oral arguments before the Court of Appeals (week of 4/6/09):

    Next Tuesday, April 7th:

    • 1:30 PM - Nunn Law Office v. Peter H. Rosenthal - Appellant Nunn Law Office ("Nunn") appeals the trial court's award of $1462.88 in attorney's fees in its petition for division of attorney's fees arising out of Nunn's and Appellee attorney Peter Rosenthal's successive representation of Joseph Carpenter in Carpenter's personal injury action against Terry Rosengarten. Upon appeal, Nunn claims that the trial court erred in failing to issue written findings of fact and conclusions thereon pursuant to Trial Rule 52 and in basing its award upon quantum meruit rather than upon Nunn's contingency fee agreement with Carpenter. The Scheduled Panel Members are: Judges Najam, Barnes and Bradford. [Where: Supreme Court Courtroom - Webcast]

    • 4:00 PM - Sheehan Construction Company, et al v. Continental Casualty Company, et al - This is a dispute over the scope of coverage of comprehensive general liability insurance policies Continental Casualty issued to Sheehan Construction, a general contractor, and Indiana Insurance issued to Somerville Construction, a subcontractor. A class of plaintiffs alleged their homes sustained water damage because of faulty workmanship. The insurers obtained summary judgment on the ground damage naturally resulting from defective workmanship is not an "accident" for which the policies provide coverage. The Class asserts the insurance industry broadened the scope of its standard policies in 1986 to cover such damage. The Scheduled Panel Members are: Judges Riley, May and Brown [Where: University of Southern Indiana, Carter Hall D at University Center, 8600 University Blvd., Evansville]

    Next Wednesday, April 8th:

    • 12:45 PM - Gabino Gonzalez v. State of Indiana - A pickup truck Gabino Gonzalez was driving while he was intoxicated hit a school bus. A jury found him guilty of criminal mischief and driving while intoxicated. Before his trial he was negotiating a guilty plea and while it was pending he wrote a letter to the school corporation in which he apologized for the accident and admitted he was drinking that day. The trial court allowed the State to enter that letter into evidence. Gonzales argues on appeal that was error because a letter written as part of guilty plea negotiations is inadmissible at a trial, and because the letter was hearsay. Apparently Gonzales had written a different letter in Spanish but the letter presented at trial was a translation by someone else. The Scheduled Panel Members are: Judges Riley, Bailey and May. [Where: Sam and Paul Robinson Performing Arts Center, Our Lady Providence High School, 707 Providence Way, Clarksville]

    Next Thursday, April 9th:

    • 10:00 AM - Frederick William Lacava v. Daniel and Geoffrey Lacava - Frederick LaCava was sued by his adult sons, Daniel and Geoffrey, for alleged sexual abuse during their minority. Daniel and Geoffrey claimed they suffered from repressed memories of the events. LaCava filed a motion for summary judgment claiming that the action was barred by the statute of limitation, either because Daniel and Geoffrey did not suffer from repressed memory or because their mother's knowledge of the events during their minority is imputed to them. The trial court denied the motion, finding genuine issues of material fact as to when Daniel and Geoffrey had memories of the events and whether their mother was complicit in LaCava's misconduct. This court has accepted LaCava's interlocutory appeal of the trial court's denial of his motion for summary judgment. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Sheraton Hotel Conference Center, 31 West Ohio Street, Indianapolis]

    Posted by Marcia Oddi on Monday, March 30, 2009
    Posted to Upcoming Oral Arguments

    Sunday, March 29, 2009

    Ind. Courts - Judicial Center's Legislative Update #11

    The second half of the legislative session is well underway this week. April 15th is the last day for 3rd reading of bills in the opposite house (meaning that there are only two more weeks, starting tomorrow, for committee meetings), and the last day for adoption of conference committee reports without Rules Committee approval. April 29th is the last day for adjournment.

    Here are the bills of interest to the Judicial Center heard this week in committee.

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Indiana Courts

    Ind. Decisions - Still more on "Federal magistrate urges ban of schools’ faith study"

    For those interested in the case involving the Huntington County Community Schools and the establishment clause, about which the ILB had entries on Feb. 4 and March 21, it turns out the blog Dispatches from the Cultural Wars has been covering the case. This entry today has links to thre relevant decisions and, via another blog, Religion Clause, the underlying Supreme Court decisions.

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Ind Fed D.Ct. Decisions

    Ind. Law - "Indiana laws govern use of off-road vehicles"

    The South Bend Tribune has an article today on the laws governing off-road vehicles (ORV). The long article begins:

    With many Hoosiers enjoying the warmer weather and the outdoor activities associated with it, the Department of Natural Resources is reminding off-road vehicle operators about the laws regarding registration of their ORVs and them being operated on public roads.

    All ORVs operated on public property must be registered with the DNR. In addition, all ORVs purchased after Dec. 31, 2003, must be registered.

    Registration forms are available from most dealers, most license branches and the Department of Natural Resources Customer Service Center, or they can be printed from the Web site www.in.gov/dnr/ outdoor/ohv/ohvfaq.htm.

    Any ORV five model years or less, and purchased after Dec. 31, 2005, must have a certificate of title from the Bureau of Motor Vehicles. This titling change came about to help curb the theft and sale of stolen ORVs from within Indiana and surrounding states.

    Many ORV operators have been misinformed or have not taken the time to educate themselves about the laws pertaining to operating their ORVs on public roads, and in some counties this presents problems for law enforcement.

    The article is useful and contains several links to more information, but nowhere in the article is the term "off-road vehicle" defined. So the ILB turned the the statute, IC 14-16-1, "Off-Road Vehicles," for a definition. In vain.

    "Off-road vechicle" is not defined in the statute. The term "vehicle" is defined, at IC 14-16-1-7:

    IC 14-16-1-7 "Vehicle" defined

    Sec. 7. As used in this chapter, "vehicle" refers to an off-road vehicle or a snowmobile.
    As added by P.L.1-1995, SEC.9. Amended by P.L.186-2003, SEC.40.

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Indiana Law

    Ind. Law - "Over the limit; under arrest"

    Gavin Lesnick of the Evansville Courier & Press reports today on getting intoxicated drivers of the roads. Some quotes from the lengthy story:

    On a recent night, authorities found Evan Rohrer.

    The 24-year-old Evansville resident was on his way home from a Newburgh bar when deputies pulled him over on Green River Road. A breath test revealed an intoxication level of 0.09 — just over the legal limit of 0.08.

    Rohrer spent the night in jail.

    "That was definitely a wake-up call," he said, sitting in his Southeast Side apartment a few days after a judge suspended his license. "... I want everybody to know the feeling of being in handcuffs and put in a holding cell is not a good feeling at all."

    Rohrer was caught during a saturation patrol, an enforcement effort that adds roving deputies, officers and Indiana State Police troopers onto area roadways specifically to catch drunken drivers. Those and sobriety checkpoints are two primary ways local authorities emphasize the effort to get intoxicated drivers off the road.

    The patrols can happen virtually any night, though more officers work traditionally busy times such as weekends and holidays, said Vanderburgh County Sheriff's Department Chief Deputy Dave Wedding.

    Sobriety checkpoints happen with less frequency and typically result in far fewer arrests. But the checkpoints double as a deterrent, Wedding said, ideally keeping intoxicated people from ever getting behind the wheel. Their precise location, date and time are never divulged in advance.

    During them, law enforcement adheres to a strict pattern — stopping every third car, for example. Signs must be posted well in advance, giving motorists enough time to turn off if they so choose. If they do continue through, there are no exceptions. Even a city bus or an off-duty police car would be stopped, Wedding said.

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Indiana Law

    Environment - "Benzene-laden groundwater has been seeping into Lake Michigan from an old tank farm at U.S. Steel Gary Works"

    Gitte Laasby reports today in the Gary Post-Tribune in a story that begins:

    For several years, benzene-laden groundwater has been seeping into Lake Michigan from an old tank farm at U.S. Steel Gary Works.

    The company plans to install a $1.4 million system that would treat the benzene starting in August or September. Officials will present the plan to the public at a meeting on Tuesday in Gary.

    U.S. Steel discovered the problem last summer when it tested soil and groundwater near an on-site landfill for contamination as part of a federal order.

    Tamara Ohl, project manager for the U.S. Environmental Protection Agency, said benzene probably leaked from an old tank farm at the coke plant that was demolished years ago. The coke plant is surrounded by a breakwall. When a crack occurred in late 2001, it allowed the movement of groundwater to the lake.

    "We don't know exactly when the plume reached the lake. It was the (monitoring) data from 2008 that really got this going," Ohl said.

    The company found benzene in groundwater in the area of the plume up to 600 times the federal drinking water limit. Contamination is leaking into the lake about a mile from the nearest drinking water intake. * * *

    Ohl said the plume is still seeping into the lake, but the company plans to install a $1.4 million treatment system with 11 wells that will remove the benzene and cycle the water back to the ground.

    "The system will stop the plume. It will capture it and strip the benzene out," she said. "Short of any hiccups, we're expecting they'd start constructing in the next quarter and by the third quarter have it up and running, about August-September."

    U.S. Steel does not plan to repair the breakwall, which would require a permit from the Army Corps of Engineers.

    "U.S. Steel believes that its plans to install the active remediation system ... is more proactive and will achieve the desired results in a much shorter timeframe," U.S. Steel spokeswoman Courtney Boone said in an e-mail.

    Ohl said the company may take other measures after that. She did not know whether U.S. Steel would face fines or other penalties for the contamination.

    Neither EPA nor U.S. Steel knows how much benzene has leaked into Lake Michigan because they have not yet tested the water.

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Environment

    Court - "Fighting Over Child Support After the Pink Slip Arrives"

    Julie Bosman reports today in a story on the front page of the Sunday NY Times. Some quotes from the lengthy story:

    The same story echoed a dozen times through Room E8 of Manhattan Family Court in a single day: fathers, pinched by the recession, pleading for a reduction in child support.

    A salesman at Saks Fifth Avenue who is estranged from his teenage daughter said he feared he would be included in the next round of layoffs expected at his store.

    A man who had been laid off from a factory said he managed to find work at Mets games, but for less pay, $9 an hour. Another man, on the verge of eviction, begged for a break from his $315 monthly payments.

    “Last week was my child’s birthday, and I couldn’t get him a present,” he said, burying his head in his hands. “This is killing me.”

    Since January, Family Court in New York has been filled with urgent requests like these, alarming judges and overwhelming calendars with what are known as modification cases.

    Similar patterns are unfolding across the country: In Clark County, Nev., which includes Las Vegas, the district attorney’s family support division has received an unusually high number of calls from parents who previously paid diligently but are now having trouble.

    The child-support office in Milwaukee saw a 20 percent spike in the number of custodial parents seeking enforcement of support orders last year, with most of the increase coming in the fall as the unemployment rate there began to creep upward.

    To explain why they can no longer pay as much per month, the parents, typically fathers, cite layoffs, cutbacks in work hours and the loss of homes to foreclosure. Presented with documentation of falling incomes and rising expenses, judges often have little choice but to grant the downward adjustments, even in the face of protests from mothers struggling to support children. * * *

    The amount of child support varies based on individual family circumstances, but New York State begins with these guidelines: A noncustodial parent generally pays 17 percent of gross income for one child, 25 percent for two children and up to 35 percent for five or more children, as well as a share of child care, medical and education expenses. * * *

    Lisa J. Marks, the director of Child Support Enforcement in Milwaukee, said her office has seen an influx of noncustodial fathers who have lost jobs in sales, construction and the service industry.

    “We have seen individuals who have had fairly good income, and it’s not there any more,” she said.

    “It’s really a teetering issue for child support offices,” Ms. Marks said. “You have one party who is really desperate because they’re not getting the full amount of support. And their expenses have increased, and their hours are probably decreasing.”

    On the flip side are the fathers, and “they don’t have a job at all anymore,” she said. “You try to maintain fairness.”

    The court will typically order fathers to pay a portion of their unemployment benefits in child support. But if their unemployment runs out, and they have no income, the court will temporarily resort to what is called “open support,” Ms. Marks said. What that means, she explained, is “you don’t have to pay any child support.”

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Courts in general

    Environment - Even more on: Major pipeline break near Indiana border

    Updating this ILB entry from Oct. 5, 2008, Len Wells of the Evansville Courier & Press reports today:

    ELLERY, Ill. — The cost to clean up a massive crude oil spill in rural Wayne County, Ill., last summer now includes the purchase of land most affected by the event.

    Court records reveal Marathon Oil Corp. has spent more than $750,000 to purchase two parcels of land at the center of the spill.

    When Marathon's 20-inch interstate transit line ruptured on Aug. 20, some 5,790 barrels, or 243,180 gallons, of crude oil spilled onto a remote farm northwest of Golden Gate.

    The largest area affected by the spill was a farm known as the Southern Illinois Land Trust, owned by Dr. William E. Ricketts of Crete, Ill. A nearby timber-lined slough, owned by Robert and Janice Anniss of rural Ellery, also was impacted by the spill.

    The high-pressure pipeline that ruptured runs from a tank farm at Patoka, Ill., to Cattletsburg, Ky.

    Deed transfers filed in Wayne County Clerk Donna Endsley's office reveal that Marathon paid the Southern Illinois Land Trust $520,000 for 105.69 acres, or just more than $4,900 per acre. * * *

    "Considering the geographic area covered, the impact appears to be fairly minimal," said Illinois EPA spokesperson Maggie Carson. Because of its remote location, no population centers were affected, and emergency workers were able to keep the oil out of the nearby Little Wabash River, which is the drinking water source for several small communities in Wayne County.

    Posted by Marcia Oddi on Sunday, March 29, 2009
    Posted to Environment

    Saturday, March 28, 2009

    Courts - "Residents of Luzerne County, Pa., wondered what led two judges to send thousands of juveniles to detention centers in return for kickbacks — and why they weren’t stopped"

    Updating this ILB entry from March 26th, Ian Urbina has a long story in the NY Times today headed "Judges’ Kickback Scheme Thrived Despite Red Flags ." Here are a few quotes:

    WILKES-BARRE, Pa. — Things were different in the Luzerne County juvenile courtroom, and everyone knew it. Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway. * * *

    While the scandal continues to ripple nationally as legal experts debate whether juvenile courts have sufficient oversight, here in Luzerne County people are grappling with more immediate questions: How did two native sons, elected twice to the bench to protect children and serve justice, decide to do the opposite? And why did no one stop them?

    After reading the story, it still isn't clear to me how this went on unchecked for so long. In the third page of today's story there is mention that at some point federal authorities began investigating the judges, and "in a separate review, state auditors found that the detention centers were systematically overbilling the county ."

    I can't help thinking that some of the problems may be tied to the inaccessibility of juvenile court proceedings and records to the public. I found online a 10-year report on Access to Juvenile Courts, that goes through each state's laws. At least in 1998, Pennsylvania had this law:

    Pa. Cons. Stat. Ann. tit. 42 § 6307 (1998): Members of the public are not allowed to inspect court files unless a person obtains permission from the court and the court finds that he/she has a legitimate interest in the case or the court.
    In other words, it would have been difficult for a parent or a reporter to even begin to explore the possibility of a pattern of abuse, because the judge controlled access to the records. Similarly, juvenile proceedings were/are closed to the press and public.

    [MORE] How Appealing has just posted link to this story from The Citizens Voice of Wilkes-Barre, Pennsylvania, reported by Michael R. Sisak. Some quotes:

    The prosecutors who worked in disgraced Judge Mark A. Ciavarella Jr.’s courtroom share part of the blame for the injustices he perpetrated on thousands of Luzerne County juveniles, said Marsha Levick, the legal director of the Juvenile Law Center.

    “There were other people in the courtroom who stood by here for five years while these kids’ rights were being violated,” Levick said Thursday, after the state Supreme Court authorized Judge Arthur Grim to clear the records of hundreds of the lowest-level offenders who appeared before Ciavarella without an attorney between 2003 and May 2008.

    “All of us who work in the system have a collective responsibility to make sure that kids’ rights are enforced,” Levick said. “The difference between a prosecutor and a defense attorney is that the prosecutor represents the victim and they represent the commonwealth — they really stand for justice in that courtroom. I really wish they had not stood by silently.”

    District Attorney Jackie Musto Carroll, who has held the office since January 2008, said the prosecutors who handled juvenile cases were told the young defendants had waived their right to counsel and had no reason to suspect wrongdoing.

    “Nobody knew the judge was committing any crimes at the time,” Musto Carroll said. “The judge was considered a zero-tolerance, very strict sentencing judge. There was nothing to indicate the judge was doing anything out of the ordinary.”

    The Juvenile Law Center filed the petition with the state Supreme Court last April that ultimately led to the court’s ruling Thursday. The Philadelphia-based organization accused Ciavarella of rushing hundreds of young defendants through the system without properly apprising them of their rights to an attorney. Ciavarella limited the closed-door hearings to about 90 seconds each, the Juvenile Law Center said.

    The Wilkes-Barre paper has assembled a large archive of documents, earlier stories, and the like. My only quibble is that the items in the list are not identified by date - you have to access the item to learn its date.

    Here is a story from Feb. 22nd, 2009, reported by Dave Janoski, that begins:

    For years, Luzerne County Judge Mark A. Ciavarella Jr. denied juvenile defendants their rights, imprisoned them over the recommendations of probation officers and took millions in kickbacks from the co-owner of two juvenile detention centers that earned nearly $30 million with his help, according to lawsuits and federal prosecutors.

    Ciavarella did all that in a courtroom that was closed to the public and the media, but open to prosecutors, public defenders, police and probation officials. Why didn’t anyone speak up?

    Interviews and court documents portray Ciavarella’s courtroom as a place where the outcome of cases was decided well before a juvenile arrived for a hearing that could take mere minutes. Wielding tight control of the juvenile probation department and his courtroom, Ciavarella pressured court staff to recommend detention, even in cases where staffers believed detention wasn’t warranted, federal prosecutors allege.

    Posted by Marcia Oddi on Saturday, March 28, 2009
    Posted to Courts in general

    Ind. Courts - "Evansville attorney found guilty of theft again"

    Libby Keeling reports in the Evansville Courier & Press in a long story:

    An Evansville attorney who pleaded guilty to bilking clients out of more than $58,000 to fuel a gambling addiction now has been convicted of stealing about $33,000 from a company that hired him after his license to practice law was suspended.

    Allan G. Loosemore Jr., 53, was found guilty of one count of forgery, a class C felony, and 14 counts of theft, a class D felony, Wednesday after a three-day trial in Vanderburgh Circuit Court. * * *

    In interviews with the Courier & Press in 2002, Loosemore said he turned to gambling as a way to cope with personal and professional setbacks.

    In 2003, he pleaded guilty to theft, forgery and fraud and was sentenced to eight years on reporting probation and ordered to pay full restitution of more than $58,000.

    Posted by Marcia Oddi on Saturday, March 28, 2009
    Posted to Ind. Trial Ct. Decisions

    Friday, March 27, 2009

    Law - "Data Mining Case Heads to the Supreme Court"

    Tony Mauro reports today in The Blog of Legal Times in an entry that begins:

    Two major publishers of health care data filed a petition today at the Supreme Court, raising cutting-edge questions about whether increasingly widespread data mining that is used for commercial purposes is protected by the First Amendment.

    The petition, titled IMS Health, Inc. and Verispan LLC v. Ayotte, is an appeal of a controversial ruling last November by the U.S. Court of Appeals for the 1st Circuit. The appeals panel ruled that the data about drug prescriptions gathered by the companies is outside the protection of the First Amendment, in part because it has "scant societal value," in the same way that obscenity is not protected speech. The ruling written by Judge Bruce Selya said the pharmaceutical data at issue in the case was to be viewed, not as speech but as a commodity like "beef jerky" that can be regulated without running afoul of the First Amendment.

    The appeals court upheld a 2006 New Hampshire law that banned using information about a doctor's prescribing history for the purpose of increasing drug sales. The target of the law was the business in which publishers obtain data from pharmacies about a doctor's prescription preferences and illnesses the doctor has treated (without patients' names) and then sell the data to pharmaceutical companies.

    Lyle Denniston of SCOTUSLaw Blog has an entry about IMS Health v. Ayotte this afternoon complete with links to the petition and the lower court rulings.

    Reading all this, I recalled yesterday's NY Times story by Stephanie Clifford headed "Online Age Quiz Is a Window for Drug Makers." It is not directly on point, but interesting, and begins:

    Americans yearn to be young. So it is little wonder that RealAge, which promises to help shave years off your age, has become one of the most popular tests on the Internet.

    According to RealAge, more than 27 million people have taken the test, which asks 150 or so questions about lifestyle and family history to assign a “biological age,” how young or old your habits make you. Then, RealAge makes recommendations on how to get “younger,” like taking multivitamins, eating breakfast and flossing your teeth. Nine million of those people have signed up to become RealAge members.

    But while RealAge promotes better living through nonmedical solutions, the site makes its money by selling better living through drugs.

    Pharmaceutical companies pay RealAge to compile test results of RealAge members and send them marketing messages by e-mail. The drug companies can even use RealAge answers to find people who show symptoms of a disease — and begin sending them messages about it even before the people have received a diagnosis from their doctors.

    Posted by Marcia Oddi on Friday, March 27, 2009
    Posted to General Law Related

    Ind. Decisions - Court of Appeals issues 1 today (and 16 NFP)

    For publication opinions today (1):

    In Richard Moore v. Wells Fargo Construction, a 15-page opinion, Judge Najam writes:

    Richard Moore appeals from the trial court's judgment in favor of Wells Fargo Construction (“Wells Fargo”), formerly known as The CIT Group/Equipment Financing, Inc. (“CIT”), on its complaint to recover a deficiency owed under a personal guaranty. Moore raises two issues for review: 1. Whether the evidence is sufficient to support the trial court's finding that Wells Fargo conducted the sale of a repossessed excavator in a commercially reasonable fashion. 2. Whether Wells Fargo provided adequate notice to Moore of the sale of the excavator. We affirm. * * *

    [1] We agree with Moore that Section 26-1-9.1-610 requires sales such as the instant one to be commercially reasonable. But the plain language of the Guaranty shows that Moore intended to waive any claim regarding the commercial reasonableness of a sale of the Excavator. Thus, under the Guaranty, Moore has waived that claim. * * *

    [2] Specifically, Moore contends that CIT did not inform him of the physical location for the proposed sale of the Excavator through the internet auction website. But, aside from stating simply that a physical location is required when the sale is to be conducted through an internet auction, Moore does not support his argument with cogent reasoning and, therefore, he has waived it. See App. R. 46(A)(8)(a).

    Nevertheless, again, the relevant statute provides that the notice shall state the “time and place of a public disposition.” Ind. Code § 26-1-9.1-613. The Second Notice informed Moore that CIT intended to sell the Excavator in a public auction over the internet. The notice listed the date and web address for the auction and the physical address of the auction company. An internet auction has no physical location and is not a situs in the traditional sense. But the web address of the auction and the physical address of the auction company adequately apprised Moore where the auction would be held, allowing him to monitor or even participate in the auction. Thus, we conclude that the Second Notice, containing the web address of the auction and the physical address of the auction company, satisfies the location requirement in Indiana Code Section 26-1-9.1- 613(1)(E). As such, Moore's argument that the Second Notice was inadequate must fail. [ILB emphasis]

    NFP civil opinions today (2):

    Term. of Parent-Child Rel. of J.C. & A.C.; O.C. v. Indiana Dept. of Child Services (NFP)

    The Invol. Term. of Parent-Child Rel. of S.H., Mae Hardison and James Hardison v. Marion Co. Dept. of Child Svcs. (NFP)

    NFP criminal opinions today (14):

    In the Matter of R.P. v. State of Indiana (NFP)

    Vincent Gentile v. State of Indiana (NFP)

    Shedrick B. Duckett v. State of Indiana (NFP)

    Carl E. Carey v. State of Indiana (NFP)

    Derrick Williams v. State of Indiana (NFP)

    Jonathan D. Skinner v. State of Indiana (NFP)

    Craig Douglas v. State of Indiana (NFP)

    Nathaniel Osborne v. State of Indiana (NFP)

    Johnathan Parker v. State of Indiana (NFP)

    Roscoe Clark v. State of Indiana (NFP)

    Robert Woolsey v. State of Indiana (NFP)

    Jamie Long v. State of Indiana (NFP)

    Joseph Thompson v. State of Indiana (NFP)

    Joe Edward Perigan v. State of Indiana (NFP)

    Posted by Marcia Oddi on Friday, March 27, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - One Indiana 7th Circuit opinion today

    In Bynum v. Lemmon (ND Ind., Judge Simon), a 17-page opinion, Judge Rovner concludes:

    The district court correctly denied Bynum’s petition for a writ of habeas corpus. Bynum’s claim that his trial counsel was ineffective for failing to put him on the stand to testify at his suppression hearing required him to show both that counsel was ineffective and that counsel’s mistakes prejudiced him. Although we conclude that counsel was ineffective, Bynum was not prejudiced. The state courts ruled that it was not reasonably probable that, had Bynum testified, he would have succeeded on his motion to suppress. This conclusion was neither contrary to Supreme Court precedent nor based on an unreasonable determination of the facts in light of the evidence presented at Bynum’s trial and at the postconviction evidentiary hearing. The state court therefore reasonably concluded that Bynum was not prejudiced by his attorney’s failure to have him testify at the suppression hearing. AFFIRMED.

    Posted by Marcia Oddi on Friday, March 27, 2009
    Posted to Ind. (7th Cir.) Decisions

    Courts - "Students Sue Prosecutor in Cellphone Photos Case "

    The NY Times has had stories two days in a row now on “'sexting': the increasingly popular phenomenon of nude or seminude photos sent over wireless phones."

    Some quotes from yesterday's story, by Sean D. Hamill:

    “They said they had a full-bodied naked picture of me, but I knew I’d never had any naked picture taken of me,” the student, Marissa Miller, 15, recalled of the Feb. 10 telephone call to her mother as the two were having lunch together at Tunkhannock Area High School. Marissa is a freshman at the school, where her mother, MaryJo, works with special education students.

    The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.

    Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.

    It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

    But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick. * * *

    “Prosecutors should not be using a nuclear-weapon-type charge like child pornography against kids who have no criminal intent and are merely doing stupid things,” said Witold J. Walczak, a lawyer with the American Civil Liberties Union of Pennsylvania, which represents the families. * * *

    In large part because sexting cases are so new, local communities across the country vary greatly in their handling, from filing child pornography charges against the teenagers involved to alerting parents and letting them deal with it.

    Lee Tien, a senior staff lawyer for the Electronic Frontier Foundation, a nonprofit group in San Francisco that studies technology issues, said such cases also raise thorny legal issues around the searching of students’ cellphones, many of which are seized when they are used during class.

    “If they confiscate the phone, that’s reasonable to hold it for the day and return it,” Mr. Tien said. “But there’s a serious question of whether that justifies going through the cellphone.”

    The lawsuit filed Wednesday does not address those issues, or the role Tunkhannock Area High School might have played in the investigation, but Mr. Walczak said the A.C.L.U. was “assessing possible legal action against the school.”

    “Those cellphones contain highly personal information protected by the Fourth Amendment,” he said.

    Today's story, by Hamill and Liz Robbins, reports:
    SCRANTON, Pa. — A federal judge said at a hearing on Thursday that “serious constitutional issues” were raised in a lawsuit filed by three teenage girls and their mothers against a county district attorney who threatened to arrest the students on pornography charges after seminude photographs of them appeared on other students’ cellphones.

    “It seems like the children seemed to be the victims and the perpetrators here,” the judge, James M. Munley, told a lawyer for the district attorney, George P. Skumanick of Wyoming County. “How does that make sense?”

    The lawyer, A. James Hailstone, said state law “doesn’t distinguish between who took the picture and who was in it.”

    Judge Munley, of the Federal District Court for the Middle District of Pennsylvania, said he would not rule until early next week on a request by a lawyer for the girls and their mothers for a temporary restraining order forbidding Mr. Skumanick from filing the charges, which they contend are retaliation for the parents asserting their First and Fourteenth Amendment rights to oppose his deal.

    Posted by Marcia Oddi on Friday, March 27, 2009
    Posted to Courts in general

    Law - "Cameras to Catch Speeders and Scofflaws Are Spreading -- And Sparking Road Rage"

    Supplementing this ILB entry from March 24th, today's Wall Street Journal has a lengthy article by William M. Bulkeley. The page 1 story, headed "Get the Feeling You're Being Watched? If You're Driving, You Just Might Be," begins:

    The village of Schaumburg, Ill., installed a camera at Woodfield Mall last November to film cars that were running red lights, then used the footage to issue citations. Results were astonishing. The town issued $1 million in fines in just three months.

    But drivers caught by the unforgiving enforcement -- which mainly snared those who didn't come to a full stop before turning right on red -- exploded in anger. Many vowed to stop shopping at the mall unless the camera was turned off. The village stopped monitoring right turns at the intersection in January.

    Once a rarity, traffic cameras are filming away across the country. And they're not just focusing their sights on red-light runners. The latest technology includes cameras that keep tabs on highways to catch speeders in the act and infrared license-plate readers that nab ticket and tax scofflaws.

    Drivers -- many accusing law enforcement of using spy tactics to trap unsuspecting citizens -- are fighting back with everything from pick axes to camera-blocking Santa Clauses. They're moving beyond radar detectors and CB radios to wage their own tech war against detection, using sprays that promise to blur license numbers and Web sites that plot the cameras' locations and offer tips to beat them.

    Cities and states say the devices can improve safety. They also have the added bonus of bringing in revenue in tight times. But critics point to research showing cameras can actually lead to more rear-end accidents because drivers often slam their brakes when they see signs warning them of cameras in the area. Others are angry that the cameras are operated by for-profit companies that typically make around $5,000 per camera each month.

    Meanwhile, also today, the NWI Times has this AP story by John O'Connor, headed "Illinois legislators considering speed camera bill."

    Posted by Marcia Oddi on Friday, March 27, 2009
    Posted to General Law Related

    Ind. Gov't. - "IDEM calendar complaint rejected"

    Gitte Laasby reports today in the Gary Post-Tribune:

    MERRILLVILLE -- Indiana law does not allow the public to access officials' calendars and meeting schedules.

    On that basis, Indiana Public Access Counselor Heather Neal rejected a complaint by the Post-Tribune that the Indiana Department of Environmental Management refused to release copies of electronic calendars. The calendars show when IDEM officials met with BP officials regarding the company's air permit.

    An Indiana Court of Appeals ruling from 1998 and two previous public access counselor opinions stated that calendars are not subject to disclosure because they are the equivalent of a diary or journal.

    The Post-Tribune had argued that the calendars in question are more like a message board than a diary or journal because they are electronic and because dozens of people access them and make changes to them. The public access counselor disagreed.

    "I am not persuaded that the features of (the program) Microsoft Outlook make the employee calendars different" than the calendars in the other cases, Neal wrote in an unofficial opinion letter to the Post-Tribune on Thursday.

    "It is my understanding that each of those employees would need to be authorized to view the calendar (i.e. issued a user identification and password by the state). It is also possible for a user to mark information maintained in the Outlook calendar as private. In other words, the user is able to share certain information and maintain other information as private." * * *

    Hoosier State Press Association General Counsel Steve Key said the opinion makes it more difficult for the public to hold a taxpayer-funded agency accountable for what it does.

    "Obviously it makes it more difficult for the public to be able to determine answers to questions such as, who's meeting with whom, how much time has been spent on this particular subject matter or another," Key said. "It has expanded the journal or diary exception beyond what I believe was the original intent. (But) the access counselor is stuck with the case law that's there. The public access counselor isn't charged or directed to give their opinion as far as what the law should be, but what the law is."

    The PAC's informal opinion isn't yet available online, but when it is, it should be posted here.

    Posted by Marcia Oddi on Friday, March 27, 2009
    Posted to Indiana Government

    Thursday, March 26, 2009

    Courts - Still more on: "The Indianapolis Museum of Art wanted its Caravaggio back"

    Updating this ILB entry from earlier today, where I wondered whether the IMA's Caravaggio, the Sleeping Cupid, was still tied up in the New York litigation, I'm happy to report the good news I received late this afternoon:

    Hi Marcia, I wanted to let you know that we did, indeed, receive the painting back. In fact, it came back to the IMA shortly after the Oct. 2007 hearing, and it has been on view in our European galleries. Please let me know if you need any additional information.

    Katie Zarich
    Acting Director of Public Affairs
    Indianapolis Museum of Art

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Courts

    Courts - Yet more on: "Pa. judges accused of jailing kids for cash" [Updated]

    The ILB's most recent entry on this scandal is here, from Feb. 14th.

    This afternoon the AP is reporting:

    ALLENTOWN, Pa. (AP) -- Pennsylvania's highest court on Thursday overturned hundreds of juvenile convictions issued by a corrupt judge accused of taking millions of dollars in kickbacks to send kids to privately owned detention centers.

    The state Supreme Court ruled that former Luzerne County President Judge Mark Ciavarella violated the constitutional rights of youth offenders who appeared in his courtroom without lawyers between 2003 and 2008.

    ''Today's order is not intended to be a quick fix,'' Chief Justice Ronald Castille said in a statement. ''It's going to take some time, but the Supreme Court is committed to righting whatever wrong was perpetrated on Luzerne's juveniles and their families.''

    In one of the most egregious cases of judicial corruption ever seen, federal prosecutors charged Ciavarella and another Luzerne County judge, Michael Conahan, with taking $2.6 million in payoffs to put juvenile offenders in private lockups.

    Howard Bashman's How Appealing has collected links to some other reports, plus the order of the Supreme Court of Pennsylvania.

    [Updated at 6:30 PM] John Schwartz now has a NY Times story on the overturning of the convictions. It begins:

    The Supreme Court of Pennsylvania wiped the slate clean on Thursday for hundreds of young people who had been sentenced by a corrupt judge.

    The young people had been sent to privately run detention centers between 2003 and 2008 as part of a judicial kickback scheme that shocked Pennsylvania and the nation. The judge in the cases, Mark A. Ciavarella Jr., of Luzerne County, is one of two judges who pleaded guilty last month to wire fraud and conspiracy for taking more than $2.6 million in kickbacks.

    “This order represents another positive step in the Court’s resolve to restore public trust and confidence in the juvenile justice system of Luzerne County,” said Ronald D. Castille, the chief judge of Pennsylvania in a statement.

    The exact number of records to be expunged was not stated in the court’s order; a special master is investigating the individual cases.

    From later in the story:
    The court on Thursday authorized the master to vacate judgments and consent decrees and to expunge the records where necessary. The special master had submitted an 11-page report that found “there was routine deprivation of children’s constitutional rights to appear before an impartial tribunal and to have an opportunity to be heard.”

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Courts

    Ind. Law - "Indy law firm Bose McKinney & Evans cutting 25"

    The Indianapolis Star is reporting, via a statement from the firm’s managing partner:

    Bose McKinney & Evans LLP announced today that the firm is cutting 10 attorney, 2 paralegal and 13 staff positions.

    These reductions affect 7 percent of the attorneys and 11 percent of the staff of the firm, the firm’s managing partner, Kendall Crook, said in a statement.

    “We regret the need to cut these attorney and staff positions. However, the recession continues to affect our clients and certain segments of our practice, and these steps were necessary to realign the firm to meet current economic realities," Crook said.

    This supplements an ILB entry from earlier today.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Law

    Law - NY Times editorial on Dawn Johnsen

    "A Legal Adviser Worthy of the Job " is the headline today to this editorial in the NY Times. Some quotes:

    In the Bush administration, the Office of Legal Counsel gave a green light to many objectionable policies, from a lawless expansion of executive power to the use of torture. President Obama has nominated Dawn Johnsen to lead the office, but her nomination is being attacked by Republican senators who still prefer the Bush approach. Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs. The Senate should confirm her without further delay. * * *

    Republican senators’ harsh criticism of the nomination is groundless. They have questioned Ms. Johnsen’s commitment to fighting terrorism, but their main complaint seems to be her opposition to torture and to extreme views on presidential power. Her critics are outraged that early in her career, Ms. Johnsen worked for an abortion-rights advocacy group, but her views on abortion are hardly unusual.

    Senator John Cornyn, a Republican of Texas, has made the bizarre accusation that despite her impressive legal record, Ms. Johnsen has not demonstrated the “requisite seriousness” for the job. It is an odd charge coming from someone who was a staunch defender of former Attorney General Alberto Gonzales, to whom that description actually applied.

    Ms. Johnsen made it through the Judiciary Committee on a party-line vote, and there is talk that Republicans may try to filibuster her nomination. That would be an outrage. There is no corner of the executive branch in greater need of a new direction than the Office of Legal Counsel. The impressive Ms. Johnsen is an excellent choice to provide it.

    Here are earlier ILB entries on Ms. Johnsen.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to General Law Related

    Ind. Courts - "New judge appointed for Wayne County"

    Bill Engle reports in the Richmond Palladium-Item in a story that begins:

    Hagerstown native Chuck Todd will take his seat on the bench later this spring as the next Wayne Superior Court 1 judge in Wayne County.
    Advertisement

    Indiana Gov. Mitch Daniels today announced his appointment of Todd to replace P. Thomas Snow, who left in March to become chairman of the Indiana Alcohol & Tobacco Commission.

    "Chuck Todd is a very talented and experienced jurist and a great community leader," Daniels said in making the announcement. "I'm confident he will make an excellent judge and will serve the citizens of Wayne County with distinction."

    Todd was selected from a final pool of five candidates that included Wayne Superior Court 3 Judge Darrin Dolehanty and local attorneys Nancy Gardner Wissel, Steve Rabe and Thomas Seal.

    Todd, who has been in private practice in Cambridge City since 1998, said he would now work with the governor's office to close out his private practice and transition onto the Superior 1 bench.

    He is expected to be seated sometime after June 1.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Courts

    Ind. Law - "Consumer Advocate Abby Kuzma Chosen by Attorney General to Lead Consumer Protection Efforts Statewide"

    A release from Attorney General Zoeller's office today reads in part:

    INDIANAPOLIS — Today one of central Indiana’s leading consumer advocates was named to an important position within the Office of the Indiana Attorney General, protecting consumers’ rights.

    Indiana Attorney General Greg Zoeller announced he has appointed Abigail Kuzma to lead his office’s Consumer Protection Division or CPD. Kuzma is the longtime executive director of the nonprofit Neighborhood Christian Legal Clinic in Indianapolis, and she is leaving that organization in order to join the Office of the Indiana Attorney General as director of consumer protection.

    “Abby is a proven consumer advocate,” Zoeller said. “She joins the office with an arsenal of experience and a solid reputation of protecting some of our state’s most vulnerable citizens. Abby will be working with a wide variety of organizations and individuals to enhance our consumer education and advocacy efforts in every corner of the state.” * * *

    Kuzma’s experience also includes five years working in Washington, D.C., first as a legislative assistant to Senator Richard Lugar, R-Ind., followed by positions with the U.S. Senate Committee of the Judiciary, including minority chief counsel and staff director for the Subcommittee on Patents, Copyrights and Trademarks.

    In 1994 she returned to Indiana and co-founded the Neighborhood Christian Legal Clinic, a faith-based, non-profit corporation that provides legal representation and preventive law education to low-income families in central Indiana. NCLC directly serves more than 8,000 clients per year and was recognized with the 2004 Indiana Achievement Award for Impact in the Community for its immigrant-outreach program. NCLC also has been honored with the 2006 Indianapolis Bar Foundation Law-Related Education Award; the 2008 Latino Coalition Against Domestic and Sexual Violence Advocate Award; and the 2008 Indiana Lawyer Nonprofit Diversity in Practice Award.

    Kuzma’s prior experience also includes a position as a U.S. District Court magistrate’s law clerk for the Southern District of Indiana and legislative counsel for the Indiana Legislative Services Agency. Kuzma earned a Bachelor of Arts degree with honors in philosophy from the University of Wisconsin and is a graduate of the Indiana University School of Law.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Law

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

    For publication opinions today (1):

    In Indiana Family and Social Services Administration v. Robert T. Pickett, a 22-page opinion, Judge Crone writes:

    The Indiana Family and Social Services Administration (“IFSSA”) appeals a trial court order that reversed an administrative decision sustaining the denial of Robert Pickett’s Medicaid disability application. We affirm.

    This case presents two intertwined issues concerning the decision of the administrative law judge (“ALJ”). We will address the following restated issues together: I. Whether the ALJ’s findings of fact and conclusions were supported by substantial evidence and, if so, whether the findings and conclusions support the ultimate conclusion that Pickett is not disabled; and II. Whether the ALJ erred by failing to address relevant medical records regarding Pickett. * * *

    In sum, the only evidence that actually addresses Pickett’s capacity for sustained activity on a regular basis, his intellectual or sensory functions as they relate to his vocational capacity, and/or his ability to perform necessary reasoning and direction- following, paints the same picture of substantial functional limitation. See 405 IAC 2-2- 3(a)(2)(A). Moreover, these substantial functional limitations, combined with Pickett’s limited education and vocationally irrelevant sporadic employment history clearly show that Pickett’s multiple mental impairments substantially impair his ability to perform labor or services or to engage in a useful occupation. 405 IAC 2-2-3(a)(2). That showing, plus the undisputed, continuous, verifiable nature of Pickett’s bi-polar disorder, borderline personality disorder, polysubstance abuse, and alcoholism, plus the fact that Pickett receives SSI, leads to the inescapable conclusion that he is eligible for Medicaid disability. Ind. Code § 12-14-15-1. Accordingly, the ALJ’s decision to the contrary was unsupported by substantial evidence. The administrative decision did not demonstrate a rational connection between the facts found and the applicable law. As set out supra, the findings neither supported nor contradicted the conclusion that Pickett’s mental illnesses and substance abuse problems do not substantially impair his ability to perform labor or services or engage in a useful occupation. The only evidence that touched on this central question refuted the conclusion reached by the ALJ. Therefore, we affirm the trial court’s reinstatement of Pickett’s Medicaid disability benefits.

    NFP civil opinions today (1):

    In the Matter of T.L. and J.L., T.P. v. Marion Co. Dept. of Child Svcs. (NFP) - "Appellant-respondent T.P. (“Mother”) appeals the trial court’s order declaring her minor children, T.L. and J.L., to be Children in Need of Services (CHINS). Mother argues that there is insufficient evidence supporting the trial court’s CHINS determination. Finding no error, we affirm. "

    NFP criminal opinions today (4):

    Russell Allender v. State of Indiana (NFP)

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

    Sandy Dawson v. State of Indiana (NFP)

    Servan Allen v. State of Indiana (NFP)

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Law - Terre Haute Board of Public Works nixes contract with Indy law firm; Bose layoffs

    An interesting story by Arthur E. Foulkes that appeared earlier this month in the Terre Haute Tribune Star. The story begins:

    The Terre Haute Board of Public Works and Safety on Monday rejected a proposed contract with an Indianapolis law firm that has ties to top city officials.

    The board voted 2-2 when asked to approve a contract that would have hired the law firm of Bose, McKinney and Evans to help the city in upcoming contract negotiations with the firefighters union.

    The Bose law firm is representing Mayor Duke Bennett in his legal fight with former Mayor Kevin Burke. It also employs the brother-in-law of City Attorney Chou-il Lee.

    The board’s tie vote means a motion to approve the contract failed.

    Of the six bids received by the city, the Bose Law Firm’s bid was “the cheapest by far,” Lee said after the meeting. Bose offered to help with the contract negotiations for $235 per hour. The second-lowest bid, from the Indianapolis law firm of Baker and Daniels, was for $295 per hour, Lee said.

    “To us, we trust you,” board member Jeff Perry told Lee, who recommended the Bose contract for board approval. “But to someone removed from the board … it could be the appearance or the suggestion of impropriety there, and I think that needs to be addressed.”

    “That’s why I disclosed everything,” Lee said after the meeting when asked about the appearance of a conflict of interest. His brother-in-law works as a patent attorney for the Bose law firm and would not have handled the city’s contract negotiations, Lee said. “There is no conflict of interest,” he said.

    No Terre Haute law firms wanted to take part in the firefighter negotiations, the city attorney said when asked why only Indianapolis-based firms submitted bids. The last time a law firm helped the city with firefighter union contract negotiations, the bill came to $27,000, he said.

    Negotiations between the International Association of Firefighters Local 758 and the City of Terre Haute had been scheduled to begin Friday, Lee said. It was unclear Monday afternoon whether the board’s vote will change that, he added.

    The Indianapolis Star on March 14th published a release from Bose that began:
    More than 30 attorneys with the firm Bose McKinney & Evans have been named Indiana Super Lawyers and 15 named Indiana Rising Stars by Law & Politics magazine.
    The ILB is hearing today that Bose has announced significant attorney layoffs. A number of large Chicago law firms have been announcing attorney layoffs over the past months, but this is the first the ILB has heard re Indianapolis attorneys.

    The ILB would be pleased to post the firm's official announcement.

    For a broader view, scroll through the blog Above the Law's unfortunately countless entries headed "Nationwide Layoff Watch."

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Law

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

    In Gross v. Knight (SD Ind., Judge Young), an 11-page opinion, Judge Kanne writes:

    On August 26, 1998, Jeremy Gross shot and killed Christopher Beers while robbing a conve- nience store in Indianapolis. Gross was convicted of murder and sentenced to life in prison without parole, in accordance with a jury’s recommendation. Gross claims that he received ineffective assistance of counsel because his attorney never advised him of his right to testify at the sentencing phase of his trial. The Indiana courts denied Gross post-conviction relief from his sentence, holding that he had suffered no prejudice from his counsel’s conduct. Gross filed a petition for a writ of habeas corpus in the district court, which denied his claim because the state courts reasonably applied federal law. We now affirm. * * *

    The decision of the Indiana Court of Appeals that Gross did not suffer prejudice as required by Strickland was not unreasonable in light of federal law or the facts in the record. Gross has not demonstrated that he would have testified at trial, nor has he convinced us that his testi- mony could have altered his sentence. The judgment of the district court is AFFIRMED.

    In The Cornucopia Institute v. U.S. Dept. Agriculture (WD Wis.), an 8-page opinion, Judge Kanne writes:
    Between August 2005 and Febru- ary 2006, the Cornucopia Institute submitted to the United States Department of Agriculture three separate under the Freedom of Information Act, 5 U.S.C. § 552. FOIA requires that a public agency respond to such requests within twenty days, id. § 552(a)(6)(A), but an agency may extend the period by ten days upon written notice to the party making the request, id. § 552(a)(6)(B). In response to each of these requests, the USDA informed Cornucopia that it was utilizing the permissible ten-day extension, but it then failed to respond within the required time period.

    On April 6, 2006, Cornucopia filed suit in the Western District of Wisconsin, seeking injunctive relief, a writ of mandamus, and attorneys’ fees and costs. On June 1, 2006, while the suit was pending, the USDA produced numerous documents in response to Cornucopia’s requests. The district court dismissed the case, holding that the USDA’s production of the requested documents had rendered Cornucopia’s claim moot. It also denied Cornucopia’s request for attorneys’ fees and costs, finding that it had not “substantially prevailed” under 5 U.S.C. § 552(a)(4)(E), as defined by Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). requests for production of various public documents. * * *

    In conclusion, we hold that Cornucopia’s claims under FOIA are moot and the district court did not err in dismissing the case. Cornucopia requested attorneys’ fees in its prayer for relief, and the district court was free to deny that request after ruling that Cornucopia was not a prevailing party. The judgment of the district court is AFFIRMED.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Ind. (7th Cir.) Decisions

    Ind. Courts - Op-ed piece on merit retention by State Bar President Bill Jonas

    Indiana State Bar Association President Bill Jonas has written a long and thoughtful op-ed piece on judicial retention. You may access the article in its entirety here. Some quotes:

    Now is the time for Hoosiers to speak out in favor of a uniform, non-partisan judicial selection method to insure judicial independence for all of Indiana. If we succeed in this endeavor, we will have taken an important step toward the “more perfect union” that our forefathers envisioned. * * *

    Some argue that Indiana’s system of electing trial judges is working well. Consider, however, two events from our state during the first week of March. First is the settlement of a long-running multi-party dispute between the mayor of Muncie and her political allies, the Delaware County Prosecutor and his political allies, and Delaware County government. In a March 6 story printed by the Muncie Star-Press, Muncie Mayor Sharon McShurley stated “It was clear that justice was for sale in Delaware County.”

    The same day, the Indiana Supreme Court resolved disciplinary charges against a former LaPorte County Senior Judge who resigned from the bench and from the practice of law. Chief Justice Shepard wrote:

    The charges stem from the judge’s conduct in two separate cases. In the first, [it was alleged] that [the judge], when he was the elected judge, suspended a significant portion of a man’s prison term … in exchange for the man’s father’s $100,000 contribution to two court programs. [T]he second allegation charges that [the judge] … instituted contempt proceedings against the Sheriff of LaPorte County for having lawfully turned over [the judge’s] daughter-in-law’s nephew to Michigan authorities, then continued to preside over the nephew’s Indiana case."

    * * * For the last 75 years no state has adopted anything other than a merit-based method of judicial selection. Over this time period, professional and academic thought has united in the view that best governmental practices dictate a judiciary selected, insofar as possible, by merit selection. This view has been endorsed by the Lake County Bar Association, St. Joseph County Bar Association, Indiana State Bar Association, the Indiana Judicial Conference, the National Center for State Courts and the American Bar Association-- and by the League of Women Voters and St. Joseph County Chamber of Commerce. It has the editorial endorsement of the South Bend Tribune and The Indiana Lawyer as well.

    The Indiana State Bar Association has repeatedly endorsed merit-retention for judges, most recently in the summer of 2008 when its board voted to support an effort to create a uniform, statewide plan for merit-retention of trial judges. Merit-retention, not partisan political election, is the preferred method of judicial selection for those who want trial judges free to make rulings on the facts and the law, and not out of fear or in search of favor. Adopting merit-retention statewide will bring better government; it is a move which will further our pursuit of that “more perfect union” our forefathers began.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Courts

    Courts - More on: "The Indianapolis Museum of Art wanted its Caravaggio back"

    Some of you may remember this ILB entry from October 20, 2007.

    Today the NY Times has this report by James Barron headed "Manhattan Art Dealer Is Indicted ." It begins:

    A noted Upper East Side art dealer who had been accused of stealing from investors and customers who consigned artwork to him has been indicted by a grand jury, the Manhattan District Attorney said Thursday.

    The specific charges against the dealer, Lawrence B. Salander, were not released. He was arrested at his home in upstate Millbrook, N.Y., on Thursday morning. Prosecutors scheduled a news conference at 11:30 a.m. Mr. Salander’s business, the Salander-O’Reilly Galleries, also was indicted.

    No word in the story on the IMA's Caravaggio, the Sleeping Cupid. From this IMA entry, it is unclear whether The Cupid is still missing. The 2007 story contained this:
    Deborah Mayer, the lawyer for the Indianapolis Museum, said the Caravaggio, “Sleeping Cupid,” had been on loan to the gallery. The museum “is the custodian of the Caravaggio, and is very anxious to get the painting back today, with your honor’s permission,” Ms. Mayer said, adding that the painting was “priceless.”

    Her request drew a chuckle from the judge, and loud guffaws from some of the other lawyers.

    The judge expressed sympathy for the museum’s plight, but decided that it would not be prudent to return any paintings without further investigation.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Courts in general

    Ind. Courts - "Lawsuit targets Lake County polluters" [Updated]

    The AP's Charles Wilson has this story today in the NWI Times. Some quotes:

    INDIANAPOLIS | Ron Kurth grew up in Gary and worked in the steel mills, and he raised his family in the region near the outskirts of Chicago. And he always wondered about the smoke and smog that overcast the Lake Michigan shoreline.

    "It's just a horrible atmosphere ... bringing a family up in this area," he said.

    Kurth, who has a 16-year-old daughter who attends high school in Crown Point, decided someone ought to do something about the pollution, and Wednesday, he did.

    He filed a lawsuit against 11 of Lake County's industries, including U.S. Steel and ArcelorMittal, claiming the air pollution they emit from their smokestacks endangers the long-term health of the region's children. The lawsuit seeks class action status on behalf of thousands of parents and their children in the northwest Indiana county's schools.

    The complaint cites a study that appeared in USA Today earlier this year that reported children in the heavily industrialized county are exposed to higher levels of airborne toxins than elsewhere in the United States, based on EPA data on air quality outside 127,800 schools nationwide.

    Four schools in East Chicago -- Abraham Lincoln Elementary School, Benjamin Franklin Elementary School, East Chicago Lighthouse, and Eugene Field Elementary School -- ranked in the study's first percentile, among the most polluted air. * * *

    The suit seeks unspecified damages and asks the court to order a medical monitoring program to help protect children's health at the defendants' expense.

    Attorney Beth A. Fegan said the 11 defendants were selected based on the study by USA Today and three universities and on Environmental Protection Agency reports.

    Here is a link to the USA Today Special Report on Toxic Air and America's Schools.

    [Updated] Today's Gary Post-Tribune has this story by Gitte Laasby that begins:

    Lake County industries pollute the air so much that schoolchildren in East Chicago face lifelong health issues, including increased risk of cancer, lung damage and mental disabilities.

    So says a Seattle-based law firm. The company filed a class-action lawsuit Wednesday against 11 of Lake County's biggest polluters. A Crown Point dad, Ron Kurth, filed the suit in Lake County Superior Court on behalf of parents whose children have attended Lake County schools.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Environment | Indiana Courts

    Ind. Decisions - "Appeals court slashes molesting sentence: Projected prison time drops from eight to 1½ years"

    So reads the headline to this story by Jeff Parrott in the South Bend Tribune. Some quotes:

    At the sentencing hearing, Frese said he gave Baker the maximum prison term "because there’s a serious concern I have for your danger to young children."

    But the appeals court did not believe Baker "is one of the worst offenders deserving of the maximum sentence." He had no criminal history, had been honorably discharged from the Marines, and suffers from chronic back pain, depression and anxiety after contracting "flesh eating virus syndrome," the court wrote.

    In a 2-1 vote, the appeals court ordered Frese to reduce Baker’s sentence to five years for each count, and to run the sentences concurrently, or at the same time, with two years suspended to be served on probation.

    That means Baker will now receive three years in prison, or a year and a half, after accounting for day-for-day good-time credit. He could be released in early 2010. * * *

    The three-judge appeals panel consisted of Elaine B. Brown, Margret J. Robb and Terry A. Crone.

    Crone, a former St. Joseph Circuit Court judge, dissented from the opinion. Crone wrote that he agreed Baker is not the worst type of offender, but said he still believed the nature of the offenses and Baker’s character support the imposition of consecutive sentences and more prison time than what the appeals court has ordered.

    The opinion, Ronald Baker, v. State of Indiana (NFP), was issued Tuesday.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Courts - More on: "Judge Mary Harper is researching what information jurors are required to provide to attorneys"

    Updating yesterday's ILB entry, the ILB received this note last evening from an Indiana deputy prosecutor:

    Ms. Oddi, In response to your post today on privacy issues in jury questionnaires, I once assisted in the prosecution of a man who had previously been acquitted of murder. This person was also a drug dealer, and in the course of serving a search warrant at his residence a few years later, what did the police discover but the jury questionnaires from the murder trial!

    Needless to say I advised the Court of those facts and ensured all the questionnaires were collected at his drug trial.

    I now do the same at all juries in which I take part. I have had some occasional balking from defense counsel and even some judges, but have never had a problem once I advise the Court of my previous experience. No Judge wants to deal with the possible risks of not collecting those questionnaires.

    Enjoy your blog and read it every day.

    Posted by Marcia Oddi on Thursday, March 26, 2009
    Posted to Indiana Courts

    Wednesday, March 25, 2009

    Ind. Courts - Judge Hamilton hearing set for April 1st

    The Blog of Legal Times reports this afternoon in an entry that begins:

    The next possible battle in the judicial confirmation wars is set for April 1.

    That’s the day the Senate Judiciary Committee is scheduled to hold the first confirmation hearing of the Obama administration for a nominee for the federal bench. The committee announced the hearing date today, though Republicans are asking for a delay.

    See the March 22nd ILB entry, which also references the BLT on Judge Hamilton, and looks at his responses to the questionnaires.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Indiana Courts

    Ind. Decisions - Supreme Court issues another today; and a note

    In Estate of Jerome Mintz v. Connecticut General Life Ins. Co. and Wayne E. Gruber, a 12-page, 5-0 opinion, Justice Rucker writes:

    The Estate of Mintz appeals the trial court‟s grant of summary judgment in favor of Connecticut General Life Insurance Company and Agent Wayne Gruber. We affirm in part and reverse in part the judgment of the trial court.
    [NOTE] The grandparents' rights opinion, summarized in this ILB entry from earlier today, has been removed without explanation from the Court website.

    [MORE] Late this afternoon a note from the Court: "The Indiana Supreme Court handed down an amended opinion to correct an Administrative Rule 9 oversight."

    The ILB has corrected the posted summary to conform.

    The amended opinion now contains this footnote:

    This is an amended opinion with a revised caption that now properly identifies the parties and affected persons in accordance with Indiana Administrative Rule 9(G)(4)(d), which became effective January 1, 2009. This amended opinion replaces a prior version issued earlier today, which inadvertently but incorrectly included the full names of the parents and grandmother of the minor child, contrary to the Rule. These persons had previously been publicly identified in the memorandum decision of the Court of Appeals issued prior to the effective date of the Rule.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Decisions - Court of Appeals issues 7 today (and 10 NFP)

    For publication opinions today (7):

    Deutsche Bank National Trust Co. v. Mark Dill Plumbing Co., Mark E. Neff and Invironmental Technologies - "This appears to be precisely what happened here. Deutsche Bank foreclosed its mortgage without making Appellees parties. Deutsche Bank acknowledges Appellees' liens were properly recorded; its agent that conducted the title search presumably missed them. Accordingly, Deutsche Bank should have known about Appellees' liens. The trial court ordered the property sold to satisfy the liens belonging to Appellees. In light of Watson, the trial court reached the proper result.

    "Because there are no genuine issues of material fact and the law is in Appellees' favor, we affirm the summary judgment for Dill Plumbing, Neff, and Invironmental."

    In Fort Wayne Patrolmen's Benevolent Assoc., Inc. and Michaeline Jones v. The City of Fort Wayne, a 16-page, 2-1 opinion, Judge Bradford concludes:

    In sum, concluding that Officer Jones was not “performing a duty” within the meaning of Indiana Code section 36-8-4-5 at the time of her accident and that the language of the CBA is clear and unambiguous and creates no contractual obligations on behalf of the City apart from those created by section 36-8-4-5, we affirm the trial court?s award of summary judgment in favor of the City. The judgment of the trial court is affirmed.

    MATHIAS, J. concurs.
    BAILEY, J. dissenting with opinion. [which begins, on p.14 of 16] I respectfully dissent from the majority?s decision to affirm the grant of summary judgment in this matter. I do so because I believe that the majority has too narrowly construed the “performance of duties” language of Indiana Code Section 36-8-4-5, which provides for the care of police officers injured or contracting illness as a result of the performance of duties.

    In Kenwal Steel Corp. v. John M. Seyring, an 11-page opinion in an interlocutory appeal, Judge Barnes writes:
    Kenwal Steel Corp. (“Kenwal”) appeals the denial of its motion to dismiss John Seyring's negligence action for lack of subject matter jurisdiction. * * *

    Conclusion. For purposes of Indiana Code Section 22-3-6-1(a), Elwood and Kenwal are joint employers of Seyring, and Seyring is limited to the exclusive remedy provision of the Act. Further, Kenwal did not intentionally waive its right to enforce the exclusive remedy provision of the Act. We reverse.

    In Michael Theotis Strong v. State of Indiana, a 5-page opinion, Judge May concludes:
    Greer received several consecutive sentences for murder and attempted murder. Greer argued the trial court had imposed consecutive sentences in violation of Ind. Code § 35-50-1-2, which places some limitations on consecutive sentences for a single episode of criminal conduct. In a footnote, our Indiana Supreme Court rejected the State’s argument that attempted murder could be treated the same as murder for purposes of Ind. Code § 35-50-1-2. Greer, 684 N.E.2d at 1142 n.7. The Court declined to apply Haggenjos and instead applied Camden. Id.

    In Greer, our Indiana Supreme Court declined to extend the rationale of Haggenjos to another statute. However, the Court did not overrule Haggenjos, and it still stands as the Court’s interpretation of Ind. Code § 35-50-2-2. As such, we must decline Strong’s invitation to apply Camden or Greer. See Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (“Supreme court precedent is binding upon us until it is changed either by that court or by legislative enactment.”), trans. denied 783 N.E.2d 687 (Ind. 2003). Therefore, the trial court correctly concluded Ind. Code § 35-50-2-2 applies to attempted robbery with a deadly weapon.

    David Booker v. State of Indiana - "Although we do not condone the prosecutor's conduct, it was not a discovery violation. Nor is there a reasonable probability that the result would have been different if the prosecutor had promptly disclosed the statement. Booker admitted he fled from a routine traffic stop. Officer Mikulich found thirty baggies of cocaine in Booker's pocket. Two other officers testified they saw Officer Mikulich remove the cocaine from Booker's pocket. The cocaine was entered into evidence, and each of the testifying officers identified Booker in court. There was ample evidence from which the jury could find Booker guilty of dealing in cocaine; therefore, he has not demonstrated he is entitled to a new trial. Affirmed. "

    Reynold Delatorre v. State of Indiana - "Reynold Delatorre appeals his conviction of carrying a handgun without a license. Finding no violation of his Fourth or Fifth Amendment rights, we affirm. "

    Broderick Bullock v. State of Indiana - "Broderick Bullock appeals his conviction of three counts of Class D felony theft for stealing televisions from Wal-Mart on three occasions. We conclude the testimony of the Wal-Mart employee was not incredibly dubious and the other alleged errors are harmless. Therefore, we affirm the convictions. * * *

    "We have viewed the video and acknowledge it is brief and not of excellent quality. However, it is not so poor that we can conclude it is incredibly dubious that a person acquainted with Bullock could identify him in the video. Bullock invites us to reweigh the evidence, which we will not do."

    NFP civil opinions today (0):

    NFP criminal opinions today (10):

    Matthew G. Russ v. State of Indiana (NFP)

    Gary Hempstead v. State of Indiana (NFP)

    Troy D. McCormick v. State of Indiana (NFP)

    Eric Carnell v. State of Indiana (NFP)

    James G. Ascherman v. State of Indiana (NFP)

    Dale A. Harris v. State of Indiana (NFP)

    Michael Wilson v. State of Indiana (NFP)

    Eddie Tillman v. State of Indiana (NFP)

    Rufino Cabrera-Peredo v. State of Indiana (NFP)

    Jasper Lea Adams v. State of Indiana (NFP)

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - Supreme Court decides one today, on grandparents' rights [Corrected]

    In the Matter of the Paternity of K.I., by Grandmother and Next Friend J.I. v. J.H. is a 13-page, 5-0 opinion authored by Justice Rucker, who writes:

    The trial court modified the custody of a minor from the child's maternal grandmother to the child's natural father. The trial court also directed that grandmother be granted visitation consistent with the Indiana Parenting Time Guidelines. We conclude the trial court correctly modified custody but erred in directing the parties to rely on the Guidelines to determine visitation. * * *

    The central issues in this case are: (1) what standard a trial court should apply when ruling on a parent's petition to modify custody of a child who is already in the custody of a third party, and (2) what role, if any, the presumption in favor of the natural parent plays in a modification proceeding. * * *

    I. * * * In essence, although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child's best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter this is no burden at all. More precisely, the burden is minimal. Once this minimal burden is met, the third party must prove by clear and convincing evidence “that the child's best interests are substantially and significantly served by placement with another person.” B.H., 770 N.E.2d at 287. If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the child's natural parent. In this case, because J.I. failed to carry her burden, the trial court properly granted J.H.'s petition to modify custody in J.H.'s favor. On this point we affirm the judgment of the trial court.

    II. In addition to modifying custody in J.H.'s favor, the trial court also ordered “that J.I. is to have visitation pursuant to the non-custodial parent's visitation provided under the Indiana Parenting Time Guidelines.” On cross-appeal J.H.argued the trial court abused its discretion in entering this order because it interferes with his parental rights and K.I.'s relationship with her parents. J.H.agrees that J.I.should have continuing contact with K.I. However, he contends that visitation should not be granted pursuant to the Guidelines. The Court of Appeals tacitly agreed and directed the court on remand to determine whether J.I. should be granted grandparent visitation under Indiana Code section 31- 17-5-1 or de facto custodian visitation under Indiana Code section 31-9-2-35.5.

    We agree that J.I. is not entitled to visitation pursuant to the Indiana Parenting Time Guidelines. * * *

    But we disagree with our colleagues that the de facto custodian statute provides J.I. any relief. More specifically, even assuming J.I. qualifies as a de facto custodian that status bears only on the question of custody. * * * The statute is silent on the question of visitation. In a modification proceeding, once the trial court determines that it is in the child's best interest that custody be granted to the natural parent, we must look elsewhere for guidance on whether and to what extent a third party may be granted visitation. That brings us to our next discussion.

    Although grandparents do not have the legal rights or obligations of parents and do not possess a constitutional liberty interest with their grandchildren, nonetheless Indiana Code section 31-17-5-1, commonly referred to as the Grandparent Visitation Act, represents a Legislative recognition that “a child's best interest is often served by developing and maintaining contact with his or her grandparents.” Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). Thus, in drafting the Act, the Legislature balanced two competing interests: “the rights of the parents to raise their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren.”

    Under the Act, a grandparent may seek visitation only if (1) the child's parent is deceased; (2) the child's parents are divorced; or (3) the child was born out of wedlock, but only if the child's father has established paternity. I.C. § 31-17-5-1. And the trial court may grant visitation if it determines that “visitation rights are in the best interests of the child.” I.C. § 31- 17-5-2. When a trial court enters a decree granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003). In those findings and conclusions, the trial court must address: (1) the presumption that a fit parent acts in his or her child's best interests; (2) the special weight that must be given to a fit parent's decision to deny or limit visitation; (3) whether the grandparent has established that visitation is in the child's best interests; and (4) whether the parent has denied visitation or has simply limited visitation. In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind. Ct. App. 2007); In re Paternity of P.E.M., 818 N.E.2d 32, 37 (Ind. Ct. App. 2004). We also observe that although the amount of visitation is left to the sound discretion of the trial court, "[t]he Grandparent Visitation Act contemplates only 'occasional, temporary visitation' that does not substantially infringe on a parent's fundamental right „to control the upbringing, education, and religious training of their children." Hoeing v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008) (quoting Swartz, 720 N.E.2d at 1221).

    Although this case involves the visitation rights of a grandparent, it was not litigated under the Grandparent Visitation Act. Instead the trial court granted visitation in the context of a custody modification proceeding. And it did so directing visitation pursuant to the Indiana Parenting Time Guidelines. For the reasons previously discussed this was error. We therefore reverse the trial court on this point and remand this cause with instructions to enter appropriate findings and conclusions consistent with this opinion and the Grandparent Visitation Act.

    Conclusion. The judgment of the trial court is affirmed in part and reversed in part. This cause is remanded for further proceedings.

    Corrected: See this entry for explanation.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Decisions - Two interesting non-Indiana opinions today from 7th Circuit

    The first, U.S. v. Approximately 81,454 Cans OF Baby Formula, is a Judge Posner opinion, but it caught my eye because of its name.

    The second, Staub v. Proctor Hospital, a 21-page opinion by Judge Evans, has this intriguing introduction:

    One would guess that the chances are pretty slim that the work of a 17th century French poet would find its way into a Chicago courtroom in 2009. But that’s the situation in this case as we try to make sense out of what has been dubbed the “cat’s paw” theory. The term derives from the fable “The Monkey and the Cat” penned by Jean de La Fontaine (1621-1695). In the tale, a clever—and rather unscrupulous—monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat’s paw is a “tool” or “one used by another to accomplish his purposes.” Webster’s Third New International Dictionary (1976). More on this a little later.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Ind. (7th Cir.) Decisions

    Courts - "What Constitutional Rights Should Schoolchildren Have?"

    Michael C. Dorf, a FindLaw columnist who is the Robert S. Stevens Professor of Law at Cornell University, has a column today on "Two Recent Cases Underscore the Ways in Which Children Are Not Simply Miniature Adults." It begins:

    Two 2008 federal appeals court rulings—one that may be on its way to the U.S. Supreme Court, and another that is already there—raise thorny questions of the extent to which schoolchildren enjoy the protections afforded by the Constitution to adults.

    In Frazier v. Alexandre, the U.S. Court of Appeals for the Eleventh Circuit rejected a constitutional challenge to a Florida law requiring students to recite the Pledge of Allegiance unless they have previously received written permission from their parents excusing them from doing so. Yet the Supreme Court had appeared to hold in 1943, in West Virginia State Board of Educ. v. Barnette,that schoolchildren themselves have the right to decide whether to recite the Pledge, quite apart from their parents' wishes. Accordingly, there is a reasonable prospect that the Court will grant review of the Eleventh Circuit's decision if the plaintiff seeks it.

    Meanwhile, in Redding v. Safford Unified School District,an en banc panel of the U.S. Court of Appeals for the Ninth Circuit allowed a lawsuit challenging the constitutionality of an Arizona middle school's strip search of "a thirteen-year-old girl accused by an unreliable student informant of possessing ibuprofen in violation of school rules" to proceed to trial. The Supreme Court will hear oral argument in Safford Unified next month.

    These two cases, involving alleged violations of rights under the First and Fourth Amendments, respectively, highlight a potential source of confusion in our constitutional law of children's rights. Although it has long been accepted that children have constitutional rights, the law also acknowledges that, contrary to their sometimes creepy depiction in medieval art, children are not simply miniature adults.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Courts in general

    Environment - "EPA to Scrutinize Permits for Mountaintop-Removal Mining"

    The ILB has had many entries on mountaintop mining, including "Coal Industry Wins a Round on Mountaintop Mining" from Feb. 19th.

    Today Juliet Eilperin of the Washington Post has this story, that begins:

    The Environmental Protection Agency put hundreds of mountaintop mining operations on notice that they would be the focus of closer scrutiny yesterday, saying it needs to review their impact on local streams and wetlands before they can move forward.

    The announcement, which outraged mining interests and cheered environmentalists, challenged a Bush administration policy and blocked the effect of a federal court decision that had made it easier for mine operators to dispose of the rubble and sludge created when companies blow off the tops of mountains to get to the coal buried underneath.

    Late last night, the EPA issued an unusual statement saying that the agency "is not halting, holding or placing a moratorium on any of the mining permit applications." But the statement indicated that the EPA would "take a close look" at applications that had been the focus of recent litigation.

    EPA Administrator Lisa P. Jackson also sent letters to the Army Corps of Engineers objecting to proposed operations in West Virginia and Kentucky, saying the two projects pose a serious threat to "aquatic resources of national importance" and should be halted.

    Here is a story from the NY Times. And James Bruggers has this story in the Louisville Courier Journal that begins:
    The Obama administration has begun to put the brakes on the damaging practices of strip mining in the Appalachian Mountains, sharply criticizing proposed permits for two operations -- one of them in Kentucky -- and promising closer scrutiny of many more.

    In taking the actions, U.S. Environmental Protection Agency officials expressed "serious concerns" yesterday about the need to reduce potential damage to water quality caused by mining in the mountains.

    At issue are practices that blast the sides and tops off mountains to get at underground coal seams, and what's done with the waste rock left behind. Typically, mining companies construct "valley fills," which can bury the upper reaches of streams. They first must get permits to do so from the U.S. Army Corps of Engineers.

    The EPA stopped short of using its authority to veto the permits, but environmental activists say the EPA action serves notice to the Corps that it will have to apply more rigorous standards.

    In a statement, EPA administrator Lisa Jackson said the agency "will use the best science and follow the letter of the law in ensuring we are protecting our environment."

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Environment

    Ind. Decisions "Second appeal denied in crash that killed Jimmy DeBoy"

    The Court of Appeals NFP opinion yesterday i n the case of Cesar De la Rosa v. State of Indiana is the subject of a story today by Sophia Voravong in the Lafayette Journal Courier. Some quotes:

    De La Rosa appealed his sentence on grounds that former Tippecanoe Superior Court 1 Judge Don Johnson abused his discretion when he considered the impact suffered by Jimmy's family and De La Rosa's history of substance abuse as aggravating factors.

    But the Indiana Court of Appeals, in a unanimous opinion issued today, disagreed.

    "His actions caused the death of a 9-year-old boy riding his bicycle on the sidewalk," Judge Carr Darden wrote in the nine-page ruling.

    "The character of the offender is reflected in De La Rosa's testimony when he testified that he thought it was 'OK to use marijuana' and 'drink and get behind the wheel' of a vehicle."

    De La Rosa admitted to smoking marijuana and drinking beer with friends the day of the fatal crash. * * *

    An Indiana bill named for Jimmy DeBoy took effect last July. It stiffened penalties for impaired drivers.

    For more, see this ILB entry from March 18, 2008.

    Here is the 2008 law, HEA 1052-2008 (PL 126-2008).

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Law - More on: Governor signs first bill of 2009 session

    Updating yesterday's ILB entry on the Governor's signing of SEA 423, Eric Bradner of the Evansville Courier & Press has this story today. A quote:

    The plant will convert coal into synthetic gas, and under the bill signed Tuesday, the Indiana Finance Authority would act as a go-between for the plant and utilities.

    The Finance Authority would buy the pipeline-quality substitute natural gas and then resell it to Indiana utilities.

    That's a major step forward for Indiana Gasification LLC's bid to build the plant because it will help the developer qualify for nearly $2 billion in federal loan guarantees for construction.

    Daniels said locking in a contract between the Finance Authority and the plant to be located near Rockport would save ratepayers billions of dollars over the 30-year deal by ensuring they're not harmed by up-and-down natural gas market prices.

    Developer William Rosenberg said Tuesday that Indiana Gasification has applied for federal loan guarantees that will cover 80 percent of the funding for the $2.2 billion plant.

    "There's no way you can have this project without a guaranteed market and a loan guarantee," Rosenberg said. "It's impossible in today's market."

    He said Indiana Gasification will be in discussion with both the Finance Authority and the U.S. Department of Energy in the next two or three months, and hopes to have a contract soon for the gas and know if the federal loan application will be approved.

    "It will be an active spring of negotiations with the state and federal government," Rosenberg said.

    Indiana Gasification then would need the approval of the Indiana Utility Regulatory Commission as well as state environmental permits.

    Rosenberg hopes construction on the plant will begin by the end of 2010, with gas production beginning by 2013.

    Rick Callahan of the AP has this story. A quote:
    Daniels said federal agencies forecast that over the long term it will be cheaper "perhaps by a very large margin" to produce synthetic natural gas from coal rather than buying actual natural gas because of market fluctuations.

    But opponents of the bill contend that it could actually lead to higher bills for natural gas users.

    Kerwin Olson, program director for the Citizens Action Coalition of Indiana, said that last year coal prices doubled even as natural gas prices were going down.

    "Certainly the price of coal is going to affect the cost of this synthetic natural gas," he said. "As far as the ratepayer impact goes, it's unthinkable for us that the state would force ratepayers to enter into a 30-year contract with no review of the price whatsoever.

    "The way we see it, that's an erosion of consumer and ratepayer protection."

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Environment | Indiana Law

    Ind. Courts - "Judge Mary Harper is researching what information jurors are required to provide to attorneys"

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

    VALPARAISO -- A county judge is researching protection of jurors after a Portage man attempted to contact the jury members who found him guilty.

    Because of the actions of Thaddeus Rodriguez Sr., 37, an inactive member of the East Chicago Latin Kings, Judge Mary Harper is researching what information jurors are required to provide to attorneys.

    "I was shocked that it had happened in the first place," Harper said in court Tuesday, referring to Rodriguez having his daughter contact one juror's family. He also gave her the address of another juror.

    The incidents happened between Rodriguez's Jan. 9 conviction of burglary and March 17 sentencing to 36 years in prison.

    He apparently wanted to know if jurors saw his prison ankle bracelet during the trial, in hopes of a mistrial.

    Deputy Prosecutor Trista Hudson contacted jurors after newspapers published the story about the contact.

    Two asked that Rodriguez be served no-contact orders to protect them.

    All juror names and personal information have been sealed from the public in this case.

    Harper plans to send her findings on jury information to the Jury Instruction Committee in Indianapolis.

    Currently, attorneys are given the names, ages, addresses and employers of prospective Porter County jurors.

    Professor David E. Vandercoy, who heads Valparaiso University's legal clinic, said attorneys often use the information to investigate potential bias.

    "You probably get more information that way than you would in open court," he said, saying that if the list isn't available, extensive juror questioning should be allowed. * * *

    Ivan Bodensteiner, who teaches law at VU, said the Supreme Court upheld the public's right to open trials in the case of Richmond Newspapers vs. Virginia in 1980.

    "If the trial has to be open, presumably that includes the jury selection process. And if the information comes out in the jury selection process, it's out there," Bodensteiner said.

    Indiana Jury Rule 10, Juror Safety and Privacy, reads:
    Personal information relating to a juror or prospective juror not disclosed in open court is confidential, other than for the use of the parties and counsel. The court shall maintain that confidentiality to an extent consistent with the constitutional and statutory rights of the parties.
    Here is the Indiana Judicial Center's "Jury Rules FAQ," including specifically Q&A re Rule 10 - well worth reading.

    For more information and background, see this Nov. 26, 2008 ILB entry re making juror questionnaires public. The "note from a reader" seems right on point.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Indiana Courts

    Courts - Broward County judge leaps over bench to protect witness

    "Judge leaps to protect woman in Broward County court: A defendant in Broward County court ended up in jail after he lunged at the woman who spoke out against him. A judge was among those who jumped to protect the woman." That is the headline to this story in the Miami Herald by Diana Moskovitz, complete with video.

    Posted by Marcia Oddi on Wednesday, March 25, 2009
    Posted to Courts in general

    Tuesday, March 24, 2009

    Law - Mississippi passes law banning red light cameras

    The ILB's most recent entry on the bill authorizing red-light cameras, which is making its way through the General Assembly, is here, from March 17th.

    Yesterday the Biloxi-Gulfport Mississippi SunHerald had a story by Emily Wagster Pettus, headlined "Jackson stops enforcement with red-light cameras." Some quotes:

    JACKSON, Miss. -- Mississippi's capital city will stop issuing tickets and collecting fines when automatic cameras snap pictures of vehicles running red lights, city attorney Sarah O'Reilly Evans says.

    The change in Jackson is being made immediately, even though a new state law sets an Oct. 1 deadline for the cameras to be taken down in the only two cities already using them - Jackson and Columbus.

    Natchez, Tupelo, Southaven and McComb are among the cities that have considered installing the red-light cameras. Officials there are scrambling to re-evaluate their plans or contracts because the law prohibits the devices in any city or county where they're not already up.

    The cameras take pictures of the license plates of vehicles that run red lights. A photograph is sent to a vehicle's owner, along with a ticket. Cities share revenue with the private companies that have contracts to operate the cameras. * * *

    Several lawmakers complained the cameras were an invasion of privacy and their constituents thought they had been unfairly ticketed.

    Gov. Haley Barbour's office announced Monday that he had signed the bill into law late Friday.

    From a story in The Commercial Dispatch, reported by John Mott Coffey:
    At least 18 states have laws allowing the red-light cameras, but about six states have banned or severely restricted their use, according to a report by the National Conference of State Legislatures.

    Makers of the red-light cameras — who had urged Barbour to veto the bill — said the new law tramples on local governments’ rights to enact their own traffic ordinances. It also could unlawfully sever contracts cities already have with the companies to install and operate the cameras.

    “Banning these life-saving safety programs is not only bad for public safety, but it will have much broader ramifications as it would infringe on home rule for cities and counties and would nullify existing business contracts in violation of (the state Constitution),” said Josh Weiss, director of communications and public affairs for American Traffic Solutions Inc., a red-light camera contractor.

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to General Law Related

    Ind. Law - Governor signs first bill of 2009 session

    The Governor's 2009 Bill Watch site is now up.

    The first bill of the 2009 signed into law by the Governor, today, is SEA 423, re substitute natural gas technology. From a release by the Governor:

    INDIANAPOLIS (March 24, 2009) – Indiana's leadership in homegrown clean energy production moved another step forward today when Governor Mitch Daniels signed into law a measure that will bring new generation substitute natural gas technology to the state, provide billions in savings to energy customers and create 1,000 construction and 500 permanent jobs in southern Indiana.

    “Edwardsport establishes our unique leadership in producing electricity from clean coal. Rockport will be first in gas from clean coal. In concert, these two facilities will make Indiana the world’s clean coal leader,” said Daniels.

    Here is the Indianapolis Star report.

    The ILB has had several entries on this bill, the most recent being this one from March 21st.

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Environment | Indiana Law

    Ind. Decisions - More on "Isn't Corydon a town, and not a city?"

    Updating this ILB entry from yesterday, where a reader questioned the accuracy of the official captioning of yesterday's 7th Circuit decision as "Trent Marion v. The City of Corydon, Indiana ...," here is some useful information from the website of the Town of Clarksville, Indiana:

    Often the designation "city" or "town" refers to the size of the municipality. In Indiana, however, the difference has to do with the structure of government. A town may not become a city if its population is less than 2,000. However, many towns in Indiana exceed this limit by a great deal and still remain towns. Clarksville, with its nearly 21,000 people, is the fourth largest town in Indiana.

    The difference is that towns do not have separate executive (mayor) and legislative (council) branches. The town council is elected by the voters and, in turn, selects a member to be council president. The president officiates at meetings and performs some of the executive functions, but still maintains the legislative functions of a council member.

    Questions are often raised whether it is more advantageous to be a city than a town. Sometimes day to day decisions that are often made by a may or, may be hampered with the town council form of government. The Town Manager Law passed in 1971 provides a solution to this problem. Revenues and grants are based on population and other factors, not the form of government. There are no strong advantages or disadvantages to city vs. town in Indiana. Both of the forms have produced efficient, well-run governments, as well as the opposite kind.

    In 1980, legislation was completed to make Indiana a "Home Rule" state. Home Rule grants municipalities all powers granted by statute, as well as any powers not specifically denied by the Constitution of the State of Indiana or other statutes. This applies to towns as well as cities, and allows local governments to make decisions and carry out programs they feel are in the best interest of their communities.

    The council serves as the legislative and executive body of the town. One of their members is voted by the council to serve as council president, who has the power to sign contracts, ordinances, etc., that have been approved by the board. The president also represents the council at government and community functions. Also, the council appoints administrative department heads, with one council member serving as a liaison to that department, rather than the council members acting as department heads.

    Here is the website of The Corydon Democrat. No mention, at least today, of the "Town" or "City" of Corydon, no meetings of the town (or city) council reported, etc. From the "About Us" page, this:
    The Corydon Democrat is located in the heart of Southern Indiana, 15 miles north of the Ohio River, in the small town of Corydon, Indiana's first state capital. The "Democrat" has been serving Harrison County since 1856, is an award-winning weekly newspaper, privately owned and published every Wednesday.
    Finally, I've received this note:
    Ms. Oddi: I’m working on a COPS grant for the City of New Albany and have to include the City’s GNIS ID number. Fortunately, DOJ explains that this is the Geographic Names Information System (I’m a City Planner and had no idea …).

    After locating New Albany’s number, I checked for Corydon and, according to the USGS/GNIS, Corydon is a Town.

    You can access the GNIS database here: http://geonames.usgs.gov/domestic/index.html

    I followed the directions for COPS grant applicants. If you are searching for a place, be sure to set the feature to “civil” from the drop-down menu, otherwise the dB gets uppity and wants to know at what elevation the feature is located.

    I enjoy your blog and find it useful in keeping up to date on COA and Supreme Court rulings affecting Plan Commissions and Boards of Zoning Appeals.

    Scott Wood
    Asst. Director
    New Albany City Plan Commission

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Ind. (7th Cir.) Decisions

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

    For publication opinions today (1):

    In April Lacy v. State of Indiana , an 11-page opinion, Judge Brown writes:

    April Lacy appeals her conviction for possession of a knife with an automatic opening blade as a class B misdemeanor. Lacy raises one issue, which we revise and restate as whether Ind. Code § 35-47-5-2, which defines the crime of possession of a knife with an automatic opening blade, is unconstitutional. We affirm. * * *

    Lacy argues that Ind. Code § 35-47-5-2 is unconstitutional on its face and as applied to Lacy. Specifically, Lacy argues that the statute violates her constitutional right to bear arms under Article 1, Section 32 of the Indiana Constitution, which provides that the ―people shall have the right to bear arms, for defense of themselves and the State. * * *

    In summary, we cannot say that switchblades are typically possessed by law- abiding citizens for self defense purposes. We also conclude that Ind. Code § 35-47-5-2 is limited because it does not prohibit the possession of all knives but only knives that open automatically or "may be propelled . . . by hand pressure applied to a button, device containing gas, spring, or other device in the handle of the knife." I.C. 35-47-5-2. Based upon these conclusions, we hold that Ind. Code § 35-47-5-2 does not place a material burden upon the core value of Lacy‘s right to defend herself. Thus, we conclude that Ind. Code § 35-47-5-2 is not unconstitutional as applied to Lacy.[3]
    _______
    [3] Other courts have reached similar results regarding sawed-off shotguns, which we find
    analogous.

    NFP civil opinions today (2):

    Edith Ann Hauser v. Robert L. Hauser (NFP) - "For the foregoing reasons, we affirm the trial court‟s modification of custody, reverse the trial court‟s modification of child support, and remand with instructions."

    In the Matter of L.S.R. v. Elkhart County Dept. of Child Svcs. (NFP) - "Clear and convincing evidence supports the trial court‟s termination of Mother's parental rights to L.S.R. The judgment of the trial court is affirmed..

    NFP criminal opinions today (7):

    Christopher E. Castillo v. State of Indiana (NFP)

    Jamaal Moore v. State of Indiana (NFP)

    Shaunika L. Jones v. State of Indiana (NFP)

    Ronald Baker, v. State of Indiana (NFP)

    Riselle D. Bonner v. State of Indiana (NFP)

    Antario B. Mercery v. State of Indiana (NFP)

    Cesar De la Rosa v. State of Indiana (NFP)

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Courts - "Herron appeals judge’s decision requiring him to register"

    Keith Rhoades reports in the Martinsville Reporter-Times, in a story dated March 21st:

    Morgan County Superior Court I Judge G. Thomas Gray has granted a motion made by a former Arizona resident now living in Morgan County, not to be placed on the state’s sex offender registry until after the Indiana Court of Appeals has decided his case.

    Earlier this month, the judge ordered Steven Herron to register on the sex offender register. Herron had moved from Arizona where he was convicted in 1984 of attempted sexual abuse and sexual conduct with a minor. He was required by the Arizona court to register as a sex offender for life.

    At some point Herron moved to a residence on Centenary Road. He was sent a letter from Arizona and also from the sheriff’s department informing him of the need to register in Indiana and to update his registry in Arizona.

    Herron hired attorney Steven Litz who filed suit in Gray’s court asking the judge to determine that his client not be required to register as a sex offender.

    In February, Litz present is case to the judge for why Herron should not have to register in Indiana. Earlier this month, the judge ruled the law did apply to Herron and he would have to register. Litz filed an appeal of the judge’s decision and asked that Herron not have to register until the appeals court issued a ruling.

    The judge agreed not to have Herron placed on the registry but did require him to give all his information to the sheriff’s department. If the appeals court rules against him, Herron’s information will be placed on the registry.

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Ind. Trial Ct. Decisions

    Law - "The end of lawyers as we know it"

    Here is an article from The Lawyers Weekly at CourtCanda.com, dated Feb. 27th, that I have been meaning to post but that has slipped between the cracks until this morning. The author, Michael Rappaport, writes at length. Here are a few quotes:

    Mercers (traders in fine cloths and silks), tallow chandlers (candle makers), cordwainers (fine leather workers) and wheelwrights (makers of wheels) all provided goods and services for centuries, before eventually being displaced by innovation and technology.

    Might lawyers one day fade from society like these once venerable craftsmen and traders? Richard Susskind begins his book, The End of Lawyers? Rethinking the Nature of Legal Services, by posing this provocative question.

    A distinguished legal academic and advisor to international law firms, Susskind has written extensively on the evolution of the legal profession and the impact of emerging technologies. The End of Lawyers? is the sequel to his 1996 legal bestseller, The Future of Law, in which he explored how information technology (IT) would transform the legal profession. Susskind delights in reminding the reader that when he predicted a decade ago in his earlier book that e-mail would become the dominant means by which clients and lawyers communicated, he was roundly scoffed at by the legal community.

    In his latest work, Susskind makes even bolder forecasts about the future of legal practice, some of which are also bound to be derided by lawyers before grudgingly being adopted. * * *

    What makes Susskind’s vision of the future of legal services so compelling is that most of the innovations and technologies required to transform it into a reality already exist. While Susskind does extrapolate from present day hi-tech to envisage what tomorrow might bring, he really doesn’t go too far out on a limb. Given the rapid pace of technological progress, is it really farfetched to envisage a day when the average desktop computer will rival the human brain (circa 2020 according to technology guru Ray Kurzweil)?

    Disruptive legal technologies, however, aren’t necessarily groundbreaking innovations. Rather, Susskind’s definition encompasses technologies, systems, techniques or applications that do not simply support or sustain the way a business or sector operates, but instead fundamentally challenge or overhaul such a business or sector.

    For the legal marketplace, Susskind has identified several potential game-changers, such as: automated document assembly, which will enable laymen to draft legal documents without reliance on lawyers; the electronic marketplace, which allows clients to investigate the reputation of lawyers and law firms, post requests for proposals for legal services and even hold auctions to obtain the lowest cost and most qualified providers; and online legal communities, such as LegalOnRamp, which allow users to share legal information and facilitate collaboration between clients and counsel.

    How much will these disruptive technologies hurt lawyers’ pocketbook? Consider how much freely accessible legal information and guidance is currently available online, which law firms used to be able to bill dearly for in the past. Yesterday’s chargeable information services, formerly packaged as advice, are today’s online marketing materials.

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to General Law Related

    Ind. Law - South Bend Tribune story advises on Fair Debt Collection Practices Act

    Kim Kilbride of the South Bend Tribune reports today in a story that begins:

    Tired of being pestered by debt collectors? Tell them to leave you alone. Legally, they must.

    “Absolutely. You can say, ‘I don’t want to be contacted,’” said Jason Plocek, a financial counselor with GreenPath Debt Solutions, a nonprofit debt management company in Mishawaka.

    The Fair Debt Collection Practices Act also says that collectors can only call between 8 a.m. and 9 p.m. They can’t make threats they don’t intend to follow through on. And, they cannot harass nor abuse consumers.

    “You hear horror stories,” he said of collectors’ treatment of debtors. “You hear of people being called 15 times a day, threats of imprisonment.”

    That said, Plocek said the majority of collectors abide by the law. However, the state of the economy has caused some, he said, to ramp up the pressure.

    Joe Zielinski, a staff attorney in the Foreclosure Defense Unit of Indiana Legal Services-South Bend, said he too has noticed some new trends in collections, namely an increase in creditors trying to collect on old debts.

    In Indiana, Zielinski said, if a consumer hasn’t paid on a bill for six years nor had any dealings with the company to which the money is owed during that period, it’s his understanding that the debt is invalid.

    Some companies are increasingly trying to collect on old debts, Zielinski believes, because in this down economy, they’re looking for any way they can to bring in cash.

    To determine the age of a debt, ask for verification, Zielinski advised, including the balance and information about the original creditor. “If you get sued, you could raise that (statute of limitations) issue,” he said.

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Indiana Law

    Ind. Courts - "Porter County Courthouse cleared of mold"

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

    VALPARAISO -- The fifth floor of the Porter County Courthouse is now officially mold-free.

    Starting Thursday night, technicians began cleaning the jury room and courtroom of Judge William Alexa's Superior Court 2.

    By Sunday afternoon, they had also hepa-vacuumed the area, filtering and scrubbing the air in those areas, as well as the judge's chambers and the rest of the fifth floor.

    The process removes spores and mold traces from the area, where testing had identified traces of mold in the air. * * *

    The cause was a leaking roof, Porter County Attorney Gwenn Rinkenberger said. Water seeped into the plaster and ceiling tiles and got caught behind vinyl wallpaper, she said.

    The firms and county haven't calculated the final cost of the work, although ancillary costs include shutting the court down Friday and Monday and replacing the wallpaper.

    "It's adding up, but it doesn't matter what it costs. We're going to do it," Rinkenberger said.

    She estimated the first testing, clean-up and final testing would run about $5,000, but Barczak said the final testing cost much less, and the project cost should come in well under $15,000.

    The county will also repair the courthouse roof, in which two leaks have been discovered so far. Midwest Restoration sealed the building during renovations in 1994, she said.

    A mold problem in 2004 occurred when the limestone brick of the courthouse wicked the moisture from the damp ground into the building, Rinkenberger said.

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Indiana Courts

    Ind. Gov't. - More on: "Historic districts fading away?"

    Sunday's ILB entry quoted a story in the NWI Times. From the story: "It's a debate raging across the region as development and homeowner concerns force battles over the cost or benefit of saving properties perceived by some to be historic." The story pointed to residents' complaints that "the district prevented them from replacing doors or windows within their budgets."

    Today the NY Times' Monica Davey has a story, dateline Chicago, headed "Challenge to Landmark Law Worries Preservationists." It begins:

    Carol Mrowka considers her East Village neighborhood here attractive, comfortable — and ordinary. So when the city deemed the area an official landmark, Ms. Mrowka found it absurd and went to court.

    “Sure, it’s a nice neighborhood,” said Ms. Mrowka, a real estate agent who moved 12 years ago to the neighborhood, north and west of the Loop, with its cottages and small, flat buildings that were home to immigrants in the late 1800s. “The basic style of the buildings is pretty, but this is not a landmark.”

    Now her case has been appealed to the Illinois Supreme Court, raising alarm among preservationists about the future of scores of such landmark districts and buildings in a city that adores its architectural legacy.

    “The fact is, Chicago could not exist without its landmark ordinance,” said Jonathan Fine, the executive director of Preservation Chicago, a nonprofit group. “It’s the line that holds us back from the Neanderthals.”

    A state appellate court sided with Ms. Mrowka and Al Hanna, a resident of Lincoln Park, another neighborhood where a section has landmark status, finding that Chicago’s four-decades-old ordinance for designating landmarks used “vague, ambiguous and overly broad” terms to sort out what buildings and neighborhoods should be protected from change or demolition.

    The City of Chicago appealed that decision this month, and both sides are waiting to hear if the Illinois Supreme Court will take the case.

    There is much more to this interesting story, such as claims that "the landmark designation was being used to 'racially cleanse a high income area.'”

    Posted by Marcia Oddi on Tuesday, March 24, 2009
    Posted to Indiana Government

    Monday, March 23, 2009

    Ind. Decisions - "Isn't Corydon a town, and not a city?"

    So writes a reader who I expect wouldn't have asked unless he knew, about the title to today's 7th Circuit opinion, summarized here.

    In this Wikipedia entry, Corydon is identified as a town and as a city in the same introductory paragraph:

    Corydon is a town in Harrison Township, Harrison County, Indiana, United States and a former capital of the State of Indiana. The population was 2,715 at the 2000 census. The city is the county seat of Harrison County.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Transfer list for week ending March 20, 2009

    I'm told there is no transfer list for the week ending March 20, 2009.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Indiana Transfer Lists

    Environment - "Lawmakers consider next step for CAFO bill"

    Updating this ILB entry from Feb. 19th, Pam Tharp reports today in the Richmond Palladium-Item in a story that begins:

    LIBERTY, Ind. -- Union County pork producer Don Reiboldt is worried about his family's livelihood if a bill imposing a two-mile setback from state parks and reservoirs for mega livestock farms becomes law.

    Union County resident Krista Carr, who lobbied representatives to pass House Bill 1075, is worried about the safety of state recreational waters if it doesn't.

    Opponents and supporters of the controversial bill came face-to-face Saturday at a legislative breakfast hosted by Farm Bureau Inc. of Union, Fayette and Franklin counties. More than 80 people attended the four-hour gathering to talk with area state representatives Phil Pflum, Tom Knollman and Bob Bischoff and state Sen. Jean Leising, R-Oldenburg.

    Indiana Farm Bureau representatives blamed Pflum and Bischoff, who are Democrats, and Knollman, a Republican, for the bill's passage in the House by a 51-47 vote. All three also voted for the bill in the House agriculture committee.

    The bill is now assigned to the Senate Energy and Environmental Affairs Committee and so far hasn't been heard. Leising and Pflum said the bill probably won't get a hearing before Sen. Beverly Gard's committee.

    "I don't believe (Gard) is giving hearings to any bills with setbacks," Leising said. "I think in the Senate they recognize the need to haul manure."

    Because the bill passed the House, it could be added as an amendment to another bill, Leising said. Pflum, who chairs the House agriculture committee, said he's still considering the next step. Statewide the setbacks impact less than 1 percent of land. In Union County, it's 15 to 20 percent of the county's land area.

    "We can amend it into another bill, but is it worth the risk that bill might not pass because of it?" Pflum said after the meeting. "I'm going to be doing more talking with other legislators before making a decision. It isn't just Union County this bill affects. It's 46 counties in the state that have parks or reservoirs."

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Environment

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

    In Trent Marion v. City of Corydon (SD Ind., Chief Judge Hamilton), a 14-page opinion, Judge Flaum writes:

    Plaintiff Trent Marion brought this action under 42 U.S.C. § 1983 against the City of Louisville, the City of Corydon, the City of New Albany, the County of Harrison, and several officers from those jurisdictions and from the Indiana State Police. He alleged that the law enforcement officers and government entities violated his Fourth Amendment rights by using excessive force against him in connection with a police pursuit and subsequent shooting. All defendants, except the City of Louisville and its unknown officers, filed motions for summary judgment. Defendants supported their motions with affidavits and with video and audio recordings. Marion offered no counter-affidavit and pointed to no evidence that would call into question defendants’ submissions. Finding no triable issue of fact, the district court granted summary judgment for all named defendants. Marion appealed, and we now affirm the district court’s grant of summary judgment. * * *

    We conclude that, under the totality of the circumstances, it was reasonable for the officers to think that Marion seriously endangered officers and innocent bystanders, and it was reasonable for the officers to dis- charge their firearms in Marion’s direction to stop him. Thus, there was no Fourth Amendment violation. Because there was no deprivation of a constitutional right in this case, the police officers are immune from liability. Pearson, 129 S. Ct. at 816; Akande v. Grounds, ___ F.3d ___, 2009 WL 291186 (7th Cir. Feb. 9, 2009) (“If it is clear that there has been no constitutional injury, . . . the officials are entitled to immunity”) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The district court correctly granted summary judgment in favor of all officers.

    Furthermore, municipalities or counties cannot be liable under § 1983 absent an underlying constitutional violation by one or more of their officers. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Because we find no constitutional violation by the police officers, the district court correctly dismissed Marion’s claims against the named municipalities and against the County of Harrison.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Ind. (7th Cir.) Decisions

    Courts - "Should We Have Professional Juries?"

    More on juries today, from this entry by Ashby Jones at the WSJ Law Blog.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Courts in general

    Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

    For publication opinions today (1):

    In Re: The Termination of the Parent-Child Rel. of I.A., Lavonne Aikens v. Indiana Dept. of Child Svcs. is a 17-page opinion by Judge Vaidik. Here is Judge Vaidik's case summary:

    Lavonne Aikens ("Mother") appeals the termination of her parental rights to her son, I.A., who was almost two years old at the time of the termination hearing, had never been in her care, and has many medical needs. In the same proceeding that the trial court terminated Mother’s parental rights to I.A., however, the court did not terminate Mother’s parental rights to four of her older children, M.H., Z.A., D.A., and J.A. This case presents a most unusual circumstance where, in the same proceeding, the court terminates a parent’s rights to one child but not to others. Although at the time of the termination hearing Mother had successfully completed many services and was cocaine-free for eight months to the point of getting four of her children back, the record shows that Mother has nevertheless demonstrated a continued indifference to I.A.—ranging from using cocaine during the whole nine months of her pregnancy with him, to not knowing the extent of his medical conditions at birth, to not educating herself on his current medical needs. We therefore affirm the termination of Mother’s parental rights to I.A.
    NFP civil opinions today (1):

    In Carolynda Applebury-Todosichuk v. Damian Stevenson (NFP), a 5-page opinion, Judge Vaidik writes:

    For the underlying proceedings in the trial court, appellant Carolynda Applebury- Todosichuk was represented by local Indiana counsel and an out-of-state attorney granted pro hac vice status by the trial court. Although out-of-state counsel failed to seek permission to proceed pro hac vice on appeal, both attorneys signed Applebury- Todosichuk’s Notice of Appeal. Out-of-state counsel then filed an Appellant’s Brief bearing only her signature; local counsel did not sign the brief. We cannot consider the merits of a brief improperly filed by an attorney not licensed to practice law in Indiana and not granted temporary permission to proceed in this Court. Because Applebury- Todosichuk has failed to timely file an appellate brief pursuant to Indiana Appellate Rule 45(B), we dismiss this appeal. * * *

    Here, Applebury-Todosichuk failed to file an appellant’s brief, a violation of Indiana Appellate Rule 45(B). See Prof’l Laminate & Millwork, Inc., 651 N.E.2d at 1157 (party failed to act within the time required by law because filings by out-of-state attorney who had not received temporary admission were a nullity). This is a flagrant violation of the Rules of Appellate Procedure, and we therefore dismiss the appeal. [2]
    ___________
    [2] Lest our dismissal of this appeal be thought harsh, we observe that this is not the first time a member of Attorney Burns’s law firm, Richard Ducote & Associates, PLC, has attempted to proceed in this Court on behalf of Applebury-Todosichuk without first petitioning for temporary admission. In May 2005, while representing Applebury-Todosichuk in another proceeding, attorney Richard Ducote filed Applebury-Todosichuk’s Appellant’s Case Summary with local Indiana counsel. Our Online Docket includes the notation: “Atty. Ducote has not yet been admitted pro hac vice and will need to petition to this Court before his signature may appear on any filing.” Online Docket, Applebury-Todosichuk v. Stevenson, 49A04-0505-CV-00250 (formatting changed). Attorney Ducote subsequently petitioned for and received temporary admission before this Court.

    NFP criminal opinions today (2):

    Joshua Powell v. State of Indiana (NFP)

    Michael Lee Smiley v. State of Indiana (NFP)

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Ind. App.Ct. Decisions

    Courts - More on: "Mistrial by iPhone: Juries’ Web Research Upends Trials"

    Updating this ILB entry from March 17th, the NY Times today has published a number of eye-opening letters under the heading "When Jurors Seek Evidence Online." Here is an example:

    Jurors are asked to decide cases in a thoughtful and yet naïve way, reflecting a dichotomy improperly created by the current evidentiary rules. While jurors are considered competent to award millions of dollars and to properly weigh the evidence in the process, they are considered incompetent to decide what evidence should be admissible.

    Instead, judges serve as the gatekeepers of information, protecting jurors from information that might corrupt their ability to decide the case. But with the advent of the Internet, jurors are given broader access to information denied to them based on arcane legal rules.

    Jurors’ use of the Internet reflects both the day-to-day importance of the Internet as well as a revolt against a system that insists on keeping intelligent and discerning jurors from being given the whole truth before they render a verdict. We should have greater faith in jurors’ abilities to separate and weigh evidence properly.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Courts in general

    Ind. Law - "They do two things here. They pass bills, and they kill bills."

    John Byrne of the Gary Post-Tribune has a "don't miss read" today, headlined "As deadline looms, quiet tension fills Statehouse."

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Indiana Law

    Ind. Law - "It's the Law: Habitual offenders get extra punishment"

    Ken Kosky's NWI Times' "It's the Law" column for today, looks at habitual offenders:

    A Portage man's criminal past -- which includes 84 arrests, 70 misdemeanor convictions and two felony convictions -- caught up with him last week.

    The man received a 15-year sentence on his third felony conviction -- a burglary charge. He then received an extra 20 years on a habitual offender enhancement. because his two prior, unrelated felony convictions qualified him as a habitual offender.

    Indiana law allows habitual offenders -- those who commit a third felony after having two separate, unrelated felony convictions -- to receive extra punishment.

    Porter County Prosecutor Brian Gensel said about 5 to 10 percent of defendants qualify for the added punishment that comes from being a habitual offender.

    "If we are aware of convictions locally in jurisdictions where the records are kept similar to the way the records are kept in Porter County, we will file the appropriate habitual offender enhancement," Gensel said.

    The purpose to the habitual offender statute is to remove from society those who have proven to be dangerous due to their repeat behavior.

    Gensel said habitual offenders can receive an extra one to three times the standard sentence for their crime, with a cap of 30 years. For example, someone convicted of the lowest level of felony faces a standard sentence of 1 1/2 years, to which 1 1/2 to 4 1/2 more can be added under the habitual enhancement.

    Indiana law also has a habitual substance offender, so some drug offenders can face an extra three to eight years in prison beyond what they would already face.

    Indiana law also states a person can receive life in prison without parole if they have two prior, unrelated convictions for crimes like murder, rape and armed robbery, or if they have one prior Class A felony sex offense against a child.

    Indiana law also calls for additional penalties -- ranging from loss of license to prison time -- for habitual traffic offenders.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Indiana Law

    Courts - Texas Chief Justice argues for new system of selecting judges

    Thanks to How Appealing for spotting this editorial in the Houston Chronicle, written by Wallace B. Jefferson, chief justice of the Supreme Court of Texas, where curretly appellate judges are elected, based on party affiliation.

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Courts in general

    Ind. Courts - "Court addresses increase in people representing themselves"

    Marisa Kwiatkowski reports today in the NWI Times:

    CROWN POINT | Lake Circuit Court Judge Lorenzo Arredondo said the increasing number of people representing themselves in court is not just economics.

    The availability of legal forms on the Internet, a downtrodden economy and increasing education level of residents have all fueled an increase in self-representation in court cases.

    "You have people who say, 'I have a master's degree. I'm not going to pay a lawyer to fill out forms,'" Arredondo said.

    The Indiana Supreme Court's Division of State Court Administration recognizes the increase in pro se litigants and created an informational video for people who'd like to go it alone in family law cases. [See ILB entry from Nov. 25, 2008]

    The video is divided into short segments detailing responsibilities, how to prepare for court and stages of a case. * * *

    Lake Superior Court Judge Calvin Hawkins said most protection orders are handled without an attorney. Defendants in collection cases also often are pro se, he added.

    Arredondo said he sees people represent themselves for name changes, protection orders and divorce cases that involve no assets and no children.

    He cautioned litigants against defending themselves in more complex cases.

    The ILB has had a number of other entries on pro se representation. Here is an entry from Nov. 28, 2008, headed "Pro Se Litigants: On the Rise and Mucking Things Up."

    This ILB entry from July 22, 2008 is headed "Ohio Judges See More Do-It-Yourself Divorces and System Slowdown ." It was updated on Aug. 12th, 2008.

    See also this Dec. 24, 2007 entry, quoting an Indianapolis Star story headed "Dress code suit costs couple $40,931.50: Anderson plaintiffs' predicament illustrates the risks of being your own lawyer."

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Indiana Courts

    Law - Educating & Informing Chicagoans About Fighting Parking Tickets & Parking Issues

    The Chicago Tribune's featured blog today is theexpiredmeter.com.

    A recent post is "‘Meter Beater’ Arrested For Weekend Parking Meter Assault."

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to General Law Related

    Ind. Decisions - Upcoming oral arguments this week and next

    This week's oral arguments before the Supreme Court (week of 3/23/09):

    • None currently scheduled

    Next week's oral arguments before the Supreme Court (week of 3/30/09):

    • None currently scheduled

    This week's oral arguments before the Court of Appeals (week of 3/23/09):

    This Tuesday, March 24th:

    • 10:00 AM - David L. Reynolds, II, v. State of Indiana - Attorney Gregory L. Caldwell is ordered to appear at a hearing to SHOW CAUSE why he should not be held in contempt of this court for his disregard of the orders of this court. The Scheduled Panel Members are: Judges Vaidik, Crone and Sr. Judge Sharpnack. [Where: Court of Appeals Courtroom]
    This Wednesday, March 25th:
    • 1:00 PM - Joseph Jaskolski, et al vs. Rick and Anna Daniels - In this interlocutory appeal, Joseph Jaskolski and the National Insurance Crime Bureau (NICB) appeal from the trial court's order denying their petition for certification of Jaskolski's status as a federal employee. Jaskolski and NICB sought certification of that status from the United States Attorney General pursuant to the Westfall Act, 28 U.S.C. sec. 2679. The Attorney General denied their request, and they appealed to the United States District Court for the Northern District of Indiana. That court affirmed the Attorney General's decision and remanded the case to the Lake Superior Court for further proceedings. Jaskolski and NICB renewed their request for certification in state court, the trial court denied it, and this appeal ensued. In response to the position of Jaskolski and the NICB, the Danielses argue, among other things, that this appeal is not properly before this Court. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]

    • 2:30 PM - Gregory S. Brown [sic] - In this interlocutory appeal, Gregory S. Brown appeals the order denying his motion to suppress evidence obtained upon execution of a search warrant at his home. Brown argues that the warrant was based on information from a "concerned citizen" whose credibility was not established at the probable cause hearing and, therefore, the court lacked probable cause for the warrant. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]

    This Thursday, March 26th:

    • 10:00 AM - Brian Montgomery vs. State of Indiana - Brian Montgomery appeals his conviction of dealing in cocaine, a Class A felony, contending that the trial court erred in admitting evidence obtained by police during a warrantless search of his hotel room. Montgomery claims there was neither valid consent to the search nor exigent circumstances justifying the entry. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Indiana State University, Hulman Memorial Student Union Building, Terre Haute, Indiana]

    • 1:30 PM - Cameron Swartzentruber vs. State of Indiana - Appellant was driving a pickup on a county road in rural Daviess County when his truck struck the reaf of a horse drawn buggy, causing the death of one person and injuries to four other. He is appealing his sentence. The Scheduled Panel Members are: Chief Judge Baker, Judges Bradford and Brown. [Where: Court of Appeals Courtroom - Webcast]
    Next week's oral arguments before the Court of Appeals (week of 3/30/09):

    Next Tuesday, March 31st:

    • 2:00 PM - Jim and Carol Daily vs. City of Columbus, Board of Zoning Appeals - Jim and Carol Daily ("the Dailys") appeal from the trial court's order affirming the City of Columbus Board of Zoning Appeals' ("the BZA") denial of the Dailys' temporary use application for a farmers market on their 2.1-acre lot in Columbus, Indiana in their action for a petition for writ of certiorari and complaint for declaratory judgment. The Dailys appeal, arguing that the trial court erred: (1) by concluding that the creation of the Dailys' lot in 1973 violates the current City of Columbus Zoning Ordinance; and (2) in concluding that the Dailys' lot lacks the attribute of "access and frontage" under the current City of Columbus Zoning Ordinance. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]

    • 5:00 PM - Rosalynn West vs. Betty Wadlington, et al - Plaintiff Rosalynn West sued her fellow churchgoers, Betty Wadlington and Jeanette Larkins, and Larkins' employer, the City of Indianapolis, claiming defamation and invasion of privacy. West's complaint stems from a letter about West that Wadlington wrote and addressed to their church board of trustees and board of deacons. Wadlington included this letter in an email she sent to Larkins at her work email address. Larkins, using her work email, then forwarded the email on to over eighty other email addresses. Some of the allegedly defamatory language used in the letter had religious connotations. The Defendants filed a motion to dismiss West's complaint for lack of subject matter jurisdiction, arguing that the Free Exercise clause of the First Amendment prevented the court from determining whether the statements in the email were defamatory or false. The trial court granted the motion to dismiss, and West appeals. The main issue on appeal is whether the Free Exercise clause of the First Amendment prevented the trial court from hearing West's claims. The Scheduled Panel Members are: Judges Bailey, Mathias and Barnes [Where: Wynne Courtroom, Indiana University School of Law - Indianapolis]

    Next Wednesday, April 1st:

    • 2:00 PM - Jay B. Stokes vs. State of Indiana - [Further information currently not available from COA site]

    Posted by Marcia Oddi on Monday, March 23, 2009
    Posted to Upcoming Oral Arguments

    Sunday, March 22, 2009

    Law - Church, genealogist in tussle over cemetary information

    Updating the ILB entries from March 18th and March 19th on death certificates, here is a somewhat related story from the March 16th Lexington Herald-Leader. Beverly Fortune reports:

    Among the hundreds of graves in the Old Union Christian Church Cemetery on Russell Cave Road, genealogist David Shannon found those of several relatives, including his great-grandparents Julia and Lloyd Harp.

    With beginner's zeal, Shannon began to compile the names, birth and death dates on the tombstones, which date back to the early 1800s. "Once I got into it, I figured other people trying to find ancestors would find information in the cemetery helpful," he said.

    So he created an independent research Web site, www.oldunioncemetery.com, where he's posted the information on the 475 documented burials collected and a photograph of each visible stone.

    But the church board at Old Union took offense.

    In February, the church's governing board sent Shannon a letter telling him "to cease publishing pictures of stones ... not part of your family because it is sharing family information without their consent."

    Old Union's minister, the Rev. Scott Winkler, said the church's position is that Shannon's actions are an invasion of privacy. "If you're going to publish other people's private information you need to get their permission," he said. "Any cemetery has to protect rights of people buried there." * * *

    Birth and death dates are public information, recorded in county courthouses and with the Kentucky Department for Public Health's division of vital statistics.

    What is inscribed on a tombstone also is public, said Mary Davis, Stites & Harbison professor of law at the University of Kentucky College of Law. "If a fact is in the public domain, it's not private and it can be published," she said. * * *

    Some genealogists expressed surprise at Old Union's prohibition on sharing family genealogy information.

    Former Fayette County Attorney Margaret Kannensohn said that historically, the reason for tombstone inscriptions was "to commemorate, for the ages, the existence of that person. That's why they went into a lot of description."

    If information about the person was intended to be kept private, "it could have been confined to the family Bible or oral tradition, but kept within the family," said Kannensohn, also a genealogist.

    A movement called Free Genealogy promotes disseminating as much information as possible, she said, "so everyone has a possibility of researching their roots." Within that movement, she said, "Shannon is doing an incredible service."

    Ann Johnson, head of the Kentucky Historical Society's cemetery preservation program, said she has never encountered a cemetery refusing to allow photography or requiring permission of family members.

    "You can go to ancestry.com and pull up the same information on anybody you want to. You don't have to be a relative," Johnson said. If the death certificate is available, "you can even print them off."

    Lisa Sanden, president of the Fayette County Cemetery Trust, said she was "absolutely shocked" when she learned of the church's unwillingness to share genealogy information from the cemetery.

    Kentucky statutes do not address privacy of information on tombstones, Sanden said. "I went back and re-read them. The statutes speak to tombstones not being desecrated and not publishing photographs for profit."

    Shannon isn't making a profit, she said; "he is doing this out of the goodness of his heart, sharing his information."

    Posted by Marcia Oddi on Sunday, March 22, 2009
    Posted to General Law Related

    Ind. Courts - Still more on: David F. Hamilton, selection of President Obama for 7th Circuit [Updated]

    The Blog of Legal Times posted this more detailed entry on Judge Hamilton on March 20th. It includes a scanned copy of the 17-page questionnaire (actually 34-page) Hamilton filled out in 1994, when applying for his present position, including questions like that on p. 6 - "Describe the then most significant litigated matters which you personally handled," and that on p. 11 - "Have you ever had a position or played a role in a political campaign."

    The 62-page 2009 questionnaire is also linked. Particularly interesting is the section beginning on p. 58, in answer to Q 26 re the selection process, describing how Judge Hamilton came to be selected.

    See earlier ILB entries mentioning Judge Hamilton.

    [Updated at 3:00 PM] A reader has sent this note:

    I appreciate the post about Judge Hamilton's Seventh Circuit questionnaire. I'd never seen one, and it is quite interesting, especially the ten most significant cases. Is Judge Zore retired, though, a noted in question ten (page 55)?
    No, he has not retired. Marion County Judge Gerald Zore is listed right here on the official Marion County website - Marion County Superior Court - Civil 7. According to the Indianapolis Bar Association 2008 survey:
    Judicial Experience: Judge, Marion Superior Court, Civil Division 7, December 23, 1974—Present
    Judge Zore is the Presiding Judge of the Marion Superior Court and has served as Superior Court Judge since 1974.

    Significant Legal Accomplishments: He is currently the longest serving trial judge in the State of Indiana.

    Note: For readers' convenience, and with thanks to The Blog of Legal Times, I've added these direct links to the BLT's postings of the questionnaires from 1994 and 2009.

    Posted by Marcia Oddi on Sunday, March 22, 2009
    Posted to Indiana Courts

    Law - "Supermajority rule: good or bad?"

    An interesting "Backgrounder" today in the LA Times, written by Nicholas Goldberg. It begins:

    It is one of the many oddities of California law that in order to pass a state budget or raise taxes, the Legislature must win two-thirds approval in both houses. This unusual "supermajority" rule is a big part of the reason the Legislature has missed the legal deadline for a new state budget in 16 of the last 20 years, and why gridlock so often seems to rule the day in Sacramento.

    It is another oddity of California law that sweeping constitutional change can be accomplished with nothing more than a simple majority vote at the ballot. Proposition 8, for example, the constitutional amendment that banned gay marriage in the state, passed with just 52% of the vote.

    Does it make sense that passing a budget or a tax hike is so difficult while fundamental changes to the state's foundational document can be made so easily?

    Posted by Marcia Oddi on Sunday, March 22, 2009
    Posted to General Law Related

    Ind. Gov't. - "Historic districts fading away?"

    Bill Donlan has this long story today in the NWI Times. Some quotes:

    Wrecking crews pulled down a century-old Crown Point home recently while preservation advocates raised debate about whether Northwest Indiana's historic districts should extend protection to larger areas.

    It's a debate raging across the region as development and homeowner concerns force battles over the cost or benefit of saving properties perceived by some to be historic.

    The recent battle is taking shape in Crown Point, a city that has created three historic districts and is contemplating a fourth.

    "We tried to create another district on Court Street, but people in that area just said no," said Jim Kendall, a member of the city's historic preservation committee.

    "Now that it's torn down, people might start rethinking that question," said Kendall, referring to the Court Street home that was demolished March 12.

    The demolition of the vintage home just south of the city's fashionable Ruffle Shirt Hill neighborhood has some preservationists calling for the city to provide greater protection of its historical heritage.

    The demolition came only days after the Valparaiso City Council dismantled the Banta Neighborhood Historic District, and a dozen years after Hammond abolished its Harrison Park Historic District.

    At least 60 Banta residents complained the district prevented them from replacing doors or windows within their budgets.

    Posted by Marcia Oddi on Sunday, March 22, 2009
    Posted to Indiana Government

    Ind. Courts - Judicial Center's Legislative Update #10

    The second half of the legislative session is well underway this week and bills are being heard in second house committee. A month remains in the regular session.

    Posted by Marcia Oddi on Sunday, March 22, 2009
    Posted to Indiana Courts

    Saturday, March 21, 2009

    Environment - "Natural Gas, Suddenly Abundant, Is Cheaper "

    Here are earlier ILB entries on SB 423, the bill that puts the State into the coal-to-gas financing business. Specifically, the digest of the bill, now on its way to the Governor, reads:

    Permits the Indiana finance authority (authority) to enter into contracts for the purchase and sale of substitute natural gas (SNG) from coal gasification facilities to regulated energy utilities for delivery to retail end use customers. Requires the authority to establish the substitute natural gas account to provide funding for SNG related business.
    From a March 13th story by Mark Wilson in the Evansville Courier & Press:
    Developer William Rosenberg said the plant will be able to provide the gas at a cost less than the market price of natural gas over the long run.

    However, special legislation is required to do so, because negotiations with several utilities to lock in a 30-year contract to purchase the gas fell through last year. Such long-term purchase agreements are necessary to qualify for federal loan guarantees that would make funding of the plant possible, Rosenberg said.

    Although natural gas prices currently are low, Rosenberg said Thursday that prices are expected to rise over the next 30 years while the supply from within the United States is expected to decrease. The price of coal is expected to stay relatively stable, with much less of an increase over time.

    A recent forecast by the federal Energy Information Administration predicts the price of natural gas to reach $9.25 per million Btu by 2030. The report also is expecting demand for natural gas to increase sharply during that time, supplying most of the additional electric generating capacity added by 2030.

    "No one believes they (natural gas prices) are going to stay where they are today," Rosenberg said.

    He suggested if the plant was operating now, it would be able to produce 16 percent to 20 percent of Indiana's natural gas needs.

    But with utilities unwilling to commit to a long-term purchasing agreement, legislators drafted a bill that will allow the Indiana Finance Authority to act as a go-between for the plant and utilities.

    With that in mind, I read this story in today's NY Times, written by Clifford Krauss, and headed "Natural Gas, Suddenly Abundant, Is Cheaper ." Some quotes:
    HOUSTON — The decline in crude oil prices gets all the headlines, but the first globalized natural gas glut in history is driving an even more drastic collapse in the cost of gas that cooks food, heats homes and runs factories in the United States and many other countries.

    Six giant plants capable of cooling and liquefying gas for export are due to come on line this year just as the economies of the Asian and European countries that import the most gas to run their industries are slowing.

    Energy experts and company executives say that means loads of gas from Qatar, Egypt, Nigeria and Algeria that otherwise would be going to Japan, Korea, Taiwan and Spain are beginning to arrive in supertankers in the United States, even though there is a gas glut here, too.

    With industrial and utility use of natural gas declining, gas prices in the United States have already declined by two-thirds since the summer. Prices are not likely to go down much more, experts say, but an increase in imports is likely to keep them low until the global economy recovers and drives demand back up. * * *

    Natural gas is becoming a world commodity like oil. It is still loosely connected to world oil benchmark prices and its price, usually set by longer-term contracts everywhere except for the United States and Britain, can diverge widely from one continent to another. Until the last few years, liquefied natural gas was a high-priced necessity for countries that did not produce their own gas supplies or have access to piped reserves; but it now has become a cheap economic driver for countries like Japan with few energy resources.

    But as more terminals have been built, the amount of gas that is shipped from one continent to another in giant tankers has climbed. And now the emergence of the global market in gas is about to take a giant leap.

    The global capacity for liquefied natural gas exports of 200 million tons a year will increase by 25 percent with the completion of six new plants in Qatar, Russia, Indonesia and Yemen, totaling $48 billion in investments, and the upgrading of a seventh plant in Malaysia. National energy companies in those countries, assisted by ExxonMobil, Total, BP and Shell, rushed construction of those projects in recent years to satisfy the mushrooming appetite for energy around the world. More large plants are due on line in 2010 and 2011. * * *

    The international gas glut and expected surge in gas imports represent a reversal from trends of less than a year ago when the world suffered a shortage of liquefied gas and prices spiked in the United States and elsewhere.

    Natural gas in the United States costs a little over $4 per thousand cubic feet, down from a peak of more than $13 last year. Oil now costs a bit more than $51 a barrel, down from a peak of more than $145 in July. On average, world spot prices for liquefied natural gas cargoes have come down by more than two-thirds since last summer.

    Posted by Marcia Oddi on Saturday, March 21, 2009
    Posted to Environment

    Ind. Decisions - "Appeal over Ingalls annexation denied"

    The NFP Court of Appeals decision March 19th in the case of Madison Co. Board of Commissioners and Madison Co. Auditor v. Town of Ingalls (see ILB summary here, 2nd NFP case) is the subject of a story by Justin Schneider in the Anderson Herald Bulletin. The story begins:

    A controversial annexation by the town of Ingalls will stand under a ruling by the Indiana Court of Appeals.

    The ruling by Judge Patricia A. Riley was filed on Thursday. It asserts that Madison County had no standing to challenge the annexation, which began in December 2005.

    “We conclude, Madison County does not have standing to seek our intervention in the Town of Ingalls’ acts of annexation, nor do we have the authority to provide the relief which Madison County requests,” Riley wrote.

    The decision upholds a ruling made by Madison Superior Court 3 Judge Thomas Newman in November 2007 that the county had no authority in the matter because it did not own any of the property involved. It was affirmed by Judges Carr L. Darden and Nancy H. Vaidik.

    “It seems to me that Madison County has wasted a tremendous amount of taxpayer dollars I really don’t believe they should have,” Ingalls Town Councilman Tim Green said of the repeated legal challenges. “I think they possibly could have a right to an appeal process. But they’re hurting a developer who is trying to bring in an industrial park and jobs.”

    Posted by Marcia Oddi on Saturday, March 21, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - "Teacher’s sex crime sentence reduced"

    Jeff Parrott of the South Bend Tribune reports on the Court of Appeals NFP decision March 19th in the case of Mel A. Trowbridge v. State of Indiana. Some quotes:

    The appeals court found the crimes to be "slightly more egregious than a typical sexual misconduct with a minor offense," finding that Biddlecome was correct in citing various aggravating factors. They included the fact that Trowbridge held a position of trust in the community and with the 15-year-old girl’s parents; after he was arrested he asked the 14-year-old girl to "play dumb and act confused" so authorities would think she was lying; and that because of communication he had with the 15-year-old after his arrest, she believes she and Trowbridge have a future together.

    But the appeals court found that his sentence exceeded those given in similar cases taken to appellate courts.

    "Trowbridge has no criminal history, strong support from his family and friends, and is considered an excellent candidate for sex offender treatment (as a psychologist testified in court)," the judges wrote.

    The appeals court panel consisted of Judges Terry A. Crone, a South Bend native, Margret G. Robb and Elaine B. Brown. Brown dissented in part, saying she thought the prison time should have been reduced even more, to 20 years, plus five years probation and mandatory sex-offender treatment after release.

    Posted by Marcia Oddi on Saturday, March 21, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - "Harrison casino isn't liable for Kephart's losses"

    Yesterday's Court of Appeals decision in the case of Caesars Riverboat Casino v. Genevieve Kephart, (see ILB summary here, 2nd case) is the subject of this story today by Grace Schneider in the Louisville Courier Journal. Some quotes:

    he Indiana Court of Appeals dealt a setback yesterday to a Tennessee woman who blamed the former Caesars Indiana casino for luring her to spend $125,000 while knowing she was addicted to gambling.

    In a 2-1 ruling, the court said the Harrison County casino isn't legally obligated to protect Jenny Kephart, who lives in suburban Nashville, from the casino's marketing and hosting. Instead, the ruling said, Kep hart was to blame for not cutting her ties to casinos given "her proclivity towards compulsive gambling." * * *

    Judge Paul D. Mathias wrote the majority opinion, to which Judge Carr Darden concurred.

    The third panel member, Judge Terry A. Crone, filed a dissent blasting the casino's actions as morally "repugnant" and said the state failed to set high standards for casinos while reaping financial gains from them.

    Even in siding with the casino, Mathias and Darden wrote that they were "troubled" that Caesars would allow Kephart to cash six markers in order to wager and then lose all of the money. They also said they sympathized with Kephart's plight because state law allows casinos to recoup triple the amount of unpaid funds and attorneys' fees.

    The case began in Harrison Circuit Court two years ago when Caesars, now Horseshoe Southern Indiana, sued Kep hart for failing to repay $125,000 in credit the casino extended to her while she played blackjack.

    Her lawyer contended that the casino purposely targeted Kephart before a trip in March 2006 to get a chunk of a family inheritance. Kephart countersued, alleging that the casino enticed her with offers of money to gamble, free hotel stays and other giveaways while knowing she had emerged from bankruptcy four years earlier.

    Harrison Circuit Judge H. Lloyd Whitis denied the casino's motion to dismiss the case, and the casino's lawyers appealed Whitis' ruling.

    The appeals panel overturned Whitis. Echoing previous rulings in Indiana and other states, Mathias and Darden said casino operators don't have to prevent patrons from gambling and thus aren't responsible for the losses of an addicted gambler.

    They noted that Kephart had not taken a common step used by other addicted gamblers by asking the casino to ban her. If she had, they said, state regulations requiring that casinos cut off their marketing and other enticements to such people would have taken effect.

    Noffsinger said yesterday that such reasoning missed the point in Kephart's case.

    "This was much more than marketing," he said. "They sent a car to her front door."

    He said Crone's dissent summarized his arguments — specifically that casinos shouldn't be allowed to take advantage of vulnerable customers.

    Posted by Marcia Oddi on Saturday, March 21, 2009
    Posted to Ind. App.Ct. Decisions

    Environment - More on: "State offers loan for Dana site cleanup"

    Updating this ILB entry from March 19th, the Fort Wayne Journal Gazette has this editorial today, retracing the situation that leaves the City of Angola on the hook for $2.5 million.

    Posted by Marcia Oddi on Saturday, March 21, 2009
    Posted to Environment

    Ind. Decisions - More on "Federal magistrate urges ban of schools’ faith study"

    Updating this Feb. 4th ILB entry, Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a story that begins:

    A federal judge banned Bible trailers from an area school district, granting a request by a woman who claimed the religious education program violated her child’s civil rights.

    In a ruling issued Thursday, U.S. District Senior Judge James T. Moody agreed with the findings of Magistrate Judge Roger Cosbey and granted a preliminary injunction prohibiting Huntington County Community Schools from continuing to allow a religious education program to operate on school grounds.

    In November, the American Civil Liberties Union filed a lawsuit against the school district on behalf of a parent, identified only by her initials, of a child at Horace Mann Elementary School in Huntington.

    The federal lawsuit alleged the “By the Book Weekday Religious Instruction” program violated the establishment clause of the U.S. Constitution by allowing religious instruction on school property.

    Earlier this year, Cosbey held a hearing about whether the program should be shut down in its current incarnation. School officials argued for a dismissal of the lawsuit.

    But Cosbey believed that, while the district would suffer minimal harm if the program were shut down, the plaintiff faced continued “irreparable harm” by the constitutional violation.

    Cosbey recommended Moody grant the plaintiff’s request for the removal of the trailer from school property.

    Moody agreed.

    Posted by Marcia Oddi on Saturday, March 21, 2009
    Posted to Ind Fed D.Ct. Decisions

    Friday, March 20, 2009

    Ind. Law - More on "Indiana fire codes could be tougher" says Star. And they could be accessible, says ILB

    Updating this ILB entry from March 15th, where I note that the Indiana Fire Code simply incorporates by reference the copyrighted "International Fire Code, 2006 Edition, first printing * * * except those revisions made in sections 2 through 49 of this rule" ...

    This means that if you access Indiana's 675 IAC 22 at the State of Indiana's Administrative Code website, you will find nothing but 50-some pages that read like this: "Amend Section 304.1.2 by deleting the last sentence in its entirety without substitution." You will not find the International Fire Code, 2006 Edition.

    Even if you find a copy of the ""International Fire Code, 2006 Edition, first printing," you have to read it in conjunction with the 50-page of 2008 Indiana revisions - that means looking back and forth between two different documents.

    And recall that the State no longer publishes paper versions of the Indiana rules; they exist only online.

    Thursday I received this note from a reader:

    Marcia – I was recently frustrated by this issue while attempting to get a design release from the Fire Marshal’s office. Their requests for more information would include references like those in your recent posting. I finally found this resource and thought you might want to share it with your readers I had to give up some personal information to register for the free service, and there are restrictions, but it is useful. Thanks for the great service you provide.
    The link is to the International Code Council Online Library. You can use it to access an online version of, for example, the International Fire Code. It does not have the "International Fire Code, 2006 Edition, first printing," but it has the fourth printing. (Interestingly, I did not find a "Section 304.1.2." in the fourth printing.)

    All of this is very difficult, however, when you are reading complex material. How much easier it would be with an up-to-date, merged version which could truly be called the "Indiana Fire Code" and which was also available in printed form, or at a minumum could be printed out by the user.

    Also, as noted in this Sept. 2, 2008 ILB entry, Carl Malamud has made available online the bulk files for the various international buildings codes. Here is the website - public.resource.org. (But beware, the fire code is a 37M document.)

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to Indiana Law

    Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

    For publication opinions today (4):

    In Massood Jallali v. National Board of Osteopathic Medical Examiners, Inc. (NBOME), 10-page opinion, Judge Barnes writes:

    The dispositive issue we address is whether NBOME's Indiana complaint should have been dismissed on comity grounds, because it was filed after Jallali initiated legal action in Florida. Comity differs from full faith and credit in that it applies to matters other than final judgments and is not a constitutional requirement. See Ventura County, State of Cal. v. Neice, 434 N.E.2d 907, 910 (Ind. Ct. App. 1982). Rather, comity is “a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same question.” Kentner v. Indiana Pub. Employers' Plan, Inc., 852 N.E.2d 565, 575 (Ind. Ct. App. 2006) (quoting American Econ. Ins. Co. v. Felts, 759 N.E.2d 649, 660 (Ind. Ct. App. 2001)), trans. denied. Under comity, an Indiana state court may dismiss a case in order to respect proceedings pending in another state's court. Felts, 759 N.E.2d at 660.

    Generally, whether to exercise comity is a matter within a trial court's discretion, and we review such a decision for an abuse of discretion. In re Arbitration Between Am. Gen. Fin. Servs., Inc. & Miller, 820 N.E.2d 722, 724 (Ind. Ct. App. 2005). However, it also has been said that “on grounds of comity, the power of one state to interfere with a litigant who is in due course pursuing his rights and remedies given under the law, in the courts of another state, should be exercised sparingly.” New York, C. & St. L.R. Co. v. Perdiue, 97 Ind. App. 517, 523, 187 N.E. 349, 351 (1933). * * *

    But because the Florida case already was pending when NBOME filed this action, the Florida case should be allowed to proceed to completion. The same is true of NBOME's claims that Jallali's Florida lawsuit is “frivolous, unreasonable, groundless, and/or in bad faith.” We presume the Florida court can adequately assess whether that is the case. Furthermore, we conclude, given the substantial similarity between the parties, subject matter, and remedies sought in both the Indiana and Florida lawsuits, the trial court here ought to have exercised its discretion in favor of deferring to the already-pending Florida litigation in the interests of comity.

    Conclusion. The trial court abused its discretion in denying Jallali's motion to dismiss NBOME's Indiana lawsuit on comity grounds. We reverse the denial of the motion to dismiss, which also necessarily results in reversal of the partial grant of summary judgment in favor of NBOME, and remand for the trial court to dismiss NBOME's complaint. Reversed and remanded.

    In Caesars Riverboat Casino v. Genevieve Kephart, a 28-page, 2-1 opinion, Judge Mathias writes:
    Caesar's Riverboat Casino, LLC (“Caesar's”) filed suit in Harrison Circuit Court alleging that Genevieve M. Kephart (“Kephart”) failed to provide funds to cover checks written while gambling at Caesar's establishment. Kephart countersued alleging that Caesar's took advantage of her pathological gambling condition to unjustly enrich itself. Caesar's filed a Trial Rule 12(B)(6) motion on Kephart's counterclaim. The trial court denied Caesar's motion and Caesar's appeals. Concluding that Indiana's common law does not provide Kephart a private cause of action in negligence against Caesar's in the form of a counterclaim, we reverse.

    Conclusion. For all of these reasons, the facts alleged in Kephart's counterclaim “are incapable of supporting relief under any set of circumstances.” Godby, 837 N.E.2d at 149. 7 There is no common law duty obligating a casino operator to refrain from attempting to entice or contact gamblers that it knows or should know are compulsive gamblers. Caesar's motion to dismiss under Trial Rule 12(B)(6) therefore should have been granted by the trial court. Reversed.

    DARDEN, J., concurs.
    CRONE, J., dissents with separate opinion. [which begins, on p. 18 of 28] In this appeal, we consider as a matter of first impression for this Court whether a casino—a gambling enterprise that owes its existence to, is regulated by, and is a source of revenue for the State of Indiana—has a common law duty to refrain from enticing to its premises a known pathological gambler who has not requested that she be removed from the casino's direct marketing list or excluded from the casino. The majority concludes that no such duty exists. I respectfully disagree. [ILB emphasis]

    Andre Lavoie v. State of Indiana - "Lavoie faced a maximum sentence of eighty-six years in prison. In balancing the heinous nature of Lavoie‟s actions against his lack of a significant criminal history and his guilty plea, the trial court arrived at an aggregate sentence of seventy-one years. In light of Lavoie‟s character and the nature of his crimes against T.H., we conclude that this sentence is not inappropriate. "

    Lisa M. Beckingham v. Review Board of the Indiana Dept. of Workforce Development and Cenveo Corp. is an 18-page, 2-1 opinion written by Sr. Judge Hoffman. Some quotes:

    Plaintiff-Appellant Lisa M. Beckingham appeals the decision of the Unemployment Insurance Review Board (“the Board”) denying her application for unemployment benefits. We affirm.

    Beckingham presents two issues for our review, which we restate as: I. Whether Beckingham was discharged for just cause. II. Whether Beckingham’s discharge should have been reviewed under Ind. Code § 22-4-15-1(d)(3) rather than Ind. Code § 22-4-15-1(d)(2). * * *

    [W]e therefore conclude that Beckingham was discharged for just cause pursuant to Ind. Code §22-4-15-1(d)(2). The second and final issue raised by Beckingham is whether her discharge should have been reviewed under Ind. Code § 22-4-15-1(d)(3) rather than Ind. Code § 22-4-15-1(d)(2). * * *

    We may not interpret a statute that is clear and unambiguous on its face. Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 215 (Ind. Ct. App. 1999), trans. denied. Rather, the words of the statute are to be given their plain, ordinary and usual meaning. Id. Ind. Code § 22-4-15-1(d) is written in the disjunctive. Accordingly, discharge for just cause can be established under any of the eight subsections. This point was addressed in Beene when the same argument that Beckingham presents here was presented by Beene. A panel of this Court noted:

    The [ ] conclusion that Beene could be discharged and denied benefits for violating the Employer’s uniformly enforced, reasonable attendance policy obviates the need to determine whether there was good cause for her poor attendance under IC 22-4-15-1(d)(3) as that statute lists several disjunctive definitions of just cause, any one of which would support the discharge and denial of benefits.
    Beene, 528 N.E.2d at 846. In addition, in her dissenting opinion in Giovanoni, Judge Brown stated that the statute, as it is now written, does not require attendance issues to be addressed under Ind. Code § 22-4-15-1(d)(3). Rather, the statute is written in the disjunctive such that we may analyze an attendance issue under section (d)(2) or section (d)(3). Moreover, Judge Brown noted that it is up to the legislature to change the wording of the statute if it determines that Section (d)(2) should not apply to attendance issues. See Giovanoni, 2009 WL 200249 (Brown, J., dissenting). Thus, the Board’s determination that Beckingham was discharged for just cause pursuant to Ind. Code § 22-4-15-1(d)(2) is proper.

    Based upon the foregoing discussion and authorities, we conclude that Beckingham was discharged for just cause under Ind. Code § 22-4-15-1(d)(2) and that, based upon the language of the statute, the attendance issue in this case was not required to be reviewed under Ind. Code § 22-4-15-1(d)(3). Affirmed.

    DARDEN, J., concurs.
    NAJAM, J., dissents with separate opinion. [which begins on p. 14 of 18]

    NFP civil opinions today (1):

    Timothy McFadden v. Kurt Ness, et al (NFP) - "Thus, we agree with the trial court that the well-settled principle controls here, i.e., that, based upon a lack of duty, a landlord is not liable for injuries sustained by a tenant on the leased property after the landlord has surrendered control of the property to the tenant. The trial court did not err in granting summary judgment in favor of Ness Realty on this basis. "

    NFP criminal opinions today (4):

    Christopher A. Mendez v. State of Indiana (NFP)

    Ismael Leonardo v. State of Indiana (NFP)

    David Cassidy v. State of Indiana (NFP)

    John Pickett v. State of Indiana (NFP) - petition on rehearing, where the two remaining members of the panel agree with the petitioner that the third member should have recused himself:

    With these principles in mind, we conclude that the following steps shall be taken: (1) The memorandum decision handed down on January 21, 2009 shall be withdrawn; (2) the Court of Appeals Administrator’s Office shall designate a replacement for Judge Bradford on the panel, and (3) after the replacement judge has been named, consideration of the appeal will proceed as normal by the newly constituted panel. Petition granted.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Gov't. - When everyday Hoosiers seek public information under the Access to Public Records Act, their requests often aren't filled in a timely manner, or are ignored altogether

    Joy Leiker of the Muncie Star Press reports on the problems the public has with governmental compliance with Indiana's public access laws. The story includes this side-bar:

    The top five complaints Hoosiers filed with the Public Access Counselor so far this fiscal year. (Beginning July 1, 2008 to present.)

    1. The agency didn't respond in time. (Requests for information delivered on paper, in person, must be answered within 24 hours. Requests received electronically or by mail must be answered within seven days.)

    2. No response to a request for information.

    3. Officials denied a request for information, but didn't cite a state statute, or cited the wrong statute, as to why they shouldn't provide the information.

    4. No notice posted for a public meeting.

    5. A board meets in executive session illegally. (Closed-door meetings can only be held for certain reasons, such as discussions for collective bargaining, the purchase or lease of property or to receive information and interview employees.)

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to Indiana Government

    Law - Two interesting items from other law blogs

    SCOTUSBlog's report on the Dawn Johnsen nomination includes a link to the webcast of the committee debate and vote.

    The Volokh Conspiracy has an item on how a law professor's article on his jury experience in New Jersey led to an overturned verdict.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to General Law Related

    Law - "Governors can reject stimulus, congressional report concludes"

    So reads the headline to this story by James Rosen of McClatchy Newspapers. Some quotes from the story:

    A nonpartisan congressional report released Wednesday concludes that it likely would be unconstitutional for a legislature to supplant a governor in accepting and using economic stimulus money.

    The Congressional Research Service analysis could imperil tens of millions of stimulus dollars reserved for South Carolina and Texas, whose Republican governors have said they will reject some of their states' shares of the money. * * *

    The report by CRS, the research arm of Congress, focuses on a key clause in the stimulus law.

    Aimed at bypassing governors who oppose using deficit spending to jolt the economy, the provision authorizes a legislature to apply for its state's share of the stimulus funds if the governor fails to do so within 45 days of the measure's Feb. 17 enactment - by April 3.

    That provision could be challenged because it appears to blur the constitutional separation of powers between the executive and legislative branches of state government, the CRS found. * * *

    The report focuses on the 10th Amendment of the U.S. Constitution. That amendment, part of the Bill of Rights, codifies the principle of federalism and delineates the separation of powers between states and the federal government.

    "An interpretation ... which provided that a state legislature could, by concurrent resolution, direct the activities of a governor, state and local entities would appear to violate the Tenth Amendment," the report concluded.

    That amendment says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    The Congressional Research Service found that the stimulus law contains ambiguous language about the roles of state legislatures and governors. It also said several sections of the law contradict other parts of it.

    The ILB has searched the web and this CRS report, which came out this week, is nowhere to be found. Yet. The CRS does not provide direct public access to its reports. But they turn up quickly on sites such as this. Or a congressional staffer could obtain this one ...

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to General Law Related

    Courts - Justice Ginsburg looks back on Harvard Law School, early career

    A good article today by Joanna Nairn, writing for the Harvard Law Record. A quote:

    Justice Ginsburg joined Pulitzer Prize-winning journalist Linda Greenhouse, First Circuit Court of Appeals Chief Judge Sandra Lynch, and U.S. District Court Judge Nancy Gertner for a conversation about the evolution of women's interaction with the law over the past four decades. Much of the discussion focused on the contributions of Justice Ginsburg herself, who was a vigorous advocate for women's rights before being nominated to the bench. After co-founding the ACLU's Women's Rights Project in 1972, Justice Ginsburg went on to argue five cases before the Supreme Court, including the landmark case of Reed v. Reed that was the first to strike down a law because of sex-based discrimination.
    I've checked C-SPAN and see that Justice Ginsburg will be on America & the Courts this Saturday, giving a speech at the New England Law School in Boston.

    C-SPAN has also recorded this Symposium on Justice Ruth Bader Ginsburg held March 12th in Boston, but it has not yet aired.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to Courts in general

    Environment - "Corporations’ “water footprint” — assessing their water use and pollution — should be disclosed in SEC financial reports"

    Barry B. Burr reported in Pensions & Investments on Feb. 26th that:

    Corporations’ “water footprint” — assessing their water use and pollution — should be disclosed in SEC financial reports along with companies’ strategies for dealing with expected growth in water-related costs, according a report by Ceres and the Pacific Institute.

    “Investors also have a significant interest and role” in encouraging companies “to look more closely at their potential risk exposure to water-related challenges,” according to the 60-page report issued today. Investors should be aware of potential financial, regulatory and reputational risks corporations face related to water usage and availability that could drive up costs, the report said.

    “Companies should publicly report management activities and key metrics on their water use and impacts, and track how their performance changes over time” to help shareholders assess how companies address water risks as well as business opportunities in the area, the report said.

    The “era of cheap and easy access to water is ending, posing a potentially greater threat to businesses than the loss of any other natural resource” because “there is no substitute for water,” the report said.

    From an AP story by Garance Burke:
    FRESNO, Calif. (AP) — As more companies become conscious of their carbon footprint, a new movement is urging corporations to track their "water footprint" as well, or risk financial losses as freshwater supplies dry up around the globe.

    Major corporations such as Coca-Cola Co. now disclose the amount of water they use in financial reports, in an attempt to show investors they can confront threats to their water supply, according to a study released Thursday by the nonprofit Pacific Institute.

    But dozens of high-tech companies, farms and soda bottlers have lost millions because they didn't forsee the risks posed by droughts and floods tied to global warming, researchers found in a survey of 121 companies in water-intensive industries.

    Here is the Pacific Institute report:
    "Water Scarcity and Climate Change: Growing Risks for Businesses and Investors" identifies water-related risks specific to eight key industries, including electric power, high-tech, beverage, agriculture, apparel, biotechnology/pharmaceutical, forest products, and metals/mining firms.
    Water Footprint is the name of an international site with extensive information on the globalization of water.

    NPR's Morning Edition this morning had this story by Greg Allen headed "Florida Debates Water Tax On Bottlers":

    Each day more than five million gallons of spring water is bottled in Florida, and companies pay almost nothing for local water permits. Florida is considering joining other states that have imposed "severance fees" on commercially bottled spring water. It would charge six cents for every gallon taken from springs or aquifers.
    See also these ILB entries from Oct. 22, 2007 and Aug. 29, 2008.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to Environment

    Law - Attorney General Holder Issues New FOIA Guidelines

    From the Blog of Legal Times, an entry begins:

    Attorney General Eric Holder Jr. strongly encouraged federal agencies to voluntarily disclose information requested by the public under the Freedom of Information Act, in a new set of guidelines issued Thursday.

    In a memorandum outlining the guidelines, Holder wrote that the Justice Department will defend denial of records only if an agency “reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions,” such as national security and law enforcement interests, or if disclosure is prohibited by law.

    The new standard signals a shift away from the Bush administration’s practice of deploying FOIA exemptions whenever possible, but it's unclear what impact the memo will have on pending FOIA cases.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to General Law Related

    Courts - "Judge Blocks Rule Permitting Concealed Guns In U.S. Parks"

    Juliet Eilperin and Del Quentin Wilber report today in the Washington Post:

    A federal judge yesterday blocked a last-minute rule enacted by President George W. Bush allowing visitors to national parks to carry concealed weapons.

    U.S. District Judge Colleen Kollar-Kotelly issued a preliminary injunction in a lawsuit brought by gun-control advocates and environmental groups. The Justice Department had sought to block the injunction against the controversial rule.

    The three groups that brought the suit -- the Brady Campaign to Prevent Gun Violence, the National Parks Conservation Association and the Coalition of National Park Service Retirees -- argued that the Bush action violated several laws.

    In her ruling, Kollar-Kotelly agreed that the government's process had been "astoundingly flawed."

    She noted that the government justified its decision to forgo an environmental analysis on the grounds that the rule does not "authorize" environmental impacts. Calling this a "tautology," she wrote that officials "abdicated their Congressionally-mandated obligation" to evaluate environmental impacts and "ignored (without sufficient explanation) substantial information in the administrative record concerning environmental impacts" of the rule.

    Here is the 44-page, March 19th decision in the case of Brady Campaign to Prevent Gun Violence v. Salazar.

    Readers may recall that the Indiana Dept. of Natural Resources lifted its ban on licensed handguns in state parks in Sept, of 2006. Here is a list of relevant ILB entries.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to Courts in general

    Law - More on: Senate panel OKs Ind. nominee Dawn Johnsen for DOJ role

    Updating yesterday's ILB entry, David Ingram of Legal Times reports today in a story that begins:

    The Senate Judiciary Committee voted along party lines Thursday to endorse Dawn Johnsen to lead the Justice Department's Office of Legal Counsel, sending her nomination to the full Senate for what is expected to be a contentious debate.

    The 11-7 vote reflects sharp division over Johnsen's writings on abortion and national security. She was legal director of NARAL Pro-Choice America from 1988 to 1993, and, while a law professor at Indiana University at Bloomington, Johnsen has been a prominent critic of the Office of Legal Counsel's opinions on torture, executive power, and other issues related to the Bush administration's anti-terrorism policies.

    Posted by Marcia Oddi on Friday, March 20, 2009
    Posted to General Law Related

    Thursday, March 19, 2009

    Ind. Decisions - Court of Appeals issues 5 today (and 20 NFP)

    For publication opinions today (5):

    In In the Matter of N.E.; N.L. v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc. , a 24-page, 2-1 opinion, Judge Riley writes:

    Normally, a juvenile court would determine that a child is either a CHINS or is not a CHINS when presented with a CHINS petition. However, before the juvenile court, Father articulated the argument that although N.E. was a CHINS with respect to Mother, she was not a CHINS with respect to him. This is an interesting perspective which we feel deserves further consideration. * * *

    Without allegations from the DCS alleging that Father has been negligent, deficient, or worse in his duties as a parent, the trial court's findings with respect to Father should be directed solely at his willingness and ability to appropriately parent N.E. This the trial court has not yet done. * * *

    Once a non-custodial parent demonstrates that he or she is willing and able to parent to the child alleged to be a CHINS, due process requires that the DCS present allegations directed at that parent, which, if proved, would meet the requirements for a CHINS determination under Indiana Code chapter 31-34-1 if the DCS thinks it is appropriate for the court to intervene in that parent child relationship. This would require an amendment of the existing petition or the filing of a new petition. Thereafter, the DCS must prove those allegations by a preponderance of the evidence and the trial court must make specific findings based on the record concluding that the child is a CHINS.

    Based on the foregoing, we conclude that the DCS has not alleged N.E. to be a CHINS with respect to Father. Therefore, we remand for the juvenile court to determine whether Father is willing and able to appropriately parent N.E. since N.E. is a CHINS with respect to mother. Reversed and remanded with instructions.

    DARDEN, J., concurs.
    VAIDIK, J., dissents with separate opinion. [which begins, at p. 17 of 24] I respectfully disagree with the majority's conclusion that N.E. is a CHINS as to Mother only. Rather, I believe that a child is either a CHINS or is not a CHINS and that the DCS has met its burden of proving that N.E. is a CHINS. However, because I believe that the juvenile court's dispositional order falls short of the statutory requirements and therefore we do not know the court's reason for its disposition, I would remand this case for a new dispositional order in accordance with Indiana Code § 31-34-19-10. Because the majority is remanding for a different purpose, I dissent.

    As an initial matter, I believe that a child is either a CHINS or is not a CHINS because a CHINS determination regards the status of the child. For this reason, I believe that the act of one parent can be enough for a child to be adjudicated a CHINS.

    In Gloria A. Murray, et al v. City of Lawrenceburg, et al, a 28-page, 2-1 opinion, Judge Mathias writes:
    Gloria Murray et al. (“the Plaintiffs”) brought suit against the City of Lawrence (“the City”), the Lawrenceburg Conservancy District (“the Conservancy District”), and Indiana Gaming Company, L.P. (“Indiana Gaming”) (collectively “the Defendants”), claiming ownership of a certain portion of land being used by the Defendants. The Defendants filed a motion for a judgment on the pleadings, which the trial court denied. The trial court then denied the Plaintiffs' demand for a jury trial. The Plaintiffs now bring this interlocutory appeal and claim that the trial court erred in denying their demand for a jury trial. The Defendants cross-appeal and claim that the trial court erred in denying their motion for judgment on the pleadings. * * *

    Conclusion. The Defendants' cross-appeal is properly before us, as our earlier decision to decline to accept interlocutory jurisdiction is not final, and we now, under these limited facts and circumstances, choose to reconsider our earlier decision to decline jurisdiction over the Defendants' appeal from the trial court's certified interlocutory order. Considering the merits of the Defendants' cross-appeal, we conclude that the Plaintiffs' were not required to bring a claim for inverse condemnation, because inverse condemnation is not an exclusive remedy and because ownership of the Disputed Property has not yet been determined. Therefore, the trial court did not err in denying the Defendants' motion for judgment on the pleadings. Lastly, the essential features of the Plaintiffs' lawsuit were not equitable, and the entire case is therefore not drawn into equity. On remand, as stated in footnote 8, supra, the trial court should resolve the timeliness of the Plaintiffs' claims; sever the timely-filed distinct, legal claims; and grant the Plaintiffs' demand for a jury trial as to these claims. The judgment of the trial court is affirmed in part, reversed in part, and the cause is remanded for proceedings consistent with this opinion.

    Affirmed in part, reversed in part, and remanded.

    BROWN, J., concurs.
    BAKER, C.J., dissents with opinion [which begins, on p. 25] I respectfully dissent. At first glance, the majority's analysis, which hinges on the identity of the property owner, is compelling. Upon taking a closer look, however, I must disagree. Of course “the Defendants' argument . . . assumes that the Plaintiffs own the real estate at issue”—that is what the complaint alleged. Slip op. p. 14 (emphasis in original). The Plaintiffs crafted their lawsuit around a central theory—that they are the rightful owners of the property. I believe that it is the nature of the complaint that frames the case, not the nature of the response. Thus, that the Defendants claim in their answer that they also own the property does not change the fact that all of the Plaintiffs' theories are premised on the opposite contention. I think that the result reached by the majority will effectively preclude most, if not all, inverse condemnation actions in the future, and I cannot countenance such a result.

    In Jennifer Hovey v. Jimmy Hovey , an 11-page opinion, Judge Riley writes:
    [Issue] Whether the trial court properly amended Father’s child support arrearage when no pleading was filed, no notice to Mother was given, and no evidentiary hearing was held. * * *

    In light of these procedural irregularities—the lack of notice, no evidentiary hearing, and admission of evidence after the Order is entered—Mother requests us to declare the trial court’s Orders of March 8, 2006 and July 24, 2006 void and to strike them. As such, Mother implicitly invokes the void judgment provision of Indiana Trial Rule 60(B)(6).

    The distinction between a void and voidable judgment is no mere semantic quibble. * * * Here, no notice was given of the alleged evidentiary hearing. We have previously held that a judgment is without legal efficacy for want of due process if a party was not given notice. Id. at 478-79 (stating that T.R. 41(E) requires an adversarial hearing prior to dismissal necessitating notice and an opportunity to be heard). Therefore, we reverse the trial court’s Order On Proceedings Of April 30, 2008, vacate the trial court’s Orders of March 8, 2006 and July 24, 2006, and remand to the trial court with instructions to hold an evidentiary hearing on Father’s claim that his child support arrearage was wrongly calculated.

    Conclusion. Based on the foregoing, we conclude that due to trial court’s procedural irregularities, the trial court’s Order of March 8, 2006 and July 24, 2006 are void and vacated. We remand to the trial court with instructions to conduct an evidentiary hearing on Father’s child support arrearage. We reverse, vacate, and remand with instructions.

    In Gulf Stream Coach, Inc. v. Joseph Cronin and Dawn Cronin, an 8-page opinion, Judge Riley writes:
    In two recent cases, our supreme court has urged an adherence to the spirit and intent of the preferred venue rules. See Chamness, 879 N.E.2d at 558; R & D Transport, Inc. v. A.H., 859 N.E.2d 332, 336-37 (Ind. 2006). A holding that sanctioned the sort of hijinks described above would no doubt be contrary to that spirit and intent. As such, we hold that, when a party moves a chattel to a county, whether from out-of- state or from another Indiana county, solely for purposes of litigation, that county does not become the county where the chattel is “regularly located and kept” under Rule 75(A)(2) and therefore is not a preferred venue under Rule 75.

    We understand the position the Cronins are in here. They have no connection to Indiana, yet they were required to bring suit here by the terms of their warranties. They had to pick a county in which to file suit, and they did that. And they did so in a county, Madison, with proper venue. See Chamness, 879 N.E.2d at 556 (“any case may be venued in any court in the state”). But just because a county would be a proper venue does not mean that it is a preferred venue. The right of a plaintiff to file suit in any county in the state is subject to the right of an objecting party to request that the case be transferred to a preferred venue listed in Rule 75(A). Id. Unfortunately for the Cronins and their attorney, Gulf Stream made such a request.

    Conclusion. Based on the foregoing, we conclude that the trial court erred by denying Gulf Stream’s motion to transfer venue, and we remand this cause to the trial court with instructions to transfer venue to Elkhart County, pursuant to Indiana Trial Rule 75(A)(4). Reversed and remanded with instructions.

    In Atul Kumar v. Bay Bridge, LLC, a 7-page opinion, Judge Mathias writes:
    Bay Bridge LLC (“Bay Bridge”) filed a complaint in Lake Superior Court to quiet title to a parcel of real estate commonly known as 149 th and Colfax, Cedar Lake, Indiana (“the real estate”) and named Atul Kumar (“Kumar”) as a defendant. Kumar had purchased the real estate at a tax sale but failed to record his deed. The trial court granted Bay Bridge’s motion for summary judgment. Kumar appeals and raises several issues. However, we address only the following dispositive issue: whether Bay Bridge was a bona fide purchaser of the real estate at issue. * * *

    From our review of the record before us, we conclude that Bay Bridge designated evidence establishing that it was a bona fide purchaser for value, and Kumar failed to designate any evidence that would create a genuine issue of material fact on this issue. Therefore, the trial court properly granted Bay Bridge’s motion for summary judgment on its complaint to quiet title. Affirmed.

    NFP civil opinions today (4):

    Terri McGuire v. Tami Sontag (NFP)

    Madison Co. Baord of Commissioners and Madison Co. Auditor v. Town of Ingalls (NFP) - "Madison County contends that there are valid policy reasons which justify a conclusion that it has standing to challenge the annexations. Further, Madison County argues that it is not seeking to remonstrate against the ordinances, but rather it is seeking to “assert its statutory duty to carry out its taxing duty . . . its duty to maintain county roads . . . and zoning schemes.” However, the sole means for challenging an annexation is remonstrance. City of Hobart, 596 N.E.2d at 1375. And, Madison County does not satisfy any of the requirements for standing to remonstrate against the acts of annexation. See I.C. §§ 36-4-3-11, 15.5, 16, and 17. As such, Madison County must work with the Town of Ingalls and affected property owners to work out an amiable solution for its problems, or seek a solution from our legislature that may or may not involve the crafting of a method for recourse to the courts. We conclude, Madison County does not have standing to seek our intervention in the Town of Ingalls' acts of annexation, nor do we have the authority to provide the relief which Madison County requests.

    "Conclusion. Based on the foregoing, we conclude that the trial court did not err when it granted summary judgment to the Town of Ingalls on Madison County's claims."

    In Re: the Matter of the Paternity of Minor Child, M.A., by Next Friend, T.R. v. C.A. (NFP)

    Randall and Linda West v. Theodore (Buck) and Catherine (Cathy) Retmier (NFP) - "In sum, the trial court’s conclusion that the Retmiers made a reasonable and good faith effort to obtain financing is not clearly erroneous. Because the Retmiers filled this obligation, they had legal cause to not close on the transaction and were entitled to the return of their earnest money. Finally, the trial court’s award of attorney’s fees to the Retmiers was not erroneous as such relief was agreed to by the contracting parties and enforcing this provision does not violate public policy. Affirmed. "

    NFP criminal opinions today (16):

    In the Matter of O.C. v. State of Indiana (NFP)

    Devlyn R. Bowen v. State of Indiana (NFP)

    Josefina Hernandez-Romulado v. State of Indiana (NFP)

    Robert Duncan v. State of Indiana (NFP)

    Richard L. Newman v. State of Indiana (NFP)

    Harry A. Oberlin v. State of Indiana (NFP)

    Edward Murrell v. State of Indiana (NFP)

    Kurt C. Hobbs v. State of Indiana (NFP)

    Eric Proffitt v. State of Indiana (NFP)

    Mel A. Trowbridge v. State of Indiana (NFP)

    Larry Latham v. State of Indiana (NFP)

    Darry Hayes v. State of Indiana (NFP)

    Michael Garnett v. State of Indiana (NFP)

    Harry H. Campbell v. State of Indiana (NFP)

    Chris Thomas Hicks v. State of Indiana (NFP)

    Jonathon R. Mitchell v. State of Indiana (NFP)

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Ind. App.Ct. Decisions

    Law - Senate panel OKs Ind. nominee Dawn Johnsen for DOJ role

    Marueen Groppe has this report in the Indianapolis Star. It begins:

    WASHINGTON — The nomination of Hoosier lawyer Dawn Johnsen to be assistant attorney general for the Justice Department's office of legal counsel was approved today by the Senate Judiciary Committee over the objection of Republicans.

    Pennsylvania Sen. Arlen Specter, the top Republican on the committee, declined to vote, saying he wanted the nomination to move forward to the full Senate but still has questions for Johnsen.

    “I want to talk to the nominee again,” Specter said. “There are parts of the record which are very difficult to understand.”

    Johnsen is scheduled to give the opening address at the 58th Annual Meeting of the Seventh Circuit Bar Association and Judicial Conference of the Seventh Circuit, to be held here in Indianapolis at the Westin from May 17, 2009 through May 19, 2009. More information here. From the program for Monday, May 18th:
    9:30 AM – 10:00 AM Opening Address: Dawn Johnsen, Assistant Attorney General Designate, United States Department of Justice, and former Professor of Law at the Indiana University School of Law – Bloomington, will speak on “The Priorities of the Department of Justice Under the New Administration.”

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to General Law Related

    Ind. Law - More on: "2 Indiana legislators want longer sentence for killing fetus"

    Updating this comprehensive ILB entry from Feb. 1st, the Indianapolis Star has a report today headed "Bill stiffens feticide law: House measure would extend prison time when unborn child dies during crime against mother." The bill, heard yesterday in the House Public Policy Committee, is SB 236.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Indiana Law

    Ind. Law - Abortion requirements re hospital admission privileges heard at county level now proposed as state legislation

    Last fall the ILB had several entries on efforts in Allen and Vanderburgh counties to require doctors performing abortions to have admitting privileges at local hospitals. This entry from Sept. 26, 2008 provides an overview and includes links to earlier entries.

    Today there are several stories on the issue, as the result of a House Public Policy Committee yesterday.

    Bill Ruthhart has a report in the Indianapolis Star which includes a striking graphic identifying the five counties in Indiana where abortions are performed. From the story:

    Indiana women could have fewer options to obtain abortions under legislation that would require doctors who perform the procedure to have admitting privileges at a hospital.

    Backers of Senate Bill 89 say a woman who has an abortion deserves to be able to follow up with that physician at a local hospital if complications arise.
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    Critics, including Planned Parenthood, say the legislation is a poorly veiled attempt to hamper a woman's right to have an abortion.

    Of the seven physicians performing abortions in Indiana, only one Marion County doctor has admitting privileges at a hospital. * * *

    The bill, authored by Sen. Patricia Miller, R-Indianapolis, passed the Republican-controlled Senate by a 44-6 vote. The Democrat-led House chose not to take up similar legislation last year, but on Wednesday the House Public Policy Committee heard testimony on the issue.

    The panel delayed any action on the bill until next week, but familiar foes on abortion issues squared off during the hearing.

    Niki Kelly reports at length in the Fort Wayne Journal Gazette; some quotes:
    The House Public Policy Committee will hear more testimony and likely vote on Senate Bill 89 next week. The language has passed the Senate before, but this is the first time the House has taken up the issue.

    Some Indiana counties have been considering similar proposals, including Allen County. County commissioners in Vanderburgh County, which includes Evansville, became the first in Indiana to pass an abortion ordinance regarding hospital privileges.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Indiana Law

    Ind. Law - More on the 2009 Sunshine Week survey spotlighting death certificates

    Yesterday, this ILB entry focused on the widely disseminated 2009 Sunshine Survey, and specifically its section on "online access" to death certificates nationwide. Indiana failed that part of the survey, as did all but five of the 50 states.

    In the entry the ILB looked at the five states that were described as providing online access to death certificates, and found the Survey's findings to be faulty. Utah was one of the five. This morning the ILB was pleased to receive this e-mail from a reader at the Utah State Archives:

    Thanks for your excellent post on what does appear to be a flaw in the Sunshine Week survey of state government records. I work in the Utah State Archives and would be greatly surprised to find recent vital records online for free (or the expectation thereof). As you point out with cited statutes, it is a matter of privacy within records law when it comes to making such records available.

    The Utah Government Records Access and Management Act generally applies a designation of private to be lifted for records 75 years old (100 years if the subject was a minor). However, both birth and death certificates are exempt from this with 100 years and 50 years respectively.

    UCA 1963 26-2-22 Inspection of vital records.

    Thanks again for your insightful analysis.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to General Law Related | Indiana Government | Indiana Law

    Ind. Law - "Theatair X attorney says ordinance unconstitutional in Clarksville"

    Matt Thacker reports in the Clark / Floyd County News & Tribune in a story that begins:

    Attorneys representing Theatair X are arguing that a Clarksville ordinance regulating how late sexually oriented businesses can stay open is unconstitutional.

    “I think it’s unconstitutional and has violated the zoning rules,” attorney Joan B. Henderson said of the ordinance. “There are certain procedures that have to be followed with an ordinance of this nature, and [Clarksville Town Council] they did not follow those.”

    The adult video store was cited Oct. 3 for staying open too late. A town ordinance states that sexually oriented businesses are not allowed to be open between 1 and 8 a.m.

    In late January, Henderson — along with a law firm from Ohio which also is representing Theatair X — filed a motion to dismiss the case in Clarksville Town Court on the grounds that the ordinance is unconstitutional.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Indiana Government

    Ind. Gov't. - "Copies fees again an issue in Clarksville"

    From the Clark / Floyd County News & Tribune:

    While researching a story on the town of Clarksville’s case against Theatair X, The Evening News was asked to pay $1 per page for copies of court papers related to this case. The total would have amounted to $15.

    Copy fees have long been an issue in Clarksville after the town council there passed an ordinance creating a 25-cents-per-page fee in 2007. State law was later rewritten after a Clarksville resident protested the fee as being excessive. And in 2008, the council was forced to rewrite its ordinance, making the charge 10 cents per page.

    The fee was levied by the Clarksville Town Court, which is headed by Judge Samuel Gwin. He was the town council’s attorney when the initial copy-fees ordinance was written.

    Gwin said a clerk in the court had decided to begin charging the fee and that he had not known about it until contacted by The Evening News.

    He said people charged with a crime are entitled to a free copy of the charges, and that they rarely receive requests from anyone else wanting to look at documents from their court.

    A court clerk told a reporter that the $1 fee was instated because of the number of requests for copies of documents relating to the Theatair X case. Prior to that, the town court charged no fee for copies. Gwin said they will now charge 10 cents per page.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Indiana Government

    Law - "Charity scraps idea for sex offender home in Kentucky"

    A lengthy story by Jeffrey McMurray in the Lexington Herald-Leader today begins:

    LEXINGTON, Ky. -- A Catholic charity in Kentucky faced an uproar over its efforts to buy a home for four registered sex offenders, continuing what supporters say is a never-ending cycle for low-income offenders trying to get their lives back on track.

    Members of the Catholic Action Center said they expected to hear fears and objections from the community when they held a forum at a Baptist church in January on their carefully planned purchase. They didn't expect to hear death threats.

    The residents' extreme reaction has scuttled the center's plan and left its leader wondering if there's anywhere to house the paroled pariahs.

    The outrage over the plan in Lexington and a similar case in New Hampshire - where a church pastor infuriated neighbors by taking in a convicted child killer released from prison - show the struggles that Christian charities or individuals face in trying to reach some of society's untouchables.

    The charity was well within the law: The property was more than 1,000 feet from a school or daycare, and police were notified days in advance. Officials even scheduled a courtesy meeting to assure neighbors that the men had to follow strict rules - drug testing, counseling and a 6 p.m. curfew. That meeting is where the plan fell apart, as neighbors voted unanimously against it.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to General Law Related

    Environment - "State offers loan for Dana site cleanup" [Update]

    Updating this ILB entry from Feb. 11th, Becky Manley of the Fort Wayne Journal Gazette reports today in a story that begins:

    Facing at least a $2.5 million shortfall in money needed to clean a contaminated former Dana Corp. site that threatens Angola’s water supply, Angola and Steuben County officials hoped the state would help pay the difference.

    During a meeting Wednesday in Indianapolis, those officials learned the most the state will offer is a no-interest loan.

    After the meeting, Angola Mayor Richard Hickman said local officials will have to review all options for paying to clean the former Dana site at 203 Weatherhead St.

    “If we do, it’s going to have to be through sewer rates,” Hickman said. “We’re disappointed, but we have some things to look at.”

    The meeting with state officials came after the current property owner, Univertical Corp., as well as the Steuben County Council and the Angola City Council each offered $1 million toward the cost, which the Indiana Department of Environmental Management said is at least $5.5 million.

    Both the county’s and the city’s contributions come from Major Moves money – revenue the county received after the Indiana Toll Road was leased to a foreign consortium.

    The state’s loan offer was made by the Indiana Economic Development Corp., Hickman said.

    Other state agencies represented at the meeting were the Indiana Finance Authority and the Indiana Department of Environmental Management.

    [Update at 3:00 PM] A different twist on the story from WLKI Angola:
    Angola Mayor Dick Hickman was hoping to get some finality on Wednesday afternoon as local officials met with representatives from the Indiana Department of Enviromental Management concerning the enviromental clean up at the former Dana Weatherhead site. But that did not happen.

    A disappointed Hickman said there was no financial commintment made by the state and federal stimulus money was likely not available due to the many requests made by other Indiana communities. Hickman indicated the most that state officials can offer right now is a no-interest loan.

    The only financial commintment the state has made so far towards the clean up is the use of proceeds from Dana stock that would come from bankruptcy proceedings.

    Univertical has been operating at the site since the mid 90's. The company along with the city of Angola and Steuben County have all pledged $1 million to the clean up which is estimated at $5.5 million.

    Major Moves money is being pledged by the city and county but after Wednesday's meeting, Hickman said bottom line they are still $2.5 million short. The Mayor was upset with the state's position that local governments should dip further into their Major Moves funds.

    Among those attending the meeting were State Senators Dennis Kruse and Marlin Stutzman along with former State Senator Bob Meeks, State Representative Dick Dodge and Steuben County Economic Development Corporation Executive Director Gary Nielander.

    The enviromental problem has contaminated one of Angola's water wells and has led to the possibility Univertical along with 55 jobs will leave Angola.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Environment

    Ind. Courts - "Lawyer sanctioned over delayed release"

    From the Indianapolis Star:

    The Indiana Supreme Court has issued a public reprimand of an Indianapolis attorney whose client sat in prison nearly a year after a Marion County court issued an order that should have freed him.

    Carolyn Rader, who represented Harold David Buntin, reached an agreement to accept the reprimand with a state disciplinary commission last year.
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    The Supreme Court approved the discipline Friday by a 3-2 vote.

    Rader failed to communicate with Buntin and his family through the delays, though disciplinary proceedings against a judge and a court commissioner showed she did contact the court more than once.

    Here is the 2-page order, filed March 13, 2009. The vote was 3-2, with the 2, CJ Shepard and J Sullivan, calling for stronger sanctions. I would quote CJ Shepard's dissent, but it is not in pasteable format, so you will need to access the order itself.

    See also these earlier ILB entries - Jan. 16, 2008 ("Cleared of rape, Indy man sues over delay in prison release") and Nov. 8, 2008 ( More on: "Panel recommends Marion County Superior Court Judge Grant W. Hawkins removal").

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Indiana Courts

    Ind. Law - More on foreclosure and bankruptcy

    The Indianapolis Star has a story this moving headed "Marion County Clerk and Superior Court Judges tout mortgage foreclosure prevention." The story was "provided by Angie Nussmeyer [who] is a media contact for the clerk."

    Foreclosures. Per Marion County Clerk Beth White's testimony before the Senate Judiciary Committee yesterday on HB 1176, lenders file the initial foreclosure complaint in the clerk's office, which:

    mails the court summons and a copy of the complaint to the borrower. In the spring of 2007, Clerk White directed her staff to begin including a flyer that provides contact information to the Indiana Foreclosure Prevention Network’s toll free hotline: 1-877-GET-HOPE. [Website]

    “Unfortunately, foreclosures are poised to become an even larger issue in our community, state and country,” Clerk White said. “When you receive notice of foreclosure, there is still time to get help – and you are not on your own. Our office is in a unique position to disseminate information to homeowners about the services of the Indiana Foreclosure Prevention Network and we are glad to partner with them.”

    Another important component to the county’s foreclosure prevention efforts is the Marion County court’s recent addition of a new local trial rule (49TR85-231). This rule offers a settlement conference as an option to get the parties together in an effort to resolve the issue in a manner that is satisfactory to everyone. [ILB - Access the Trial Rule here, at p. 53-54 of the PDF]

    Bankruptcy. A primer, along with a series of videos on bankruptcy basics, designed for "debtors, creditors, court personnel, the media, and the general public", are available from the U.S. Courts site, here.

    Posted by Marcia Oddi on Thursday, March 19, 2009
    Posted to Indiana Law

    Wednesday, March 18, 2009

    Ind. Courts - "Obama's pick for Indianapolis judge would fill spot once saved for Hammond federal judge" [Updated]

    That is the headline to an unattributed NWI Times story that begins:

    President Barack Obama nominated an Indianapolis-based federal judge to the regional appeals court Tuesday, moving to fill a seat President Bush tried to give to a Hammond federal court judge.

    Obama chose U.S. District Judge David Hamilton for the 7th Circuit Court of Appeals, contending Hamilton was a mainstream jurist who could overcome the bitter Senate confirmation fights of the past several years.

    President Bush nominated Hammond federal court Judge Philip Simon to the bench in September, but Simon's nomination died in Congress.

    One of Simon's staffers said the judge would have no comment Wednesday.

    Obama has 15 federal appellate vacancies to fill, including the 7th Circuit court that covers Wisconsin, Indiana and Illinois. Since most cases do not reach the Supreme Court, the 12 geographically based federal appellate circuits often provide the last word on a variety of issues affecting Americans.

    I'd thought there were more than a total of 15 vacancies on the Courts of Appeals.

    [More] Or maybe not. I see from this article that the 9th Circuit currently has 2 vacancies. This article says the 4th Circuit has 4 vacancies currently.

    [Updated at 3:00 PM] A reader has sent a link to this chart which, once studied carefully, lists 15 total CCA vacancies. It also lists the District Court openings, which number 52.

    Posted by Marcia Oddi on Wednesday, March 18, 2009
    Posted to Indiana Courts

    Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

    For publication opinions today (0):

    NFP civil opinions today (1):

    In Shicotta Coan v. Jeremy Boritzki and Ramona Ward (NFP), a 7-page opinion, Judge Robb concludes:

    The trial court did not abuse its discretion when it denied Coan’s motion for relief from judgment, and we affirm with respect to this portion of the trial court’s order. However, we are unable to discern the evidentiary basis for the trial court’s calculation of Boritzki’s child support arrearage. Therefore, we remand this issue for further action by the trial court, but we retain jurisdiction over the appeal. In addition, we dismiss the appeal of the denial of Coan’s motion to dismiss for lack of jurisdiction. Affirmed in part, dismissed in part, and remanded.
    NFP criminal opinions today (3):

    Prentiss Huff v. State of Indiana (NFP)

    Dejuan Sampson v. State of Indiana (NFP)

    Mike DeWitt v. State of Indiana (NFP)

    Posted by Marcia Oddi on Wednesday, March 18, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Law - More on: Indiana fails 2009 Sunshine Week survey; specifically, death certificates

    Indiana failed the 2009 Sunshine Week Survey, but some research by the ILB indicates that the Survey itself is flawed in-so-far as its statistics on the availability of "death certificates online" is concerned.

    On March 15th the ILB had an entry headed "Indiana fails 2009 Sunshine Week survey," that looked at the Sunshine Week 2009 Survey of State Government Information and at Indiana's ranking -- next to last.

    In the earlier entry, the ILB examined one of the 20 categories on which the states were rated -- disciplinary actions against attorneys -- and at precisely what online information is available to the public in Indiana.

    Death certificates. Another category in which Indiana, and in fact all but five states West Virginia, Ohio, Utah, North Dakota, and Texas), fared poorly in-so-far as providing free, online information to the public is concerned, was death certificates.

    According to the Survey:

    The Sunshine Week 2009 Survey of State Government Information online found that while more and more government records are being posted online, some of the most important information is being left offline. And in some cases governments are charging taxpayers to access records that they already paid for, such as death certificates. * * *

    Death certificates are apparently a revenue source for many states, as they charge relatives and "legitimately" interested parties for copies of the records, or farm out the work to a third-party service such as VitalChek. Some states provide historical access online to older death certificates, mostly prior to 1960, although there generally is a fee for hard copies.

    Here is the Indiana State Department of Health page for obtaining birth and death certificates. The page makes it clear you may not obtain a death certificate online. You must apply in person or by mail. The cost for the first certificate is $8.00 and $4.00 for each additional copy. You must fill out this form. You must provide identification. You may not obtain a certificate unless you "are considered to have a direct interest and are eligible to receive a copy of a death certificate." That means you must be a parent, spouse, adult child, grandparent, sibling, aunt, uncle, grandchild, niece, nephew,or cousin. According to the form, "Distant relatives will only be issued copies of the death certificate with the approval of the State Registrar unless the record is 75 years old." In addition, the State Registrar must be satisfied that "the information is necessary for the determination of personal or property rights or for compliance with state or federal law." Here is IC 16-37-1-8, which sets out the requirements. (It is not clear to me where the 75 year limit comes from.)*

    So the answer is clearly no, the State of Indiana does not provide death certificates online; in fact, death certificates, no matter how old, appear to be difficult to obtain in Indiana.

    As pointed out in the survey for Indiana and most other states, a link in the right margin of the ISDH page leads to VitalChek, A LexisNexis Company, where you may order certified copies "for your immediate family." There is a fee, and again, no records are available online from this private company that somehow has access to most states' death certificates.

    The Sunshine Week Survey reported that five states do provide death certificates online. So I took a look at them. My conclusion - the Survey is wrong.

    Here is Texas. Texas scored overall best in all categories in the Survey. But Texas death certificates are not online. You may order online.

    Texas law appears more liberal than Indiana's. In Texas, only death certificates for deaths within the past 25 years are considered protected records. You must provide identification.

    For deaths that occurred 25 years ago to the present, only the immediate family members to the name on the death certificate are eligible to request a copy. If you are not an immediate family member, you must provide legal documentation, such as an insurance policy listing you as a beneficiary, that documents a direct and tangible interest in the record.

    So what about the other four states that the Survey lists as making death certificates available online?

    Utah - The Utah state site reports:

    The Inspection of Vital Records Act (HB 84), which passed in May 1998, made historic death records available to the public fifty years after the date of death. Previously, only authorized persons had access to these records. The Office of Vital Records and Statistics began transferring custody of historic death certificates (1904-1947) to the Utah State Archives in July 1998. Each year in January a new lot of death certificates is made available for public access. Birth records remain restricted to authorized persons until one hundred years after the date of birth.
    The Utah Death Certificate Index for 1904-1956 is pretty cool, you actually can view death certificates from that period online.

    Utah death certificates less than 50 years old are classified private. To access these records, users must contact the Office of Vital Records and Statistics. Ordering is similar to the Indiana process.

    Ohio - The Ohio death certificates are not online either. They cost $16.50. Death certificates from 1954 to the present may be ordered, if you can provide the name, and date and place of death. Some earler records may be purchased online through the Ohio Historial Society, a state agency.

    West Virginia - May be ordered by mail from the website. "Certificates will only be issued to the next of kin or to persons with a legal right to the certificate." The fee is $12.00.

    North Dakota - Again, ordering by mail seems to be the preferred method. Here is the information required for ordering a death certificate in North Dakota. Note that: "A certified informational copy of a death record may be issued to the general public, but the copy may not contain the cause of death or the social security number." The death record, described in detail:

    An Informational Copy of a Death Record. Other individuals, such as genealogists, sometimes need a copy of a death record. These individuals will receive certified informational copies. These types of copies would be similar to a full death record and could be issued to anyone for any reason; however, these copies would not include the cause of death or social security numbers. This would allow anyone to obtain the information about a death, but would not allow them to use the copy for any official business.
    North Dakota does have a very useful Public Death Index. It goes back to 1881. A search (I used "Smith" for the last 3 years) gives you results including name, date of death, county, genderm age, state and county of residence. But to obtain a certifed copy of the death certificate, you will need to provide proof of identity in the form of "a legible photocopy of a current driver's license or photo ID."
    _____
    * Re the 75-year Indiana limit, a reader who is a state government attorney has sent this: "Marcia. The 75-year period (re: Death Certificates) is probably from the Access to Public Records Act, IC 5-14-3-4(d), which reads:
    (d) Notwithstanding any other law, a public record that is classified as confidential, other than a record concerning an adoption, shall be made available for inspection and copying seventy-five (75) years after the creation of that record.

    Posted by Marcia Oddi on Wednesday, March 18, 2009
    Posted to General Law Related | Indiana Law

    Courts - "Proposal would open Kentucky judicial branch's records"

    Andrew Wolfson reports today in the Louisville Courier Journal:

    Want to know how much the Kentucky Bar Association paid an outside lawyer last year to investigate its president?

    Don't bother asking bar officials. They're not telling.

    Curious about what Jefferson County circuit judges are discussing at their monthly meetings?

    Don't bother asking the judges for their minutes. They don't have to give them to you.

    The reason is that for more than 30 years, the state Supreme Court has maintained that the Kentucky Open Records Act doesn't apply to judicial branch agencies, such as the state bar association.

    But that's about to change.

    Following the lead of high courts in many other states, John Minton Jr., chief justice of Kentucky, is expected to propose new open-records rules for the judiciary later this year. * * *

    The new rules wouldn't apply to court records, which are already open, or change the confidentiality rules in the disciplinary process for lawyers and judges.

    But they may open administrative records of Supreme Court agencies, which include the KBA, the Board of Bar Examiners and the Judicial Conduct Commission.

    It's a long overdue change, said John Nelson, executive editor of the Danville Advocate and a former president of the Kentucky Press Association. * * *

    Since the Kentucky Supreme Court ruled in 1978 that court records "are inseparable from the judicial function itself, and are not subject to statutory regulation," the Administrative Office of the Court and some other agencies have released certain records voluntarily.

    But there are no rules requiring their release or governing how long they may wait to reply.

    The open-records act requires that executive and legislative agencies respond to requests within three days.

    Nelson said excluding judicial records from the sunshine law never made sense: "I have never heard of a justification, if there is one."

    Posted by Marcia Oddi on Wednesday, March 18, 2009
    Posted to Courts in general

    Ind. Courts - "Is Bankruptcy the Answer? – Part 1"

    This story by Sarah Platt appears on the WNDU South Bend website. A quote:

    Compared to the other 50 states, Indiana and Michigan rank among the states with the highest number of bankruptcies. Tennessee tops the list for most bankruptcies in 2008. Indiana is in fifth, Michigan ranks six, and Kentucky is at seven. And at the other end, Wyoming comes in at number 50.

    Joe Bradley knows Indiana's numbers all too well. He's a Chapter 7 Trustee for the U.S. Bankruptcy Court in South Bend. Bradley works with debtors to recover assets to the benefit of creditors.

    “The vast majority of them would like to be anywhere else other than the bankruptcy court, they consider it, most of them consider it, not a financial failure, but a personal failure, some consider it a moral failure,” says Bradley. “This is a difficult decision for nearly everyone who goes through it.”

    Posted by Marcia Oddi on Wednesday, March 18, 2009
    Posted to Indiana Courts

    Ind. Courts - "Justice Department Settles Allegations of Disability Discrimination Against Town of St. John, Indiana"

    The U.S. Department of Justice has issued this press release:

    WASHINGTON, March 17 /PRNewswire-USNewswire/ -- The Justice Department today announced a settlement resolving allegations that the town of St. John, Ind., violated the Fair Housing Act when it denied a petition for a zoning variance based on the disability of a prospective resident.

    In a lawsuit filed in September 2007, the U.S. government charged that the town of St. John intentionally discriminated against persons with disabilities when it refused to provide a St. John resident a variance to allow one unrelated individual with multiple sclerosis to live with the resident in his home. The complaint also alleged that the requested variance was reasonable and necessary to afford prospective residents with disabilities an equal opportunity to use and enjoy a dwelling in a residential neighborhood in St. John. Under the town's zoning regulations at that time, unrelated persons could not live together in a dwelling in a single-family district. After the town denied the variance, the resident filed a complaint with the U.S. Department of Housing and Urban Development (HUD), which referred the matter to the Department of Justice.

    "Local governments have the right to enforce their zoning laws, but they cannot allow their zoning decisions to be influenced by discriminatory bias," said Loretta King, Acting Assistant Attorney General for the Civil Rights Division. "The Department will continue to vigorously enforce the rights of persons with disabilities to live in homes of their choice."

    "The path to diverse, inclusive communities begins with zoning," said Bryan Greene, General Deputy Assistant Secretary for Fair Housing and Equal Opportunity. "HUD works in partnership with the Department of Justice to respond to local government decisions that can sometimes exclude whole classes of persons from communities."

    The settlement, which must still be approved by the court, requires the town to grant the requested variance, provide training on fair housing laws to town officials involved in making zoning and land-use decisions and provide periodic reports to the Justice Department. The town will also pay a $10,000 civil penalty to the United States.

    The ILB mentioned this lawsuit before, in this Oct. 26, 2007 entry, in relation to the issue of local ordinances in Indiana limiting the number of unrelated people who may live together. See also this entry from Oct. 4, 2008. Unfortunately, the table linked to, which surveyed college towns, appears no longer to be available.

    Posted by Marcia Oddi on Wednesday, March 18, 2009
    Posted to Indiana Courts

    Tuesday, March 17, 2009

    Ind. Courts - Here is a list of opinions by Judge David Hamilton

    Here is a list of opinions by SD Ind. Judge David Hamilton cited in ILB entries. Most of them involve cases decided by Hamilton and appealed to the 7th Circuit.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Ind. (7th Cir.) Decisions

    Courts - Federal Judge awards attorneys fees in Kentucky ten commandments case

    From the AP, a story in the Lexington Herald-Leader that begins:

    A federal judge has ordered a pair of southern Kentucky counties to pay $393,798 in attorneys fees stemming from their defense of posting the Ten Commandments in courthouses.

    The Lexington Herald-Leader reported that U.S. District Judge Jennifer B. Coffman ruled that Pulaski and McCreary counties must pay the funds to two attorneys from the American Civil Liberties Union of Kentucky.

    The ACLU of Kentucky successfully challenged the displays in federal court in a legal battle that started a decade ago. But the attorney for the counties, two of the poorest in Kentucky, says they don't have to pay yet because parts of the case remain unsettled on appeal.

    Mathew Staver, who represents both counties, said insurance companies may cover the legal bill if the counties ultimately have to pay.

    Staver, founder and chairman of the Christian legal group Liberty Counsel, said if the counties win the case on appeal, they wouldn't have to pay the ACLU.

    McCreary County Judge-Executive Blaine Phillips said he doesn't think the county's insurance policy would cover its share of the payment.

    Phillips said McCreary County might seek donations if it has to split the cost of the Ten Commandments fight with Pulaski County.

    "That'll be a hard pill to swallow" if the county has to pay the judgment, Phillips said.

    The counties disputed the fee request, calling it unreasonable and claiming the attorneys spent too much time on tasks like legal research and sought fees that were too high.

    Coffman noted that the case consumed 1,300 work hours over 10 years by lead ACLU attorney David A. Friedman, with assistance from William E. Sharp.

    Coffman also noted that the counties' own actions ran up the legal bill in the case.

    The counties took the case to the U.S. Supreme Court in 2005, rather than settling, and lost.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Courts in general

    Courts - "Mistrial by iPhone: Juries’ Web Research Upends Trials"

    This ILB entry from March 14th was headed "Appeal says juror sent 'tweets' during $12.6M case ". This one from March 6th quoted a Washington Post story about reporters being allowed to use Twitter in the courtroom:

    A couple of lawyers voiced concern about the possibility that a juror might visit the online site to read the posts from Ron Sylvester, a reporter for the Wichita Eagle, but U.S. District Judge J. Thomas Marten said jurors are always told to avoid newspaper, broadcast and online reports. "You either trust your jurors to live with the admonishment, or you don't," he said.
    Today John Schwartz of the NY Times reports in a lengthy story:
    Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

    Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

    “We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.

    It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

    Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

    And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.” * * *

    Information flowing out of the jury box can be nearly as much trouble as the information flowing in; jurors accustomed to posting regular updates on their day-to-day experiences and thoughts can find themselves on a collision course with the law. * * *

    But juror research is a more troublesome issue than sending Twitter messages or blogging, Mr. Keene said, and raises new issues for judges in giving instructions.

    “It’s important that they don’t know what’s excluded, and it’s important that they don’t know why it’s excluded,” [Douglas L. Keene, president of the American Society of Trial Consultants.] said. The court cannot even give a full explanation to jurors about research — say, to tell them what not to look for — and so instructions are usually delivered as blanket admonitions, he said.

    The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, noting that “it’s up to juror 11 to make sure juror 12 stays in line.”

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Courts in general

    Ind. Decisions - Two Indiana decisions today from the 7th Circuit

    In US v. Devon Groves (ND Ind., CJ Miller), a 12-page opinion, Judge Sykes writes:

    On appeal, Groves renews his challenge to the admission of the gun. We reject his arguments and affirm. Although an anonymous tip is generally insufficient to support an investigative stop, Florida v. J.L., 529 U.S. 266 (2000), there was more supporting this stop than just an anonymous tip. Under United States v. Hensley, 469 U.S. 221 (1985), police may conduct an investigative stop of a suspect based on a “wanted flyer” or “bulletin” like the one at issue in this case. The bulletin issued for Groves was supported by ample reasonable suspicion that he was involved in the earlier shooting, and this in turn was sufficient to justify the stop. A complication is that the dispatcher told responding officers there was a warrant for Groves’s arrest, not just a pickup “bulletin.” But this mistake did not undermine the preexisting reasonable suspicion for the stop. Moreover, to the extent that the error had any effect on the validity of the stop, suppression was not required. The Supreme Court has just held that a negligent mistake by police personnel regarding the existence of a warrant does not require application of the exclusionary rule. Herring v. United States, 129 S. Ct. 695 (2009).
    In Carolina Casualty v. Estate of Dimitry Karpov (ND Ind., Judge Springmann), a 9-page opinion, Judge Marion writes:
    Carolina Casualty sought a declaratory judgment that its liability was limited to the $1 million per-accident limit set forth in the insurance policy it issued to Net Trucking, Inc. and Stanislaw Gill. The defendants, who were among several of the victims in a tractor-trailer/automobile accident, argued that the Motor Carrier Act (“MCA”) and an endorsement Carolina Casualty issued verifying compliance with the MCA established coverage at $750,000 per person. The district court rejected this argument, holding that the policy limited liability to $1,000,000 per accident. The district court granted Carolina Casualty summary judgment and we affirm.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

    For publication opinions today (6):

    In Judy Whitaker and John Davis v. Town of Cloverdale Town Council, a 6-page opinion in an Open Door Law case, Judge Brown writes:

    We cannot say that the March 20, 2007 order of dismissal clearly enjoins the Town Council from violating the Open Door Law or supports a finding of contempt in this case. Accordingly, the trial court did not abuse its discretion when it denied the Appellants’ second verified petition for contempt.
    In Sirajuddin S. Khaja v. Farzana Khan , a 21-page opinion, Jude Crone concludes:
    In sum, we affirm (1) the trial court’s findings as to Father’s child support arrearage and contempt, (2) the trial court’s finding as to educational expenses, and (3) the award of attorney’s fees to Mother. We reverse the denial of Father’s petition to modify and the finding that Father owes Mother $2,448.00 for M.K.’s Lasik eye surgery and remand for application of Indiana law to the modification of child support and for the judgment to be reduced to $320,007.52. If findings regarding modification of child support require any additional adjustment in the amount Father owes Mother, the judgment will be accordingly adjusted.
    In Donald L. and Nancy V. Shaum v. Roy McClure, JP Morgan Chase Bank, et al. , an 8-page opinion, Judge Brown writes:
    Donald L. Shaum and Nancy V. Shaum appeal the trial court’s grant of summary judgment to Progressive Engineering, Inc., and Dennis Gobble. The Shaums raise seven issues, which we consolidate and restate as whether the trial court erred by granting summary judgment and determining that the Shaums’ claim against Progressive and Gobble was filed outside of the statute of limitations. We affirm. * * *

    “Under Indiana’s discovery rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in exercise of ordinary diligence should have known of the injury.” Pflanz v. Foster, 888 N.E.2d 756, 759 (Ind. 2008). “For an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred.” Cooper Industries, LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind. 2009). Here, the Shaums designated evidence that McClure constructed the house on the disputed real estate in 1997. The Shaums’ action against Progressive Engineering and Gobble was not filed until July 2007. We conclude that, in the exercise of ordinary diligence, the Shaums should have known of the land dispute and discovered the survey error in 1997 when McClure constructed his residence on the disputed property. Consequently, even if the six-year statute of limitations applied, the Shaums’ 2007 action against Progressive Engineering and Gobble was untimely. See, e.g., Estate of Verdak v. Butler University, 856 N.E.2d 126, 133-134 (Ind. Ct. App. 2006) (holding that an estate’s September 2004 complaint was barred by the statute of limitations because the decedent knew, or in the exercise of ordinary diligence, could have discovered the University’s claim in June 1978). The trial court did not err by granting summary judgment to Progressive Engineering and Gobble.

    In William H. Rogers v. State of Indiana , an 11-page opinion dealing with evidence admission, Judge Darden writes:
    That same evening, Shance Sizemore, a CVS supervisor, reviewed the store's surveillance footage and copied it to a compact disc, which he gave to the Vanderburgh County Prosecutor's Office. Steve Dunmire, a criminal investigator with the Vanderburgh County Prosecutor's Office, then copied that disc to another, “cut[ting] out the parts where there was nothing relevant” and also created four photographs from the second disc. * * *

    The trial court conducted a jury trial on June 17, 2008. Over Rogers' objection the trial court admitted into evidence the disc created by Sizemore; the disc created by the prosecutor's office; and the four photographs made from the second disc. * * *

    Rogers argues that the State failed to lay a proper foundation for the admission of the disc because Sizemore “admitted he left out portions of the hard drive for the relevant time period and that he never checked the CD against the hard drive.” * * *

    Generally, photographs and videotapes are treated as demonstrative evidence. “As such, a photograph is not evidence in itself, but is used merely as a nonverbal method of expressing a witness' testimony and is admissible only when a witness can testify it is a true and accurate representation of a scene personally viewed by that witness.” Id. at 1015. Where, however, the photographic evidence must speak for itself, such as in this case, it may be admitted under the “silent witness” theory. * * *

    Here, the discs and photographs introduced into evidence were merely duplicates of the original recording. See Evid. R. 1001(4) (“A duplicate" is a counterpart produced by the same impression as the original . . . or by means of photography, . . . or by mechanical or electronic rerecordings, . . . or video tape or by other equivalent techniques which accurately reproduces the original.”). Although the discs and photographs were redacted versions of the original, there is no evidence that they were altered or changed. See Bergner, 397 N.E.2d at 1017 (finding it “necessary to avoid the dangers of misrepresentation or manufactured evidence which are possible through composite or retouched photographs”). In fact, Sizemore testified that the discs and photographs derived from the discs accurately reflected the original recording. Finally, Sizemore testified extensively regarding CVS's security system and the procedure he used to view, copy, and edit the footage.

    We find that the discs and photographs admitted into evidence conformed to the requirements under the “silent witness” theory. We therefore find no abuse of discretion in admitting the evidence.

    In Kenneth E. Smith, Jr., Cathy Smith and Jeffery Harbrecht v. Gerhard and Christine King , a 13-page opinion, Judge Brown writes:
    A. Duty as Property Owners. The trial court concluded that the Kings, in their capacity as landowners, had no duty to Kenneth. * * *

    Similarly, here, the danger of the hole was known and obvious to Kenneth, and the evidence does not support a reasonable inference that the Kings should have anticipated that Kenneth would fall through the hole while measuring over his head for the heating and cooling system. Consequently, we conclude that the trial court did not err by granting the Kings’ motion for summary judgment on this issue.

    B. Duty as General Contractor. Citing Stumpf v. Hagerman Construction Corp., 863 N.E.2d 871 (Ind. Ct. App. 2007), trans. denied, the trial court held that Gerhard, in his role as general contractor, “did not have a duty to assure Smith a safe workplace.” * * *

    Our review of the record reveals that the Smiths and Harbrecht did not argue to the trial court that the Kings were liable based upon Gerhard’s own negligence as a general contractor. Consequently, the argument is waived.

    C. Assumption of a Duty by Conduct. A duty of care may arise where a party gratuitously or voluntarily assumes a duty by conduct. * * *

    Here, because Harbrecht had not yet completed the stairs from the residence’s first floor to the basement, leaving an open hole in the floor, Gerhard King nailed a plywood sheet against the opening. As in Robinson, this one instance of a safety precaution taken by the Kings does not raise a jury question as to whether a duty was assumed. Under these circumstances, we conclude that the trial court did not err by granting summary judgment on this basis.

    For the foregoing reasons, we affirm the trial court’s grant of summary judgment to the Kings.

    Dennis Fornelli v. City of Knox, Indiana - "The Board‟s findings are supported by substantial evidence and its decision to terminate Fornelli was not arbitrary and capricious. Moreover, Fornelli did not present any evidence which would support his claim that he was denied due process during the termination hearing. Accordingly, we conclude that the trial court properly granted the Board‟s motion for summary judgment. "

    NFP civil opinions today (3):

    Alison E. Clapp O'callaghan, et al. v. Guardianship of Thora M. Moulton (NFP)

    Julie Collins v. Theodore P. Collins (NFP)

    In the Matter of J.F. and D.F. (NFP)

    NFP criminal opinions today (7):

    Tony Lee Modesitt v. State of Indiana (NFP)

    Robert L. Gunnell v. State of Indiana (NFP)

    Douglas A. Inman v. State of Indiana (NFP)

    Bobby R. Kyles v. State of Indiana (NFP)

    Eric Green v. State of Indiana (NFP)

    Edward A. Hobson v. State of Indiana (NFP)

    Terry Smith v. State of Indiana (NFP)

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Courts - "McKinney won't have to repay DTF money"

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

    MUNCIE -- Delaware County Prosecutor Mark McKinney will not have to repay any money he seized on behalf of the Muncie-Delaware County Drug Task Force, a second judge has ruled.

    Delaware Circuit Court 4 Judge John Feick vacated a court order last week requiring McKinney and the Industrial Centre Federal Credit Union to repay more than $50,000 seized from Adrian Kirtz and his girlfriend, Lacie Williams, that had been frozen by the court after their arrests.

    During a court hearing in January, Feick admonished McKinney, who is facing a disciplinary probe and a criminal investigation over drug forfeitures, for violating court orders and state law.

    The court had ruled the prosecutor violated the freeze order on the credit union accounts by arranging money withdrawn and divided between Kirtz's attorney, Jake Dunnuck, who received $26,838, and the DTF, which received $25,212.

    Citing a recent order by Delaware Circuit Court 2 Judge Richard Dailey, who rescinded orders requiring McKinney and a deputy prosecutor to repay attorney fees and forfeiture assets, Feick said both cases were intertwined and he was satisfied that other parties would ultimately decide whether drug forfeitures violated the law.

    "It will be up to other parties to decide this," the judge said, referring to the Indiana Supreme Court's disciplinary commission and special prosecutor.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Indiana Courts

    Ind. Courts - More on: David F. Hamilton said to be selection of President Obama for 7th Circuit [Updated]

    Updating this ILB entry from earlier this morning, it is no longer "said to be." Here is the official White House press release:

    WASHINGTON, DC – Today, President Barack Obama announced his intent to nominate Judge David Hamilton to the United States 7th Circuit Court of Appeals. Hamilton has served for 14 years as a federal district judge in Indiana. He was appointed United States District Judge for the Southern District of Indiana in 1994 and was named Chief Judge in January of 2008.

    President Obama said, “Judge Hamilton has a long and impressive record of service and a history of handing down fair and judicious decisions. He will be a thoughtful and distinguished addition to the 7th circuit and I am extremely pleased to put him forward to serve the people of Illinois, Indiana and Wisconsin.”

    Hamilton previously was an associate and then partner at the Indianapolis firm of Barnes & Thornburg and served as Counsel to then-Governor Evan Bayh of Indiana. Hamilton served as a member of the Indiana State Recount Commission and as chairman of the Indiana State Ethics Committee.

    “I enthusiastically support the Senate confirmation of David Hamilton for U.S. 7th Circuit Court of Appeals. Judge Hamilton has served the Southern District of Indiana with distinction as U.S. District Court Judge,” U.S. Sen. Dick Lugar said.

    "I was proud to work side by side with Senator Lugar to recommend Judge Hamilton for this lifetime appointment,” said U.S. Senator Evan Bayh. “President Obama is right that Democrats and Republicans can work together to put highly qualified jurists on the federal bench. Judge Hamilton is an exceptional jurist who has demonstrated the highest ethical standards and a firm commitment to applying our country's laws fairly.”

    Hamilton is a graduate of Yale Law School and studied at the University of Tuebingen in Germany on a Fulbright scholarship. He is an emeritus member of the board of visitors of the Indiana University School of Law.

    [Updated at 11:56 AM] The Blog of Legal Times has just posted an entry giving some of the "reaction so far, " both the positive and the not so.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Indiana Courts

    Ind. Decisions - Supreme Court decides Ahmad Edwards v. State, on remand from SCOTUS

    Here is a quote from our Supreme Court's May 17, 2007 decision in Ahmad Edwards v. State:

    Here we have a determination by an experienced trial judge that Edwards was incapable of presenting a defense. That determination is necessarily based on factors better evaluated by, as Justice Breyer put it, “judges closer to the firing line.” Martinez, 528 U.S. at 164. We have sympathy for the view that a trial court should be afforded some discretion to make that call. The record in this case presents a substantial basis to agree with the trial court and thus presents an opportunity to revisit the holdings of Faretta and Godinez, if the Supreme Court of the United States decides that is to be done. However, as it stands today, we are bound by these authorities as Supreme Court precedent. Accordingly, we hold that because Edwards was found competent to stand trial he had a constitutional right to proceed pro se and it was reversible error to deny him that right on the ground that he was incapable of presenting his defense.
    The case went to the Supreme Court of the United States. The Court issued its decision June 19, 2008. Here, from the end of the majority SCOTUS opinion in Indiana v. Edwards:
    We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

    Indiana has also asked us to adopt, as a measure of a defendant’s ability to conduct a trial, a more specific standard that would “deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury.” We are sufficiently uncertain, however, as to how that particular standard would work in practice to refrain from endorsing it as a federal constitutional standard here. We need not now, and we do not, adopt it.

    Indiana has also asked us to overrule Faretta. We decline to do so. * * *

    For these reasons, the judgment of the Supreme Court of Indiana is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

    Here are some ILB entries from June 19, 2008 (one and two) and the 20th. Here are earlier ILB entries, leading up to the SCOTUS decision.

    In Ahmad Edwards v. State, On Remand from the Supreme Court of the United States , a 10-page, 5-0 opinion issued today, Justice Boehm writes:

    We hold that the record supports a finding by the trial court that the defendant suffered from a severe mental illness to the point where he was not competent to conduct trial proceedings by himself. The denial of the defendant’s request to act pro se at trial therefore did not violate either his federal or state constitutional right to self-representation. * * *

    I. The Sixth Amendment Claim. We understand Edwards to announce the following rule of law: a trial court may deny a defendant’s request to act pro se when the defendant is mentally competent to stand trial but suffers from severe mental illness to the point where he is not competent to conduct trial proceedings by himself. In this case, Edwards was found mentally competent to stand trial, but the trial court denied his request to proceed pro se. The questions we face on remand, therefore, are whether the trial court found that Edwards suffered from a severe mental illness such that he was not competent to conduct trial proceedings on his own, and, if so, whether the record supports this finding. * * *

    Edwards’s psychiatric evaluations at times disagree, but they overwhelmingly confirm that Edwards has suffered from severe and pervasive mental illness. And though the trial court did not rely on any psychiatric evaluations completed after July of 2004, the trial judge had the opportunity to observe Edwards at his July trial. The trial court also had the lengthy record of Edwards’s mental disorders and the discordant motions that Edwards submitted, some immediately preceding his retrial. Finally, the trial court had before it the record of erratic performance that gave no confidence that whatever Edwards’s state as of a given moment, it might be a transient condition. Taken together, these circumstances support the trial court’s determination that Edwards suffered from severe mental illness such that he was not competent to represent himself. We therefore affirm the judgment of the trial court.

    II. The Indiana Constitutional Claim.
    Edwards urges us to find broader self-representation rights under the Indiana Constitution than those afforded by the federal constitution. Edwards contends that there is a "firmer foundation" for the right of self-representation under article I, section 13 which guarantees an accused the right "to be heard by himself and by counsel." * * *

    We think that the right to self-representation of mentally impaired persons under section 13 is no broader than that guaranteed by the Sixth Amendment as interpreted in Edwards. * * *

    Conclusion. The trial court’s denial of Edwards’s request to proceed pro se was justified by the record and did not violate Edwards’s right to self-representation under either the Sixth Amendment or article I, section 13. Edwards’s convictions of attempted murder and battery are affirmed.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Courts - More on: Settlement avoids judicial mandate action in Hammond

    Updating this ILB entry from Feb. 26th, Susan Brown reports today in the NWI Times:

    HAMMOND | Money didn't provoke the testy legal confrontation between the court and the City Council, City Judge Jeffrey Harkin said Monday. It was the failure to communicate.

    "Cutting the budget was never the issue," Harkin said.

    Harkin filed his suit last October after the council had cut the court's budget over and above Harkin's own 5 percent reduction for a total of more than 10 percent. He learned of the budget cut just hours before the council adopted its budget; the council subsequently refused to meet with the judge over the issues.

    Fifth District Councilman Dan Repay, then council president, said it wasn't a matter of not talking so much as timing. "The lawsuit was filed before we could meet," Repay said.

    Attorneys may prove the only real winners in the standoff.

    Court documents show the court's final budget coming in at $706,630, even lower than the $728,480 to which the City Council had slashed the court's budget, setting off Harkin's lawsuit.

    Already the city has received a nearly $6,100 billing from Harkin's attorney, David Weigle of Hammond. The council was represented by the council's longtime attorney, Robert Berger, who this year became contracted by the hour. In addition, the city administration intervened in the case to protect its own interest, hiring the law firm of Eichhorn & Eichhorn.

    Settlement negotiations concluded with the judge and the council agreeing to eliminate the jobs of a bailiff and a probation officer. The number of court referees was restored to two though at reduced salaries. The two public defenders will have their salaries reduced to $14,500 each but will retain their health insurance.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Indiana Courts

    Ind. Courts - Even more on: Training on new loan modification programs

    Updating this ILB entry from March 13th, which set forth the known dates of upcoming foreclosure seminars, tomorrow evening's session in Griffith is the focus of a story today by Bill Dolan of the NWI Times. Some quotes:

    GRIFFITH | In many cases, divorcing couples no longer have to fight over who gets the house -- the sheriff does.

    The number of Lake County residents losing their homes to foreclosure accelerated by 40 percent during 2008, Lake County Sheriff Rogelio "Roy" Dominguez said.

    In many cases, foreclosures make divorce and child support cases more difficult, Highland lawyer Debra Dubovich said.

    She said the Indiana Supreme Court is so concerned about the rising tide of home foreclosures it is offering incentives to lawyers who agree to learn more about the foreclosure process and provide free legal advice to families falling victim to the process.

    "I don't know that foreclosures cause the breakup of families, but it does add a lot of stress and will be a contributing factor," Dubovich said.

    The high court is encouraging lawyers to attend a seminar at 5:30 p.m. Wednesday at Jedi's Garden restaurant, 444 W. Ridge Road, Griffith, to discuss how the current economic recession is complicating marriage dissolution and child support cases.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Indiana Courts

    Environment - "Stimulus Money Puts Clean Coal Projects on a Faster Track"

    That is the headline to this story by Matthew L. Wald of the NY Times, dateline Edwardsport, Indiana. Some quotes from the lengthy story:

    Near the middle of a dusty construction site here stands a patch of land, about the size of two football fields, notable because it is empty.

    Duke Energy has high hopes for this two-acre plot: If all goes right, and there is a happy convergence of technology, money and federal energy policy, the construction project could become the first environment-friendly coal-fired power plant in the nation.

    The company is studying a method for capturing the carbon dioxide produced by using coal and storing the gas underground, preventing it from entering the atmosphere. Machines to separate carbon dioxide from other elements in the coal may someday stand on the empty land.

    For years, scientists have been experimenting with ways to “clean” coal, a carbon-heavy fuel that countries around the world increasingly rely on. But the technology for carbon capture and storage has been tried only on a small scale. Governments have not required companies to do what Duke is proposing here, in part because costs were so uncertain.

    The allocation of $3.4 billion in the federal stimulus bill for carbon capture and sequestration, as carbon storage is often called, however, has allowed Duke Energy and other companies to consider mounting full-scale projects.

    The federal money is the latest sign of a growing interest worldwide in clean coal technologies, which backers believe could prove one of the most significant ways to tackle global warming. The projects are being watched closely by environmentalists, engineers and energy officials.

    The Duke effort, said John Thompson, a coal expert at an environmental group, the Clean Air Task Force, “may be the first commercial carbon sequestration site in the United States.”

    If Duke is successful, the plant could be capturing about 18 percent of its carbon dioxide emissions within four or five years, and an additional 40 percent a few years after that. Carbon dioxide is the main heat-trapping gas linked to global warming.

    Duke already received some money under the Energy Policy Act of 2005 to build a $2.35 billion coal-burning power plant, the largest new construction project in Indiana. The site here is already crawling with workmen and heavy machinery.

    The new plant will differ from conventional coal plants in significant ways, cooking the coal into a fuel gas rather than burning it as a powder, and then thoroughly cleaning the gas and burning it in a jet engine, similar to that used to burn natural gas. Emissions of conventional pollutants, like sulfur, soot and smog-forming nitrogen, will be extremely low.

    Two other such “gasification” plants already operate, in Florida and Indiana. Duke’s first addition would be to use a machine to strip the carbon dioxide out of the fuel gas.

    From near the end of the story:
    Some environmentalists oppose carbon capture from coal under any circumstances. Greenpeace argues that the energy required to capture the carbon, pressurize it and pump it underground is too large and the risks of underground storage too high. The effort, the group says, would divert money from more promising alternatives. Others argue that making coal safe to burn would simply encourage damaging mining, like mountaintop removal.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Environment

    Law - Chicago sees more money to be made from red-light cameras

    The ILB's most recent entry on red light cameras (SB 389) was March 14th, quoting a story from Iowa headed "Red-light cameras light up cash registers: Operators of red-light cameras collect lots of money in fines; It's unclear if streets are safer."

    Today, WGN Chicago has a story about Chicago considering using the cameras to nab insurance scofflaws. Some quotes:

    In Chicago, blowing a stop light might get you a letter, complete with a $100 fine, thanks to a red-light camera.

    But that might not be the end of your photo-enforcement woes. Aldermen today began discussing using the city's ever-growing legion of red-light cameras to check for vehicle liability insurance.

    The city could net nearly $10 million in fines just by citing non-insured vehicles that also get photo-ticketed for a red-light violation, said Ald. Ed Burke (14th), who brought the idea to the City Council Traffic Committee.

    Using them on a more extensive basis could net the city more than $100 million a year, added Rowland Day, executive vice president of InsureNet, a Michigan-based company that provides instant insurance verification--and wants to help the city set up the insurance verification and citation system.

    Although no state or municipality uses photo-enforcement for insurance scofflaws, Day said it's only a matter of time. "We are going to have three or four states signed in the next 90 days," he said.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to General Law Related

    Ind. Courts - David F. Hamilton said to be selection of President Obama for 7th Circuit

    Neil A. Lewis reports today in the NY Times:

    WASHINGTON — President Obama is expected to name his first candidate to an appeals court seat this week, officials said, choosing David F. Hamilton, a highly regarded federal trial court judge from Indiana, for the appeals court in Chicago.

    Judge Hamilton, who is said by lawyers to represent some of his state’s traditionally moderate strain, served as counsel to Senator Evan Bayh when Mr. Bayh was the state’s governor; he is also a nephew of former Representative Lee H. Hamilton of Indiana.

    A senior administration official said Judge Hamilton would have the support of both Mr. Bayh, a Democrat, and the state’s other senator, Richard G. Lugar, a Republican. He will be nominated for a seat on the United States Court of Appeals for the Seventh Circuit, based in Chicago.

    The administration official said part of the reason for making the Hamilton nomination the administration’s first public entry into the often contentious field of judicial selection was to serve “as a kind of signal” about the kind of nominees Mr. Obama will select. The official spoke on the condition of anonymity because the nomination had not been officially made. * * *

    Judge Hamilton was named to the bench by President Bill Clinton in 1994. As a trial judge largely bound to the rulings of higher courts, he has had few opportunities to demonstrate any ideological leanings.

    He did receive attention for two rulings striking down actions of conservatives in the Indiana legislature. In 2005, he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers.

    The decision drew widespread criticism in the legislature and across the state. On appeal, a panel of the Seventh Circuit dismissed the ruling, saying the people in whose name the American Civil Liberties Union had brought the suit lacked standing because they had not been harmed by the prayers.

    In 2008, Judge Hamilton struck down as unconstitutional an amendment to the state law requiring convicted sex offenders to provide the authorities with personal information, including any e-mail addresses or user names. The amendment would also have required the offenders to agree to allow their home computers to be searched at any time and to pay for a program to allow monitoring of their Internet use.

    The judge said the amendment cut into the heart of a person’s right to privacy in his home.

    “The ability of the individual to retreat into his home and therefore to be free from unreasonable intrusion by the government stands at the very core” of constitutional protections against unreasonable searches, he said.

    Posted by Marcia Oddi on Tuesday, March 17, 2009
    Posted to Indiana Courts

    Monday, March 16, 2009

    Ind. Courts - DOJ Files Lawsuit Against Indianapolis Law Firm to Enforce the Employment Rights of Indiana Army National Guardsman [Updated]

    A press release today from the U.S. Department of Justice:

    WASHINGTON, March 16 /PRNewswire-USNewswire/ -- The Department of Justice today filed a lawsuit in U.S. District Court in Indianapolis on behalf of Mathew B. Jeffries, an Indiana National Guard member, against the Indianapolis law firm of Mike Norris & Associates, alleging that the law firm refused to promptly reemploy Jeffries in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

    Subject to certain limitations, USERRA requires that individuals who leave their jobs to serve in the U.S. military be timely reemployed by their civilian employers in the same position, or in a comparable position to the position that they would have held had they not left to serve in the military.

    In February 2003, Jeffries, a staff attorney with Mike Norris & Associates, was called to active duty and deployed to serve in Operation Enduring Freedom in Iraq. Upon his completion of active duty in April 2004, Jeffries contacted Mike Norris & Associates to seek reemployment. The firm refused to reemploy him, so Jeffries filed a complaint with the Department of Labor's Veterans' Employment and Training Service (VETS). VETS investigated the matter, determined that Jeffries' claim had merit and, upon completion of conciliation efforts, referred the matter to the Department of Justice.

    "The Uniformed Services Employment and Reemployment Rights Act protects men and women from being disadvantaged in their civilian careers because of their service in the armed forces," said Loretta King, Acting Assistant Attorney General for the Civil Rights Division. "The Civil Rights Division is committed to vigorously enforcing federal laws that protect the employment rights of men and women who are serving in the military."

    The Civil Rights Division of the Department of Justice has given a high priority to the enforcement of service members' rights under USERRA.

    [Updated 3/17/09] Jon Murray has this story this morning on the front-page of the Indianapolis Star. Some quotes:
    In most cases, citizen soldiers have their jobs protected under U.S. law. But the rare lawsuit, filed Monday by the Department of Justice, says Mathew B. Jeffries' law firm refused to re-employ the bankruptcy attorney upon his return in 2004 after more than a year on active duty, mostly in Iraq.

    Filed in U.S. District Court in Indianapolis, the suit targets Mike Norris & Associates, where Jeffries had worked until his activation in February 2003. Mike Norris declined to comment. * * *

    The Justice Department gets involved only after other efforts, including complaints through the U.S. Department of Labor, have failed. Nationwide, the agency has filed six other lawsuits under the law this year.

    Jeffries, who now practices law in Evansville, could not be reached for comment Monday.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Indiana Courts

    Environment - More on: State legislation re the financing of a coal-to-gas plant near Rockport close to passage

    Updating this ILB entry from March 13th, Eric Bradner of the Evansville Courier & Press is reporting this afternoon:

    The Indiana House this afternoon passed a bill that will have the Indiana Finance Authority act as a go-between, buying the $2 billion plant's pipeline-quality natural gas and selling it to Indiana utilities for the same price.

    The 90-8 vote was the final legislative obstacle for Senate Bill 423, which already passed the Senate and now heads to Gov. Mitch Daniels' desk.

    Daniels has strongly backed the plant developer Indiana Gasification LLC has planned near Rockport, Ind.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Environment

    Ind. Courts - "Hebron police getting high-tech cameras for cars"

    Phil Wieland reports today in the NWI Times:

    The department is getting cameras for each of its eight squad cars through a $50,000 federal grant obtained by Rep. Pete Visclosky, D-Ind. Police Chief Steve Sibbrell said the check hasn't arrived yet, but the department already is testing a model of the cameras he intends to buy.

    After examining at least 10 different makes of camera equipment, Sibbrell settled on Digital Ally, of Overland Park, Kan. It will cost $4,595 to equip each squad car, not including an installation fee, but Sibbrell said he thinks it will be well worth the investment. * * *

    One camera replaces the inside rear view mirror and allows the officer to film what's going on in the back seat and behind the squad. It acts just like a rear view mirror, but it also has a 3 1/2-inch square monitor, which can be turned off. A separate camera is mounted on the dashboard to record what's happening in front of the car.

    The action is recorded on a solid state digital card. If the officer turns on squad's flashing lights, the system automatically saves everything beginning from 30 seconds before the lights were turned on. If the officer is in an accident, the video record is preserved from 60 seconds prior to the impact.

    The camera and the officer both are equipped with wireless microphones, which also trigger the save mode when activated, and the officer can activate the recorder to save the information on his own.

    In the version to be bought when the grant arrives, the officer can pull up next to the station and automatically download all the recorded information through a wireless connection without ever leaving the car. It is downloaded to a computer, and only one person has access to it to prevent anyone from tampering with the information.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Indiana Courts

    Ind. Decisions - Court of Appeals issues 1 today (and 21 NFP)

    For publication opinions today (1):

    In Demetrick D. Shepherd v. State of Indiana, a 10-page opinion, Judge Kirsch writes:

    Demetrick D. Shepherd (“Shepherd”) appeals from his convictions after a jury trial of felony murder,2 rape as a Class B felony,3 and burglary as a Class B felony.4 Shepherd raises the following issues for our review: I. Whether the trial court committed reversible error by admitting evidence that Shepherd had made advances toward the victim and had taken a vehicle without permission the week before the murder, in violation of Indiana Evidence Rule 404(b); and II. Whether Shepherd’s ninety-year sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm. * * *

    Assuming, without deciding, that the challenged evidence was erroneously admitted under Evidence Rule 404(b), the admission of the evidence of Shepherd’s prior flirtations with the victim, no matter how vulgar, along with the evidence that Shepherd previously used Olvey’s car without her permission, was clearly harmless beyond a reasonable doubt. During his direct examination, Shepherd admitted raping fourteen-year-old C.P. He also admitted committing the burglary. In previous statements, Shepherd had admitted committing the burglary and C.P.’s murder. In light of the conduct that Shepherd admitted to, the evidence of his prior flirtation with C.P. and the evidence that he had previously taken Olvey’s car without permission has limited prejudicial effect The trial court did not commit reversible error by admitting this evidence.[5]
    ___________
    [5] We note that prior to our Supreme Court’s opinion in Swanson v. State, 666 N.E.2d 397 (Ind. 1996), this evidence would have come in under the doctrine of res gestae. Now, this evidence only comes in under an exception to Evidence Rule 404(b). We believe that evidence such as this illustrates the challenges presented by the elimination of the doctrine of res gestae. In the present case, the story of these crimes could not be properly told without this evidence.

    NFP civil opinions today (4):

    Rick Likes d/b/a Likes Logging and Adam Curey v. Jeffrey G. Shaner and Cathy Sutton (NFP) - "On the face of the record before us, we see nothing criminal about Likes or Curey’s actions. Cf. Breining v. Harkness, 872 N.E.2d 155 (control authorized where co-owner of checking account voluntarily transferred funds to defendant). Therefore, we reverse the judgment against Likes and Curey on Sutton’s counterclaim for conversion. Judgment reversed."

    David Snyder v. Julianne Mayfield (NFP) - "In spite of Snyder‟s claim that his only source of income is the potential lawsuit with Tiller, the trial court was within its discretion to discredit this testimony, especially given Snyder‟s ability to find large sums of money when necessary, which he was able to do even after the suspension of his real estate license and the confrontation with Tiller. We find no abuse of discretion."

    Edward C. Flick v. Susan C. Flick (NFP) "Appellant, Ed Flick, appeals from the trial court’s decree of dissolution of his marriage to Appellee, Susan Flick. Ed presents five issues for our review: * * * Susan cross-appeals, presenting one issue for our review: * * * We affirm in part, reverse in part, and remand."

    Scott A. Schwartz v. Indiana State Police (NFP) - "While there were inconsistencies in the testimony presented to the Board, it was the Board’s function and responsibility to weigh that evidence, judge the credibility of the witnesses, and render a decision. There was substantial evidence in the record to support the Board’s decision that Schwartz’s termination from his employment with ISP was proper. Affirmed. "

    NFP criminal opinions today (17):

    Scott Bryant v. State of Indiana (NFP)

    Ronald J. Doeing v. State of Indiana (NFP)

    Scherall Tinker v. State of Indiana (NFP)

    Scherall Tinker v. State of Indiana (NFP)

    Jerome Herbert v. State of Indiana (NFP)

    Edward L. Scott v. State of Indiana (NFP)

    Benjamin W. Brown v. State of Indiana (NFP)

    Charles Grove v. State of Indiana (NFP)

    Rodrico D. Malone v. State of Indiana (NFP)

    Richard A. Dobeski v. State of Indiana (NFP)

    Donte Gildon v. State of Indiana (NFP)

    Eberaia D. Fields v. State of Indiana (NFP)

    Shane N. Debrular v. State of Indiana (NFP)

    George Brown v. State of Indiana (NFP)

    Michael T. Parsons v. State of Indiana (NFP)

    Richard A. Dobeski v. State of Indiana (NFP)

    Kerry J. Smith v. State of Indiana (NFP)

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Law - "It's the Law: obstructing justice and interfering with police"

    Ken Kosky's NWI Times' "It's the Law" column for today, looks at obstructing justice and interfering with police. Some quotes:

    Police officers said it's common for people to do everything they can -- including lying, fighting and destroying evidence -- so that they or someone they know doesn't go to jail.

    Such actions usually backfire, police said.

    For example, last week, a woman who was being arrested on a misdemeanor drunken driving charge ended up having felony charges of theft and obstruction of justice added after police said she tried to tamper with evidence. Police said the woman's blood was drawn to be tested for alcohol, but she took and tried to hide the blood samples so that police could not use them as evidence against her.

    The obstruction of justice statute states it's a felony to alter, damage or remove something so it can't be used as evidence in an investigation or proceeding. The statute also states it is illegal to interfere with witnesses in an investigation or court proceeding, or to try to influence a juror.

    There are other Indiana laws that apply to people to try to hamper police work or court proceedings. For example, it is illegal to interfere with someone who is trying to report a crime; it is illegal to give a fake name or other false information during the investigation of a crime; and it is illegal to refuse to aid a police officer who orders assistance.

    It is also illegal to resist arrest or flee from police. And it is illegal under the disorderly conduct statute to fail to calm down for police during an investigation.

    And while people stopped for an infraction or ordinance violation are required to hand over a driver's license or give their name, date of birth and address, they do have the right to otherwise remain silent and not incriminate themselves.

    But the bottom line, police said, is that people who battle with police or the courts generally make matters worse for themselves.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Indiana Law

    Ind. Decisions - Transfer list for week ending March 13, 2009

    Here is the transfer list for the week ending March 13, 2009. It is 2 pages long.

    Transfer was granted, with opinion, last week in the case of Gary Becker v. Heather Becker - see ILB entry here from March 12th, under the heading "Supreme Court decides two today, extending Lambert."

    Transfer lists have new feature. Thanks to Clerk of the Courts Kevin Smith, beginning in March 2009, the weekly transfer lists have a new feature -- the "Denied/Granted" column includes the votes of the justices. This is a great addition.

    Search all the Transfer Lists: A new ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions.

    Over five 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, March 16, 2009
    Posted to Indiana Transfer Lists

    Law - "Another sign of tough times: legal aid for the middle class"

    This story in the March 10th LA Times, reported by Carol J. Williams , is subheaded "Among the resources available to the newly cash-strapped are online services, self-help centers and lawyers who offer group rates." The story begins:

    Richard Massey's suburban Anaheim home was valued at $700,000 two years ago when the bills for his cancer surgery came due and he had to tap the equity to pay them.

    The cosmetics company executive had lost his job and health insurance just before getting ill -- the start of a run of bad luck that accelerated with the real estate meltdown and has left the 50-year-old and his disabled wife facing eviction from their foreclosed home.

    Long comfortably ensconced in the proud community of the self-reliant, Massey was unaware that free or low-cost legal help is available for the mounting middle-class casualties of the recession.

    Had he known about the online guidance, legal self-help centers or community lawyers offering their services at group rates, he might have avoided being scammed by a fraudulent foreclosure rescue business that took his last borrowed money.

    As millions of Americans live through their own nightmare versions of "Trading Places," they are being confronted with legal problems compounding their fallen fortunes. An estimated 60% of Americans find themselves in the gap between those poor enough to qualify for publicly funded Legal Aid and those wealthy enough to afford an uptown lawyer.

    Fortunately for the newly downgraded, the access-to-justice movement has advanced in recent years from Skid Row to Main Street.

    At storefront law offices like Santa Monica's LegalGrind, a cafe-legal clearinghouse, those facing court dates to deal with divorce, custody matters, driving offenses and debt can find out for $45 how best to tackle their problems without plunking down a $5,000 retainer and $400 an hour for a lawyer.

    Bar associations in California and a dozen other states, meanwhile, have whittled away at the ethics rules and industry mind-set that used to discourage attorneys from taking clients on a "limited scope" basis. This involves representing them on specific aspects without taking responsibility -- and charging fees -- for the client's full range of legal problems.

    In every county of California, court documents and tutorials for completing them are available online. If citizens prepare their paperwork properly, overwhelmed judges can keep their daily crush of cases flowing more smoothly.

    Efforts to marry do-it-yourself legal software and free or low-cost guidebooks with just the right degree of paid counsel are being spearheaded nationwide by the American Bar Assn. and fitted to local needs by lawyers and professional groups stepping up to meet the exploding demand.

    "Most of the middle class is a paycheck away from going into the lower class. Nothing has highlighted that more than the current foreclosure crisis," said Luz Herrera, president of Community Lawyers Inc., a Compton start-up.

    Indiana Courts has the starts of a "self-service legal center." Access it here. Check the links in the left column.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to General Law Related

    Courts - More on: Seymour-based Rose Acre Farms takings judgment reversed by Court of Appeals for the Federal Circuit

    Updating this ILB entry from March 13th, Marcia Coyle writes today in The National Law Journal in an article that begins:

    A federal appellate court, in a closely watched "takings" case involving public health and safety regulations, held that the federal government did not have to compensate a major egg producer nearly $9 million for losses in connection with the government's effort to stop the spread of salmonella outbreaks almost two decades ago.

    The U.S. Court of Appeals for the Federal Circuit unanimously reversed a ruling by the U.S. Court of Federal Claims. The lower court had held two trials -- one on remand from the Federal Circuit -- and each time concluded there was a compensable takings.

    The claims court had found that a U.S. Department of Agriculture regulation, which restricted the interstate sale of a portion of the eggs produced at the three farms owned by Rose Acres because of a salmonella outbreak, caused a 219 diminution in profit on Rose Acre eggs during the restriction period -- equivalent to losing 100 percent of profits for 3 1/2 years.

    That ruling had worried consumer, public health and safety organizations, which said it raised "a disturbing possibility" that government officials, when considering how best to protect public health and safety, would have to take into account a possible takings claim every time they regulate to take unsafe products off the market.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Courts in general

    Ind. Courts - Several attorneys expected to apply for Madison County judgeship

    Shawn McGrath of the Anderson Herald Bulletin writes today in a story that begins:

    ANDERSON — The speculation has been rife.

    But while the deadline isn’t until Friday, several Madison County attorneys are expected to file an application with Gov. Mitch Daniels’ office to become the next judge of Madison Superior Court 4.

    The court’s bench was left vacant with the sudden death of well-liked and well-respected Judge David W. Hopper, 60, on Feb. 25 of a heart attack. Any replacement will be tasked with running Drug Court, the court’s alternative program for dealing with low-level drug offenders.

    Whomever Daniels, a Republican, chooses will likely be a member of the GOP. Hopper, also a Republican, won re-election in November, and his replacement will have the benefit of completing his six-year term before facing election.

    The possible candidates to replace Hopper range from a former Superior Court judge to former candidates for judicial office.

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Indiana Courts

    Ind. Law - "Lawyers step up to the bar for seniors"

    Rebecca S. Green of the Fort Wayne Journal Gazette has a long story today on the Volunteer Lawyer Program of Northeast Indiana:

    Michelle Wagner serves as the director of the Volunteer Advocates for Seniors and Incapacitated Adults, the idea of local attorney Steve Griebel and others on the Volunteer Lawyer Program's board of directors.* * *

    When the program began, those involved expected a few clients.

    But they underestimated how many people in northeast Indiana are in June's position.

    Within the first seven months of the program, from June 1 to Dec. 31, the agency took more than 100 referrals. The agency had anticipated maybe 25, said Judy Whitelock, executive director of the Volunteer Lawyer Program.

    For more than 20 years, Allen Superior Court Magistrate Phillip Houk has handled almost all of the guardianship cases in Allen County.

    "It shouldn't surprise us that people are taking advantage of the program," he said. "We knew there was a need out there, but we just didn't know how big a need."

    Houk knows all about the aging population, fractured families and a more mobile society.

    "You have fewer natural people to step into these situations for folks who need guardians," he said.

    The Volunteer Lawyer's advocacy program involves local attorneys working for free and well-trained volunteers matched with the clients.

    "I don't think there's any doubt that I sleep better at night knowing that we're appointing qualified individuals to take care of elderly individuals who heretofore had nobody," Houk said.

    He has seen similar programs pop up over the years, but almost all were funded by grant dollars for a limited period.

    One of the differences with the Volunteer Advocates program is the source of its funding, which is Indiana's Interest on Lawyers Trust Account program.

    Lawyers sometimes hold money for clients for distribution at a later date. In 1997, the Indiana Supreme Court allowed those accounts to begin bearing interest, with the interest sent to the Indiana Bar Foundation to fund pro bono legal services.

    That provides a constant stream of money, Houk said.

    "There's no grant that's going to run out after a few years," he said. "I have a good feeling about them to be able to sustain this program."

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Indiana Law

    Ind. Decisions - Upcoming oral arguments this week and next

    This week's oral arguments before the Supreme Court (week of 3/16/09):

    • None currently scheduled

    Next week's oral arguments before the Supreme Court (week of 3/23/09):

    • None currently scheduled

    This week's oral arguments before the Court of Appeals (week of 3/16/09):
    • None currently scheduled
    Next week's oral arguments before the Court of Appeals (week of 3/23/09):

    Next Tuesday, March 24th:

    • 10:00 AM - David L. Reynolds, II, v. State of Indiana - Attorney Gregory L. Caldwell is ordered to appear at a hearing to SHOW CAUSE why he should not be held in contempt of this court for his disregard of the orders of this court. The Scheduled Panel Members are: Judges Vaidik, Crone and Sr. Judge Sharpnack. [Where: Court of Appeals Courtroom]
    Next Wednesday, March 25th:
    • 1:00 PM - Joseph Jaskolski, et al vs. Rick and Anna Daniels - In this interlocutory appeal, Joseph Jaskolski and the National Insurance Crime Bureau (NICB) appeal from the trial court's order denying their petition for certification of Jaskolski's status as a federal employee. Jaskolski and NICB sought certification of that status from the United States Attorney General pursuant to the Westfall Act, 28 U.S.C. sec. 2679. The Attorney General denied their request, and they appealed to the United States District Court for the Northern District of Indiana. That court affirmed the Attorney General's decision and remanded the case to the Lake Superior Court for further proceedings. Jaskolski and NICB renewed their request for certification in state court, the trial court denied it, and this appeal ensued. In response to the position of Jaskolski and the NICB, the Danielses argue, among other things, that this appeal is not properly before this Court. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]

    • 2:30 PM - Gregory S. Brown [sic] - In this interlocutory appeal, Gregory S. Brown appeals the order denying his motion to suppress evidence obtained upon execution of a search warrant at his home. Brown argues that the warrant was based on information from a "concerned citizen" whose credibility was not established at the probable cause hearing and, therefore, the court lacked probable cause for the warrant. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]

    Next Thursday, March 26th:

    • 10:00 AM - Brian Montgomery vs. State of Indiana - Brian Montgomery appeals his conviction of dealing in cocaine, a Class A felony, contending that the trial court erred in admitting evidence obtained by police during a warrantless search of his hotel room. Montgomery claims there was neither valid consent to the search nor exigent circumstances justifying the entry. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Indiana State University, Hulman Memorial Student Union Building, Terre Haute, Indiana]

    • 1:30 PM - Cameron Swartzentruber vs. State of Indiana - Appellant was driving a pickup on a county road in rural Daviess County when his truck struck the reaf of a horse drawn buggy, causing the death of one person and injuries to four other. He is appealing his sentence. The Scheduled Panel Members are: Chief Judge Baker, Judges Bradford and Brown. [Where: Court of Appeals Courtroom - Webcast]

    Posted by Marcia Oddi on Monday, March 16, 2009
    Posted to Upcoming Oral Arguments

    Sunday, March 15, 2009

    Ind. Law - Two stories today on Indiana home foreclosures

    Interestingly, both stories point to an Indiana problem lost in all the talk of subprime lending -- ballooning property taxes, not the mortgage loan, as the causative factor in many foreclosures.

    Jerry Davich reports in the Gary Post-Tribune, under the headline "Home foreclosure crisis reaches region."His second example is that of Nick Simmons:

    Simmons, of Gary, has also filed for bankruptcy and is going through the foreclosure process after his home's ballooning property taxes caused his monthly mortgage to jump from $394 to nearly $1,100. He and his wife are losing their home of 21 years and they're planning on moving into a beat-up mobile home on a separate property next to his home.

    "Taxes are the problem, not my loan, and people need to know this, said Simmons, who's 64 and not in great health. "Worse yet, the property that my trailer sits on is appraised at only $10,000 and my taxes for it are $4,300 a year."

    When Simmons, a county maintenance man whose take-home pay is about $1,600 a month, asked his bank representative for guidance, he was told to get a better job, he said.

    "The government has you coming and going with these new taxes, and the bank has you, too," he griped. "You can bet that after the bank gets my house --which I owe only $15,000 on -- it will turn around and sell it for at least $40,000 to $50,000. That's a tidy profit, isn't it?"

    Jeff Parrott writes today in a story in the South Bend Tribune headed "Clerical error threatens couple's home: Homestead exemption can be critical" where it looks like, but for the efforts of the newspaper, and ultimately two county officials, Becky and Bob Reidenbach would have lost their house. The story begins:
    Bob and Becky Reidenbach were already behind on their bills and considering filing for bankruptcy protection.

    Bob is disabled and Becky works part time in the bakery at a Martin's Super Markets store, although her hours have been greatly reduced because of the recession, she said. Over the years, they've gradually accumulated credit card debt that now has them overwhelmed.

    In the bankruptcy, they hoped to keep their home, a modest bungalow in the 1900 block of Randolph Street on South Bend's far east side. Their monthly payment was about $642.

    But in January the couple received an alarming letter from their mortgage company. Their monthly payment was increasing to $1,011 to shore up a deficit in their escrow account.

    The records indicated their tax bill to be about $2,000, so their mortgage company paid that amount, but the Reidenbachs knew that their tax bill should have only been about $400, the couple said.

    Becky called the St. Joseph County auditor's office and quickly learned what happened. The records showed she had not filed for a homestead exemption from her property taxes.

    The homestead exemption is a substantial property tax discount that people can claim on their primary home. Failure to file for it can lead a homeowner to foreclosure.

    The problem was, she knew she had filed for the exemption, in May 2006, a month after buying the home, and she had the documentation to prove it.

    Becky said a clerk at the auditor's office did some checking and easily verified that Becky was correct, and that the office had mistakenly failed to record the exemption for 2007-pay-2008 taxes.

    Becky asked the auditor's clerk to write the mortgage company a letter stating the error had been made, but she said the clerk, after checking with a supervisor, said office policy prohibited such letters to mortgage companies.

    The auditor's clerk told her she would receive a refund for the overpaid taxes, but not until at least June, after the treasurer's office had finished the 2007-pay-2008 tax settlement.

    Becky left the office furious and scared.

    "Due to their mistake, we are going to be homeless!" she told The Tribune. "Through no fault of our own. We do not have the money to make a $1,000 house payment."

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Indiana Government | Indiana Law

    Courts - "Implementing federal sex offender registration law may prove impossible"

    A long, important article today in the Providence RI Journal, about the federal sex offender law, reported by Tracy Breton. Some quotes:

    In 2006, Congress enacted legislation to standardize the way states classify and register sex offenders and to make it easier for the public to learn about an offender’s presence in their communities.

    Under the provisions of the federal Sex Offender Registration and Notification Act (SORNA), each state and all federally recognized Indian tribes are required to set up centralized computer banks to track people convicted of sex crimes — even many whose sentences were completed decades ago — and to post detailed information about each of them, along with a photograph, on a Web site that anyone can access.

    The aim of the law — also known as the Adam Walsh Child Protection and Safety Act — is to reduce the number of sex crimes committed, especially on child victims, and to increase public safety through improved monitoring of sex offenders as they move from neighborhood to neighborhood and state to state. It establishes an easy way for the public to find out if there’s a sex offender living nearby or working or going to school with them or with members of their families. * * *

    But implementation of the law has proven to be a legal and economic nightmare. Some judges have ruled the act unconstitutional. Civil liberties groups, criminal defense attorneys and, surprisingly, even some law enforcement officials, are crying foul. Last week, a veteran sex crimes prosecutor in Louisiana told a subcommittee of the House Judiciary Committee in Washington that implementing the law might actually result in fewer convictions of criminals who prey on young children because it will be hard to get offenders to plead guilty if they know they will be required to register on a Web site as a sex offender for the rest of their lives.

    About a dozen states have gone about revising laws, reclassifying offenders and setting up new computer systems to try to comply with the law. But to date, all of them have failed to convince the Department of Justice — which has set a July 27 deadline for compliance — that they have done enough to do what SORNA requires.

    The penalty for non-compliance is steep: states that don’t comply will lose 10 percent of the federal financing they receive for sex offender management programs and other law enforcement and justice initiatives. But many states may opt out nonetheless. * * *

    Under SORNA, a sex offender who is 14 or older would be required to register, with a photo, on the state’s Web site if the sex offense they were brought to court for involved violence or a victim younger than 12. The minor offender — even those whose cases go through secret Family Court trials — would have to update his registration information three times a year for at least 25 years, perhaps for the rest of his life.

    Then there’s the issue of retroactivity, another “major bone of contention,” said Lynch. A flood of lawsuits have been filed around the country by defense lawyers representing sex offenders who were not required, as part of their original sentence, to register but who are now being told they must do so because of SORNA. Even those who completed sentences 30 or 40 years ago are now being required to register if they are subsequently convicted of another offense, even if the crime isn’t of a sexual nature.

    There have been cases in this circuit on the constitutionaly and retroactivity of the federal requirements. Here is a list.of the ILB entries, beginning with the Dec. 19, 2007 ND Ind. decision in the case of U.S. v. Marcus Dixon, where the constitutionality of the act was challenged. On Dec. 22, 2008 the 7th Circuit issued an opinion, but did not rule on the constitutionality issue.

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Courts in general

    Ind. Courts - Morgan County prosecutor writes from Afghanistan

    The ILB was delighted to receive this e-mail this morning:

    Marcia,
    Just wanted you to know how much I appreciate your blog. It helps me
    keep up on current Indiana law while I am deployed in Afghanistan.
    Respectfully,
    CPT Bob Cline
    US Army, usually Chief Deputy Prosecutor for Morgan County
    Classification: UNCLASSIFIED
    Keep safe, Bob!

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Indiana Courts

    Ind. Law - Indiana fails 2009 Sunshine Week survey

    The Sunshine Week 2009 Survey of State Govt. Info. Online reports:

    The Sunshine Week 2009 Survey of State Government Information online found that while more and more government records are being posted online, some of the most important information is being left offline. And in some cases governments are charging taxpayers to access records that they already paid for, such as death certificates.

    Teams of surveyors scanned government Web sites in every U.S. state to look for 20 different kinds of public records. The results were released today at the start of Sunshine Week 2009, which runs March 15-21. * * *

    The categories for the survey were selected for generally serving the overall public good — the kind of information people need for their own health and well-being and that of the community. The categories were: death certificates, financial disclosures, audit reports, project expenditures, department of transportation projects, bridge inspection reports, fictitious registration of business names, disciplinary actions against attorneys, disciplinary actions against medical physicians, hospital inspection reports, nursing home inspection reports, child care center inspection reports, statewide school test scores, teacher certifications, school building inspections, school bus inspections, gas pump overcharges, consumer complaints against businesses, environmental citations, and campaign finance information. * * *

    The only state found to provide information online in all the categories surveyed was Texas. New Jersey was a close second with 18.

    The state with the least information online was Mississippi. It posted only DOT contracts and projects, fictitious business name registrations, statewide school test scores, and political campaign contributions and expenses. Though it did have some information about hospitals and nursing homes, these were perfunctory lists, not inspection reports, or links to other sites.

    And where did Indiana rank? Next to last. Mississippi had 4 of the 20 categories, Indiana and 3 other states had 7.

    This PDF shows information categories viewable online by region. You can use it to see the list of 20 categories and how Indiana ranked in each.

    One might quibble with some of the results, for instance "disciplinary actions against attorneys." Here is the work sheet, see p. 6 for the details of this category.

    One can find some disciplinary information about Indiana attorneys by looking at the Roll of Attorneys. I checked "Grant W. Hawkins," who has been in the news, and found this standardized entry:

    "(*)“Concluded Discipline:” “YES” indicates this lawyer has been the subject of a professional disciplinary proceeding at least once in the past. To get more information about the lawyer’s disciplinary history, contact the Roll of Attorneys Administrator at (317) 232-5861. Without further information, you should not draw any conclusions about past discipline. Some cases end with minor discipline or are dismissed with no discipline."
    I've called that number in the past. The result - It is the Court of the Court archives. They will mail you a copy of the relevant documents for $1.00/per page, in advance. They will not tell you what they contain. They will not send only select pages. (I'm sure you can go to the office in person and view the documents.)

    Note, for instance, that there is no online tie-in between the Roll of Attorneys and the disciplinary orders issued by the Court.

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Indiana Law

    Ind. Law - "Indiana fire codes could be tougher" says Star. And they could be accessible, says ILB

    That first part is the headline to a lengthy story today in the Indianapolis Star, reported by Bill Ruthhart. The story compares some of Indiana's requirements for large projects with those of San Jose, California. From the end of the story:

    Indiana, like many states, adopts its building codes from the International Code Council, a Washington, D.C.-based group that updates its standards every three years.

    Unlike some states, such as neighboring Illinois and Michigan, Indiana applies one set of codes statewide, and individual municipalities do not develop their own codes.

    Wakefield said most major code changes are handled on the national level and then adopted by states.

    Bruce Johnson, a spokesman with the code council, said that in recent years, codes have become tougher -- particularly for high-rise buildings after the Sept. 11 attacks.

    Wakefield said building codes can always be strengthened but said safety concerns must be weighed against the cost to the developer.

    As the ILB has noted before, the the Indiana State Building Codes are copyrighted and not available online. See this ILB entry from Aug. 7, 2008 and this one from Sept. 2, 2008.

    675 IAC purports to contain the building codes (675 IAC 13), the fire prevention codes (675 IAC 22), etc. But what you actually find, if you look at for instance, p. 108 of the pdf version of 675 IAC 22-2.4-4 (Chapter 3; general precautions against fire), are almost unintelligible provisions, such as:

    (1) Delete Section 301.2 in its entirety without substitution.
    (2) Amend Section 304.1.2 by deleting the last sentence in its entirety without substitution.
    (3) Amend Section 304.2 by deleting the text and substituting the following: Storage of combustible rubbish shall not produceconditions that will create a fire hazard that endangers the safety of persons or property.
    There are over 50 pages like this, and make sense only if you look at 675 IAC 22-2.4-1 (p. 105), which reads:
    Rule 2.4. Indiana Fire Code, 2008 Edition

    675 IAC 22-2.4-1 Adoption by reference

    Sec. 1. That certain document being titled the International Fire Code, 2006 Edition, first printing, as published by the International Code Council, Inc., 500 New Jersey Avenue, NW, Sixth Floor, Washington, D.C. 20001-2070, is hereby adopted by reference as if fully set out in this rule save and except those revisions made in sections 2 through 49 of this rule. (Fire Prevention and Building Safety Commission; 675 IAC 22-2.4-1; filed Mar 18, 2008, 2:30 p.m.: 20080423-IR-675070478FRA, eff 90 days after filing with the Publisher)

    I read this last line to mean that effective May 18, 2008, Indiana adopted by reference the 2006 Edition of the International Fire Code.

    What about the other codes? The best list I've found is this one from the City of Goshen. As noted in the Star story, "Indiana applies one set of codes statewide, and individual municipalities do not develop their own codes."

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Indiana Law

    Environment - More on: State legislation re the financing of a coal-to-gas plant near Rockport close to passage

    Updating this ILB entry from March 13th, concerning Senate Bill 423, which passed second reading last week and will be eligible for final passage as early as tomorrow (and which has not been amended in the second house, meaning that upon passage it will go directly to the governor), the Evansville Courier & Press has an editorial today urging caution. Some quotes:

    To that end, a lot of honorable people in positions of influence in Indiana have enthusiastically climbed on board the proposed Indiana Gasification LLC project, so much so that Senate Bill 423 could easily pass the Indiana House this week. That could come as early as Monday, reports Courier & Press staff writer Mark Wilson.

    Perhaps it is that lawmakers and others want to do something positive for the state and regional economy.

    And so do we. Indeed, we might have gotten on board, as well, except for two particularly troubling requirements. The legislation would require that the state of Indiana — that is, Hoosier taxpayers — would have to buy the substitute gas produced at the plant. Then, the utilities would be required to buy it from the state.

    That's because the utilities, Evansville-based Vectren and Northern Indiana Public Service Co. (NIPSCO), declined late last year after long negotiations to commit to buying the gas directly from the producer.

    When the talks ended, Vectren and NIPSCO officials said that there is too much uncertainty over possible federal carbon regulations to commit to a 30-year purchase agreement.

    So, if Vectren and NIPSCO are the experts in this field, and they don't want to commit to 30 years, why would the taxpayers want to do so? We, the taxpayers, know less about it than the energy providers.

    Also, the developers have promised that if the plant does not achieve $400 million in savings over the 30 years from what natural gas would have cost, the company will turn the plant over to the state or pay the state $400 million.

    Why would the state want the plant? And why are so many lawmakers apparently raring to go?

    What the House will be voting on this week will be financing for the $2 billion plant that would make "pipeline quality" synthetic gas that Indiana customers could use for home heating.

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Environment

    Ind. Courts - Judicial Center's Legislative Update #9

    Not much to speak of again this week. The second half of the legislative session is underway and a few bills are being heard in second house committee.

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Indiana Courts

    Ind. Courts - More on "Girl sues Lebanon Schools for right to wear tuxedo to prom"

    Updating this ILB entry from March 12th, Indy 6 News is reporting:

    LEBANON, Ind. -- A Lebanon High School senior girl will be able to wear a tux to prom after the school said Friday that officials had reversed their original decision on the matter.

    A lawsuit filed Tuesday said the principal told the girl that, while the school's dress code does not contain gender-based requirements, there is a special dress code for prom that requires female students to wear a formal dress.

    In a release issued on Friday, Lebanon Schools Superintendent Robert L. Taylor said that the issued had been resolved.

    "School policy for this year's prom will be that all attendees shall wear appropriate formal attire with no gender-based attire requirements imposed. Female students will be permitted to wear tuxedos if they chose," the release stated.

    Posted by Marcia Oddi on Sunday, March 15, 2009
    Posted to Indiana Courts

    Saturday, March 14, 2009

    Ind. Courts - "Lawyer arrested after not completing community service"

    A brief story today from today's Richmond Palladium-Item:

    Lawyer Eric S. Crockett, 1619 N. Centerville Road, was arrested Thursday on a charge of petition to revoke probation after appearing before Judge Greg Horn in Wayne County Superior Court II.
    Advertisement

    Crockett, 36, received a suspended sentence on a December 2008 conviction for driving while his license was suspended.

    He didn't perform the community service that was a condition of his sentence, according to the prosecutor's office.

    Crockett has no other criminal history, according to a check of records. He remains jailed until Tuesday, officials said. Crockett once worked as a public defender for the county.

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Indiana Courts

    Ind. Decisions - Muncie attorney Michael J. Alexander found not guilty of conspiring to bribe a witness in a client's criminal case

    Rick Yencer reports today in the Muncie Star-Press. A quote from the lengthy story:

    MUNCIE -- After four days of testimony, it took a Delaware Circuit Court 3 jury a little more than an hour of deliberations to decide that local attorney Michael J. Alexander was not guilty of conspiring to bribe a witness in a client's criminal case.

    Alexander hugged his defense attorney and friend Donald McClellan after the verdict was announced Friday evening.

    "The jury did what juries should do," said Alexander, a former county prosecutor. "They should follow the law.

    See this Nov. 7, 2008 ILB entry for background.

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Ind. Trial Ct. Decisions

    Ind. Courts - "Lawyers have loaded the Hammond federal court docket with lawsuits claiming debt collectors are working outside the law"

    Dan Hinkel reports in a developing story on the NWI Times site, headed "As debt load rises, so do abuses." From the story:

    Sometimes, collectors aren't even bothering the right people, said Valparaiso consumer rights lawyer Michael McIlree.

    "This poor guy has his dad get called, his girlfriend's parents, and then he gets called regarding an alleged student loan debt," McIlree said. "This guy says, 'Hey, I never went to college.'"

    In the last 30 days, six lawsuits have been filed in Hammond federal court regarding alleged violations to the Fair Debt Collections Practices Act. McIlree filed three of the suits. At least 20 such suits were filed in Hammond in 2008, accounting for 5 percent of all civil suits filed last year. At least 18 debt suits were filed in Hammond in 2007.

    The ballooning debt means more potential for debt collection lawsuits.

    McIlree said collectors are growing more tenacious and making more phone calls that violate federal laws.

    The Fair Debt Collection Practices Act is designed to protect debtors from abusive, intimidating or misleading contacts from debt collectors. Debt collectors are banned from calling early in the morning or late at night. Once a debtor sends a collector a letter asking the collector to quit calling, the collector can only call again to inform the debtor of a lawsuit. * * *

    Collectors definitely can't try to collect debts from people who don't owe money, but McIlree claims that happened to one of his clients.

    McIlree filed a suit on behalf of Timothy J. Howard, of Porter County, who claims Continental Service Group, of New York, badgered him to repay student loans for a Ball State University education he never received.

    A Continental collector called Howard, his girlfriend and his father, and the collector continued to contact Howard after he told the collector of the alleged mistake, the suit claims. Howard's credit has been damaged, the lawsuit claims.

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Indiana Courts

    Ind. Law - More on: "Senate gives 'green light' to red-light cameras"

    Updating this ILB entry from Feb. 18th about red-light cameras, the Elkhart Truth today has an AP story by Nigel Duara headed "Red-light cameras light up cash registers: Operators of red-light cameras collect lots of money in fines; It's unclear if streets are safer." Some quotes:

    CLIVE, Iowa -- Minutes after Neel Manglik illegally turned right on a red light in the Des Moines suburb of Clive, a video popped up on a computer at an office park outside Scottsdale, Ariz.

    The $75 citation arrived in the mail weeks later, making Manglik one of the millions of Americans ticketed as part of a growing industry that is making handsome profits for companies that operate video cameras at busy intersections throughout the nation.

    As more cities sign up and others invest their profits into more cameras, those companies expect increased revenue for years to come.

    What's less clear is whether the cameras improve safety. While studies show fewer T-bone crashes at lights with cameras and fewer drivers running red lights, the number of rear-end crashes increases.

    Aaron Quinn, spokesman for the Wisconsin-based National Motorists Association, said there are cheaper safety alternatives to red-light cameras, including lengthening yellow-light times.

    "We say, the red-light camera wouldn't have stopped anyone from getting hit," Quinn said. "Once (a city) sees one city getting it miles away, and that first city makes a bunch of money, they want to do it, too. It's like a virus." * * *

    But not all cities make money off of the tickets. Contracts between companies and cities can affect how much money the cities get.

    In Clive, for instance, the red-light camera program generated $39,548.65 between July 2006 and March 2007, but all of that money went to the camera company because Clive didn't ticket enough drivers in any single month to make money. Clive has since changed its contract and now gets a percentage of each ticket.

    The largest red-light camera company, Redflex Traffic Systems of Scottsdale, operates red-light or speed cameras in 22 states, and added 79 cities last year. It signed a $32 million maintenance contract with Chicago last fall, and in just the last three weeks of last year, Redflex added five new cities.

    Indiana's SB 389 is currently in second house committee.

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Indiana Law

    Courts - "Appeal says juror sent 'tweets' during $12.6M case "

    Jon Gambrell of the AP has a story that reports:

    LITTLE ROCK, Ark. (AP) -- A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter.com during the trial that show he's biased against them.

    The motion seeking a new trial was filed Thursday on behalf of Russell Wright and his company, Stoam Holdings. It claims juror Johnathan Powell sent eight messages - or "tweets" - to the micro-blogging Web site via his cellular phone.

    According to the motion, one posting listed the company's Web address and read in part: "oh and nobody buy Stoam. Its bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter."

    Another described what "Juror Jonathan" did today: "I just gave away TWELVE MILLION DOLLARS of somebody else's money."

    In his motion, filed in Washington County Circuit Court in Fayetteville, lawyer Drew Ledbetter wrote that the messages show Powell "was predisposed toward giving a verdict that would impress his audience." * * *

    [Plaintiff] Deihl's attorney, Greg Brown, called the venture "nothing more than a Ponzi scheme."

    Brown said he doubts a new trial will be granted. He said Arkansas law requires defendants to prove that outside information entered the jury room and corrupted a verdict - not that information from the jury room made its way out.

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Courts in general

    Environment - "Dr. Anderson at first couldn’t figure out why he was seeing patient after patient with MRSA in a small Indiana town" [Updated]

    A reader has pointed me to an op-ed piece by Nicholas D. Kristof in the March 11th issue of the NY Times. The focus of the article: "Cases of MRSA, a type of staph infection that is resistant to antibiotics, have raised concerns that agricultural practices in hog farms could be fueling a public health threat." The setting is Camden, Indiana.

    In addition, here is a link to Mr. Krisof's NYT Blog, where in this entry he provides links to more information about anitbiotics in livestock.

    [Updated 3/15/09] Mr. Kristof follows up his March 11th column with this one in the Sunday Times, headed "Pathogens in Our Pork ."

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Environment

    Ind. Courts - More on: State workers lawsuit for back pay during 1973-1993 period begins

    Updating this ILB entry from March 10th, the Indianapolis Star has this brief item today:

    A Marion Superior Court judge won't issue a ruling until at least next month on a case brought by former state workers who say they were underpaid for 20 years.

    Judge John Hanley heard evidence over four days during this week's trial, which ended Friday. He asked attorneys for the plaintiffs and the state to submit proposed findings by March 31.

    The lawsuit contends that as many as 15,000 state employees worked 40-hour weeks from 1973 to 1993 but received the same pay as others in similar jobs who worked 37.5 hours. The plaintiffs' lawyers estimated total unpaid compensation at $42 million to $81 million.

    Remember, this case was settled once, with a contingency, as pointed out in the March 10th ILB entry:
    On Aug. 19, 2008, the ILB had a lengthy entry headed "Indiana OKs $8.5 million payout to some state workers," reporting on a $8.5 million preliminary settlement reached on the day the lawsuit was scheduled to go to tria in Marion Superior Court. There was one caveat, as set out in the Star story from Aug. 19th:
    According to Kautzman, if the calculated total amount exceeds $8.5 million, the state can back out of the settlement and resume trial or pay off the remainder. A tentative hearing is scheduled for mid-October [2008].
    But, as the Star pointed out in the March 10th ILB report:
    A settlement agreement announced in August [2008] later was abandoned by the state after compensation claims exceeded its $8.5 million threshold, said John Kautzman, the attorney for several plaintiffs.

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Indiana Courts

    Ind. Courts - Indianapolis Central library lawsuit begins in Boone County courtroom

    Updating this ILB entry from March 9th, Jon Murray reports today in the Indianapolis Star:

    The first week of testimony in the trial over the troubled Central Library project focused mostly on laying groundwork.

    More meaty evidence lies ahead for the Boone County jury, seated Monday in Lebanon for a six-week trial. It will consider the Indianapolis-Marion County Public Library's claims of fraud against an engineering firm accused of concealing flaws in its design of an underground garage. * * *

    Given three weeks to present the library's case, its attorneys began with a primer for the jury. The project manager, a Library Board member and the board's construction liaison testified about the project's history and how it was planned and carried out..

    Posted by Marcia Oddi on Saturday, March 14, 2009
    Posted to Indiana Courts

    Friday, March 13, 2009

    Not Law - More on: Evansville C&P reporter Bryan Corbin leaves paper

    On March 10 the ILB posted this entry, about Bryan Corbin of the Evansville Courier & Press announcing that he was leaving the paper. He wrote:

    Seeking a safe employment harbor in the economic storm is part of my reason for leaving my longtime profession. But I've also wanted to find a new challenge through which I could serve the public in a different way.
    It turns out the title "Not Law" to the entry was unnecessary. Bryan's new job, I'm told, is Public Information Officer for the Indiana Attorney General's office.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to General News

    Ind. Decisions - Supreme Court tax decision posted late today re issue preclusion

    In Miller Brewing Co. v. Ind. Dept. Revenue, an 11-page, 5-0 decision, the Tax Court‟s denial of Miller's motion for summary judgment is affirmed. Chief Justice Shepard writes:

    The Tax Court ruled in an earlier case addressing the share of Miller Brewing Company's income that is taxable by Indiana. In this case the Tax Court held that its previous ruling did not bar the Department of Revenue from raising new contentions in support of a different method of allocation of income to the state. We affirm. * * *

    [T]his case proceeded solely on the question of issue preclusion. In an unpublished opinion, the Tax Court denied Miller's motion for summary judgment, holding that “while issue preclusion may be appropriate in certain property tax cases, it is generally not applicable in revenue cases.” Miller Brewing Co. v. Ind. Dep't of State Revenue, 867 N.E.2d 713 (table), 2007 WL 1667128, *3 (Ind. Tax Ct. June 8, 2007). The Tax Court certified its order for interlocutory appeal, and we granted review. * * *

    Although most jurisdictions allow preclusion in tax litigation in some circumstances and the Tax Court has considered the issue, this Court has never determined whether, or to what extent, issue preclusion applies in tax cases. * * *

    For purposes of this interlocutory appeal, it is sufficient that the relevant equities of the interpretations of the statute and regulation were not presented in Miller I. They are therefore not precluded in this case. Insofar as these alleged inequities are urged as a basis for denying issue preclusion, they are unsupported by the record. To the extent they bear on the merits of the interpretation of the statute or regulation they remain for another day.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Ind. Sup.Ct. Decisions

    Courts - More on: "Lawyers difficult to obtain in immigration cases"

    Updating this ILB entry from Sept. 3, 2008, Nina Bernstein of the NY Times has a story today headed "In City of Lawyers, Many Immigrants Fighting Deportation Go It Alone." Some quotes from the interesting article:

    In the heart of Manhattan, amid one of the greatest concentrations of legal muscle in the world, hundreds of New York’s immigrant poor are locked up with no access to a lawyer as they fight deportation.

    Robert A. Katzmann, a federal judge on the Second Circuit Court of Appeals, believes that fact alone should summon the city’s legal profession to do more volunteer work in the immigration court system, where no defendant has the right to a court-appointed lawyer, and some of the most vulnerable end up in the hands of fly-by-night operators who bungle cases wholesale.

    But Judge Katzmann, son of a refugee from Nazi Germany and grandson of immigrants from Russia, found that in the nation’s historic gateway to immigrants, few big corporate law firms seemed to hear that summons — even as the consequences of no lawyers or bad lawyers flooded the federal appeals courts, including his own.

    So the judge took a rare step: Almost alone among the nation’s federal judges, he has used the prestige of his office to push for more and better legal representation of immigrants.

    What started as a lecture to the city’s bar association two years ago and quietly evolved into a 7:45 a.m. “study group,” has turned into a movement that filled an amphitheater at Fordham Law School on Wednesday afternoon, drawing high-powered lawyers, judges, academics and city officials who talked bluntly about a dysfunctional system and brainstormed into the night.

    “Justice should not depend on the income level of immigrants,” Judge Katzmann told the group at the outset of this “working colloquium,” seen by some as a model for circuits around the country.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Courts in general

    Ind. Courts - More mold found at Porter County courthouse

    Bob Kasarda reports today in the NWI Times:

    VALPARAISO | The county is again responding to a mold problem at the aging County Courthouse on the square in downtown Valparaiso.

    One of two companies hired to investigate complaints found mold growth on the east wall of Superior Court Judge Bill Alexa's fifth-floor courtroom, on a ceiling tile on the fourth floor in Room 435 and on the second floor around the window in the jury room.

    The same firm also found elevated levels of airborne mold spores in the fifth-floor prosecutor's office and in the basement, while a second company found very low levels throughout the building.

    The airborne levels are not high enough to pose any health threat to either employees or visitors to the courthouse, County Attorney Gwenn Rinkenberger said.

    "If the elevated levels weren't safe, we would have evacuated the building," Rinkenberger said.

    This is the second time in the past four years the county has discovered mold inside the building, she said. The last incident resulted in remediation efforts in the first-floor adult probation department. * * *

    Part of the problem is simply the age of the building, which was renovated in 1995, she said. Older limestone buildings, she said, commonly develop what is know as rising damp, which is when moisture from the ground is wicked up into the walls, impacting the first level.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Indiana Courts

    Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

    For publication opinions today (2):

    Two interesting opinions today, dealing with the old and the new: the Railroad Rights-of-Way Act; and eBay and PayPal user agreements (a case of first impression re jurisdiction in an eBay transaction).

    In Timberlake, Inc. v. Daniel P. O'Brien, a 17-page railroad right-of-way dispute, Judge Riley writes:

    On appeal, Timberlake contests the trial court’s determination that O’Brien holds a railroad right-of-way easement. In developing its argument, Timberlake focuses on CSX’s actions that might support an abandonment of the Railroad Property. Relying on CSX’s filing of intent of abandonment with the Interstate Commerce Commission (ICC) and CSX’s purported removal of the railroad tracks prior to the conveyance of the Railroad Property, Timberlake asserts that CSX had abandoned its property and could not convey any interest to O’Brien. Thus, Timberlake claims that O’Brien owns “nothing” and that the trial court erroneously concluded that O’Brien’s interest is superior to Timberlake’s fee simple interest.

    On the other hand, in his cross-appeal, O’Brien requests us to reverse the trial court’s conclusion that he merely holds a railroad right-of-way easement and to conclude that instead he owns an estate in fee in the Railroad Property. Interpreting the language used in the 1881 Deeds, O’Brien contends that each of the grantors intended to convey the strip of land to the railroad forever, thereby creating an estate in fee. Alternatively, O’Brien asserts that he, at a minimum, acquired an easement that can be used consistent with the express provisions in the deeds, i.e., “to pass and repass . . . engines, cars, horses, cattle, carts, wagons, and other vehicle.” * * *

    In light of the clear language indicating the conveyance of a right-of-way combined with the limiting purpose to which the land was to be put, we conclude that the Deeds are properly construed as passing only an easement to the railroad, its successors, lessees and assigns and not a fee simple. * * *

    Because an easement is a “right to use or control the land, . . . , for a specific limited purpose,” O’Brien’s use to transport goods or materials over the Railroad Property is necessarily restricted by the terms of the Deeds. See BLACK’S LAW DICTIONARY 548 (8 th ed. 2004). As such, O’Brien is only allowed to “pass and repass by themselves, their servants, agents and employees with their engines, cars, horses, cattle, carts, wagons and other vehicle, and transport freight and passengers, and do all other things properly connected with or incident to the location, building, maintaining and servicing the [Railroad Property][.]” (Appellant’s App. pp. 249, 252, and 255). Granting O’Brien anything more would effectively transform the easement into a fee simple.

    Thus, in light of the designated evidence before us, we conclude that CSX conveyed its easement in the Railroad Property to O’Brien by quitclaim deed on June 28, 1990. Because of the Deeds’ restrictive language, O’Brien’s use of the easement is O’Brien anything more would effectively transform the easement into a fee simple. limited to the purposes set forth in the 1881 Deed documents. Therefore, we affirm the trial court’s denial of Timberlake’s motion for summary judgment.

    CONCLUSION. Based on the foregoing, we hold that the trial court properly determined that O’Brien holds a railroad right-of-way easement, the usage of which is restricted by the provisions included in the 1881 Deeds. Affirmed.

    [ILB Note: Footnote 4, on p. 15, examining the statutory history of the Rights-of-Way Act, was of particular interest to the ILB.]

    In Richard and Marlene Attaway v. Llexcyiss Omega and D. Dale York, a 13-page interlocutory appeal, Judge Crone writes:
    Richard and Marlene Attaway (“the Attaways”) bring this interlocutory appeal of the trial court’s denial of their motion to dismiss. We affirm and remand.

    Issues: I. Did the trial court err by denying the Attaways’ motion to dismiss? II. Is venue in Clay County proper? III. Do the eBay and PayPal user agreements prohibit the parties from
    litigating their dispute?

    [ILB - The Indiana sellers, residents of Indiana, listed a Porsche for sale on eBay. The Attaways, residents of Idaho, entered a bid of $5,000 plus delivery costs. After being notified that they had “won” the auction, the Attaways submitted payment to seller through PayPal, which charged the amount to the Attaways’ MasterCard account. On or about February 5, 2006, the Attaways arranged for CarHop USA, a Washington-based auto transporter, to pick up the Porsche in Indiana and deliver it to their Idaho residence. After taking delivery of the Porsche, the Attaways filed a claim with PayPal, asking
    for a refund of its payment to seller because the Porsche was “significantly not-as-described” in its eBay listing. On March 8, 2006, PayPal informed the Attaways via email that their claim was denied and encouraged them to “work directly with the buyer to find a resolution.” It appears that, soon thereafter, the Attaways convinced MasterCard to rescind the payment that was made to sellers.]

    On December 27, 2006, Omega and York filed suit against the Attaways in small claims court, demanding $5,900 in damages. On February 1, 2007, the Attaways filed an answer and a motion to dismiss with prejudice, citing, among other things, lack of personal jurisdiction. On August 21, 2007, the trial court denied the motion. On September 24, 2007, the Attaways filed a motion to certify order for appeal. On October 3, the Attaways filed a motion to stay proceedings pending appeal, which the trial court granted. This interlocutory appeal ensued.

    I. Personal Jurisdiction. The Attaways claim that the trial court erred in denying their motion to dismiss for lack of personal jurisdiction. * * *

    The instant case is one of first impression in Indiana and perhaps in the country. Several state and federal courts have addressed jurisdictional issues in eBay transaction cases where dissatisfied buyers have sued sellers, alleging misrepresentation. Our research, however, has not revealed any cases in which an eBay seller has sued a buyer for rescission of payment after the buyer has picked up the item in the seller’s state. These distinctions are significant to our analysis. * * *

    Here, the Indiana sellers, Omega and York, filed suit against the Idaho buyers, the Attaways, after the Attaways took delivery of the vehicle and then rescinded payment. As mentioned above, the Attaways were able to see the sellers’ location prior to making their bid on the Porsche. Presumably, a person considering placing a bid in an online auto auction would note the vehicle’s location, particularly when, as here, the seller states that the buyer will be responsible for arranging and paying for delivery. Obviously, delivery fees could vary significantly, depending upon how far away the vehicle is from the buyer’s home.

    By submitting a bid, the Attaways agreed to appear, in person or by representative, in Indiana to pick up the vehicle. After they “won” the Porsche, they hired an auto shipping company, based in Washington, to enter the state of Indiana as their representative, pick up the Porsche, and deliver it to them in Idaho. In sum, during the course of this transaction, there was more than just a single online purchase to satisfy the personal jurisdiction requirements of the federal due process clause. Therefore, we conclude that the Attaways purposefully availed themselves of the privilege of conducting activities within the State of Indiana such that they could reasonably anticipate defending a lawsuit in Indiana related to this eBay purchase.

    As for whether the attachment of personal jurisdiction comports with “fair play and substantial justice[,]” we consider the factors set forth above. See Burger King Corp. at 476. It appears that the burden on the Attaways is no greater than the burden would be on Omega and York if they were forced to bring this case in Idaho. As for efficient resolution of the controversies, it is not evident that there would be greater travel expenses or inconvenience for more people if the case is tried in Indiana. In weighing the interests of the states, it is certainly within the bounds of fair play and substantial justice to allow Indiana to exercise personal jurisdiction over individuals who have entered into a contract with an Indiana resident for the purchase of property located in Indiana, have removed that property from the state of Indiana, and then rescinded payment.

    Based on all of the above, we affirm the trial court’s denial of the Attaway’s motion to dismiss.

    II. Small Claims Rules. The Attaways also argue that pursuant to the Small Claims Rules, venue in Clay County is improper because “[a]t no time did the Attaways enter into a transaction which availed themselves of Clay County.” Appellant’s Br. at 12. As Omega and York point out, the Attaways sent a representative to Clay County to pick up the vehicle after it was purchased. This action was sufficient to establish venue in Clay County.

    III. Online Dispute Resolution Process. The Attaways also contend that eBay and PayPal users are required to use those websites’ dispute resolution processes in lieu of litigation. They direct us to the current PayPal user agreement and eBay dispute resolution procedures posted online, although we have no way of knowing if these were the versions in effect at the time of the transaction in this case. At any rate, the Attaways fail to show us any language within these documents suggesting that the online dispute resolution process is a buyer or seller’s sole recourse in the event a dispute arises. Moreover, the Attaways fail to cite any caselaw in which an eBay dispute has been dismissed for lack of jurisdiction on these grounds. Therefore, this argument must fail.

    We hereby affirm the trial court’s denial of the Attaways’ motion to dismiss and remand for trial.

    ROBB, J., concurs.
    BROWN, J., concurs with separate opinion. [which reads in full] I concur with the majority opinion but write separately to clarify that my concurrence is based on the specific facts before us, and that in weighing the interests of the states under these particular circumstances, it would be outside the bounds of fair play and substantial justice to require the seller, who is now without both the vehicle and the money for it, to bring this case in Idaho.

    NFP civil opinions today (4):

    Dennis M. Horrall, as Successor Trustee of the Mary Y. Skelton Revocable Living Trust, et al. v. Phyllis J. Motts, et al. (NFP) - A 28-page opinion by Judge Crone, where the issues are: "I. Whether the probate court erred when it invalidated the January 24, 2006 Amendment to Yvonne's trust based on the presumption of undue
    influence, which had not been pled; II. Whether the probate court erred by invalidating the April 7, 2006 Amendment to Yvonne‟s trust based on the presumption of undue influence; and III. Whether remand to the probate court for determination of attorneys' fees is appropriate."

    Lonnie Garner, Jr. v. Alan Finnan (NFP) - "For the foregoing reasons, we affirm the trial court’s denial of Garner’s petition for writ of habeas corpus."

    Ford Motor Company and TRW Vehicle Safety Systems, Inc. v. Sally Moore, et al (NFP) is a 28-page, 2-1 opinion where the majority concludes: "In light of the foregoing, the Estate failed to present sufficient evidence that Ford or TRW breached a duty of reasonable care. Accordingly, the negligence claim must fail and the jury verdict is reversed. Reversed." The dissent, beginning on p. 24, concludes: "In sum, based upon the standard of review and the evidence before me, I find that the Estate presented sufficient evidence from which the jury could reasonably conclude that a safer and feasible alternative to the conventional seatbelt was available that would have cost-effectively improved aggregate safety in all types of crashes."

    In Re: the Term. of the Parental Rel. of A.H. and J.H., Jennifer Grubbs Howard and Jerome Howard v. The Dept. of Child Svcs. of Allen Co. (NFP)

    NFP criminal opinions today (4):

    Glenn Culler v. State of Indiana (NFP)

    Robert Trimpl v. State of Indiana (NFP)

    Stephanie Najjar v. State of Indiana (NFP)

    In the Matter of: S.R. v. State of Indiana (NFP)

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Courts - "Angry Lake County judge jails missing juror"

    Ruth Ann Krause reports today in the Gary Post-Tribune:

    Lake Superior Court Judge Clarence Murray sentenced a 20-year-old Schererville man to one week in jail after finding him in contempt of court Thursday for not returning for jury duty in a murder case.

    Christopher Carlson had been selected to serve on the jury in the trial of Steven Craig Allen, charged with three counts of murder in perpetration of arson.

    He told the judge after he left court Monday he found out his car had caught fire. He said he went Tuesday to retrieve the car from a Tinley Park, Ill., impound lot but wasn't able to do so.

    "I think you're full of it," Murray responded.

    Carlson had been told to call one of Murray's bailiffs if a problem arose. He never called, Murray said.

    "We don't tolerate this kind of thing," Murray said, adding that Carlson had shown disrespect for the court, his fellow jurors, the attorneys involved in the case and the legal system.

    Murray said Carlson will be released March 19.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Indiana Courts

    Environment - State legislation re the financing of a coal-to-gas plant near Rockport close to passage

    Updating the second half of this ILB entry from March 8th, Mark Wilson reports today in the Evansville Courier & Press under the heading "Proposed coal-to-gas vote near." Some quotes:

    State legislation that would move forward the financing of a coal-to-gas plant near Rockport, Ind., in Spencer County could receive a final vote in the Indiana House as early as Monday.

    The $2 billion facility would turn coal into a "pipeline quality" synthetic gas that Indiana customers could use for home heating.

    Developer William Rosenberg said the plant will be able to provide the gas at a cost less than the market price of natural gas over the long run.

    However, special legislation is required to do so, because negotiations with several utilities to lock in a 30-year contract to purchase the gas fell through last year. Such long-term purchase agreements are necessary to qualify for federal loan guarantees that would make funding of the plant possible, Rosenberg said.

    Although natural gas prices currently are low, Rosenberg said Thursday that prices are expected to rise over the next 30 years while the supply from within the United States is expected to decrease. The price of coal is expected to stay relatively stable, with much less of an increase over time.

    A recent forecast by the federal Energy Information Administration predicts the price of natural gas to reach $9.25 per million Btu by 2030. The report also is expecting demand for natural gas to increase sharply during that time, supplying most of the additional electric generating capacity added by 2030.

    "No one believes they (natural gas prices) are going to stay where they are today," Rosenberg said.

    He suggested if the plant was operating now, it would be able to produce 16 percent to 20 percent of Indiana's natural gas needs.

    But with utilities unwilling to commit to a long-term purchasing agreement, legislators drafted a bill that will allow the Indiana Finance Authority to act as a go-between for the plant and utilities.

    Senate Bill 423 passed the Senate last week. It passed out of a House committee Tuesday by a vote of 10-1 and could face a final vote in the House as early as Monday, said John Schorg, a House spokesman. * * *

    Rosenberg said the plant will capture 99 percent of most pollutants and 90 percent of its carbon dioxide — a pollutant linked to global climate change.

    That puts it in line with a growing movement toward capturing carbon dioxide emissions from power plants and other facilities and using it in other ways, Rosenberg said.

    He said Thursday that while carbon dioxide has many uses in industry and energy production that the carbon dioxide captured at the Rockport plant would be piped for used in oil production. In a process called enhanced oil recovery, the carbon dioxide would be injected into wells traditionally thought of as spent, forcing additional oil to the surface.

    "Essentially, we will be using coal to produce not one but two kinds of energy — gas and oil," Rosenberg said.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Environment

    Courts - "How Obama Will Handle U.S. Attorney Posts Still Unclear"

    The Washington Post this morning has this story by Carrie Johnson that begins:

    One of the better spoils of winning the presidency is the power to appoint nearly 100 top prosecutors across the country. But filling the plum jobs has become a test of competing priorities for President Obama. While he pledged bipartisanship during his campaign, replacing the cadre of mostly conservative U.S. attorneys would signal a new direction.

    When President Bill Clinton took office, he fired all U.S. attorneys at once, provoking intense criticism in the conservative legal community and among career lawyers at the Justice Department.

    President George W. Bush took a different approach, slowly releasing several of the prosecutors but keeping in place Mary Jo White, the U.S. attorney for the Southern District of New York, while she pursued terrorism cases and a politically sensitive investigation of Clinton's pardon of fugitive financier Marc Rich.

    Obama has not made clear how he will build his own corps of prosecutors, a group that shapes an administration's approach to law enforcement and is critical to its smooth operation. U.S. attorneys' offices handled more than 100,000 criminal cases and recovered $1.3 billion in forfeited cash and property in the past fiscal year, according to a prosecutors' trade group.

    The White House is under pressure from several fronts, both to appoint new prosecutors favored by members of Congress and, in other cases, to keep some U.S. attorneys from the Bush administration.

    Several Bush holdovers, who were told before the inauguration that they could stay "for the time being," are making it known that they want to remain, citing the high-profile investigations they are pursuing. About 40 of the Bush appointees left of their own accord before the election, but dozens have stayed on.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Courts in general

    Ind. Courts - Yet more on: Training on new loan modification programs [Updated]

    Updating earlier ILB entries on training and CLEs available to Indiana attorneys for education on how to handle mortgage foreclosure cases, the Indiana Courts site now has listed three new upcoming seminars, in Griffith, Indianapolis, and Evansville.

    Calendar of Upcoming Training Opportunities

    Date
    Course Title
    Location
    06.17.2009
    Evansville
    04.03.2009
    Indianapolis
    03.18.2009
    Griffith
    03.06.2009
    Indianapolis

    Visit the Indiana Court's new Mortgage Foreclosure Task Force page.

    [Updated at 10:40 AM] Here is a release on the Wednesday, March 18th, 5:30 p.m., session in Griffith, Indiana.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Indiana Courts

    Ind. Courts - Disciplinary Commission Panel to review complaint against Delaware County Prosecutor McKinney

    Rick Yencer of the Muncie Star-Press reports today:

    The Indiana Supreme Court Disciplinary Commission will decide whether Delaware County Prosecutor Mark McKinney committed misconduct in his handling of civil drug forfeiture cases.

    Ten months after Mayor Sharon McShurley filed the initial grievance, the commission determined the complaint warranted further investigation, which will ultimately decide whether there was misconduct warranting discipline.

    "This means the commission as a body will review the matter," said Indianapolis attorney Kevin McGoff, who represents McKinney.

    McKinney stressed that the commission had not made any determination or finding of misconduct.

    Donald Lundberg, executive secretary of the disciplinary commission, informed the mayor and prosecutor by certified mail this week that the mayor's grievance "has been reclassified misconduct and docketed and will be considered by the disciplinary commission to determine whether there is reasonable cause to believe that (McKinney) has been guilty of misconduct which warrants discipline or whether the grievance should be dismissed," according to the letter McKinney and McShurley received.

    Contacted at his Indianapolis office, Lundberg declined to confirm the commission would now review McKinney's alleged misconduct, as court rules make the process confidential until a formal complaint for disciplinary action is filed in court.

    Here is a May 28, 2008 ILB entry including this quote from an earlier Yencer story:
    The feud between Mayor Sharon McShurley and Delaware County Prosecutor Mark McKinney has now escalated into a legal battle.

    McShurley, a Republican, last week filed a formal ethics grievance against McKinney, a Democrat, with the Indiana Supreme Court's disciplinary commission alleging he deceived local courts while handling forfeiture cases involving thousands of dollars in money and assets seized from drug dealers.

    In doing so, McShurley alleged, McKinney diverted money toward the Muncie-Delaware County Drug Task Force that rightfully belonged to the City of Muncie general fund.

    "I believe the city is entitled to reimbursement and has never received it," McShurley said Tuesday.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Indiana Courts

    Courts - Seymour-based Rose Acre Farms takings judgment reversed by Court of Appeals for the Federal Circuit [Updated]

    An opinion yesterday by the United States Court of Appeals for the Federal Circuit in a much litigated dispute, about which the ILB has posted occasionally (eg here, from 2004) - Rose Acre Farms v. United States. Here is the 46-page opinion. Some quotes:

    In 1992, Rose Acre Farms, Inc. (“Rose Acre”) filed the present action in the United States Court of Federal Claims, claiming that United States Department of Agriculture (“USDA” or “the government”) regulations that restricted egg sales from its farms and caused the loss of egg-laying chickens that tested positive for the presence of salmonella bacteria effected a taking requiring compensation under the Fifth Amendment. In 2003, the trial court held that Rose Acre was entitled to compensation for a taking of the eggs affected by the regulations as well as for hens seized for testing. In our previous appeal, we held that the court misapplied the standards governing regulatory takings claims under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). We vacated and remanded for appropriate reconsideration.

    We must again decide whether the trial court correctly held that the government’s regulations, which restricted the sale of certain of Rose Acre’s eggs during the approximately two-year period, constituted a taking for which just compensation is due. As explained below, we hold that, upon a proper assessment of the Penn Central factors, the USDA did not commit a compensable taking. We therefore reverse the judgment of the Court of Federal Claims. Reversed.

    [Updated at 10:30 AM] The Blog of Legal Times now has an entry on this decision, including a quote from a local attorney:
    Geoffrey Slaughter, an Indianapolis partner in Taft Stettinius & Hollister, argued for Rose Acre. “We’re studying the decision and trying to understand its implications. It’s too early to know whether our client will rest with this result or press forward with this litigation,” Slaughter says.

    Posted by Marcia Oddi on Friday, March 13, 2009
    Posted to Indiana Decisions

    Thursday, March 12, 2009

    Ind. Courts - Supreme Court denies petition for writ of mandamus

    This Order, State of Indiana v. Madison Superior Court No. 3, dated March 6th, was posted on the Indiana Court website March 11th. It is a one-page, 5-0 denial of a petition for writ of mandamus filed by Judge Thomas Newman, Jr. No further details are available.

    A check of the ILB for Judge Newman has turned up this entry from Dec. 19, 2006, a judicial disciplinary action cited in the Hawkins decision yesterday.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Indiana Courts

    Ind. Courts - County Council lays off two employees in the Warrick County Prosecutor’s Office

    From the Boonville Standard / Newburgh Register, a report by Timothy Young includes these quotes:

    The day that has been lingering dreadfully for county officials finally arrived last Thursday.

    Despite the efforts of the Warrick County Council, the board voted to layoff two employees in the Warrick County Prosecutor’s Office.

    The employees — one attorney and one clerical assistant — are part of the pretrial diversion division. Up until recently, the division has been fully-funded through user fees generated through its users, but Prosecutor Todd Corne said a slowing economy has had its effect on the program’s revenue.

    He said that his department is already running as lean as possible and that he can’t afford to lose any employees.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Indiana Courts

    Courts - A copy of Bernard Madoff's plea allocution

    More or less, how he did it. From the WSJ Law Blog - access it here.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Courts in general

    Ind. Courts - Fraud Investigation by State Securities Office, and a Mis-step

    Yesterday Secretary of State Todd Rokita's office sent out a press release announcing:

    Investigators and attorneys from Indiana Secretary of State Todd Rokita’s Securities Division have successfully obtained a temporary restraining order against Dorothy Geisler-Tragardh, formerly a one-third partner in the clean coal energy company Praxis Resource Partners, LLC. Geisler-Tragardh is under investigation by Secretary Rokita’s office for possible securities fraud after her former business partners came forward with suspicions she pocketed funds she raised from investors for the company and used the money for personal benefits and expenses.

    Carmel residents Chris and Jan Marten as well as the business J.S. Martin, Inc. are also named as defendants in the civil complaint filed today, along with other businesses associated with Geisler-Tragardh. * * *

    The assets of Geisler-Tragardh and the Martens were immediately frozen by Judge Patrick McCarty as a result of a civil complaint made by the Indiana Securities Commissioner with the assistance of the Indiana Attorney General’s Office. The asset freeze will remain in place until a hearing set for March 18. * * *

    A copy of the court’s order is attached to this e-mail.

    The Order was indeed attached to the release. Appended to the Order, and clearly labeled Not for Public Access, Indiana Trial Rule 5(G), Adm. Rule 9(G), was a page containing the names and numbers of the accounts to be frozen.

    Today, a "follow up on press release," that reads:

    Yesterday, a press release was issued by this communications office that included an inadvertent release of the account numbers for two bank accounts involved in an asset freeze obtained by the Indiana Securities Division. We are calling this matter to the attention of the Court, the named parties, and the pertinent banks.

    The information released involves numbers for bank accounts that are frozen by the order. We anticipate this information would be made public at a hearing on March 18th. The court order states this information is not to be made public in the interim. Any publication of this account information could result in a violation of the order. I’m attaching a version of the court’s order that is suitable for distribution.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Indiana Courts

    Ind. Decisions - 7th Circuit issues two Indiana decisions

    In U.S. v. Terri Sawyer (SD Ind. Judge McKinney), a 19-page opinion, Judge Flaum writes:

    Terri Sawyer was convicted for participating in a conspiracy to distribute methamphetamine. Her appeal primarily rests on the district court’s refusal to instruct the jury on the elements of a duress defense, although she also raises questions about her sentence and certain evidentiary rulings as well. For the following reasons, we affirm the judgment and sentence of the district court.
    In Malone v. ReliaStar Life Insurance (ND Ind. Judge Lee), a 25-page opinion, Judge Kaane writes:
    This is a case about death. To be entitled to the death benefit payable under a life insurance policy, a beneficiary must prove that the insured is actually, or, in the alternative, perhaps only legally, dead. There is a difference between the two. As is often the case in the law, words and concepts so familiar in everyday life assume esoteric identities when cloaked in legal rhetoric. It should come as no surprise, then, that not even death, perhaps the most sobering and forthright fact in life, is immune from legal definition.

    A life insurance beneficiary may prove an insured’s death in two ways. One avenue is for the beneficiary to utilize direct or circumstantial evidence to prove, by a preponderance of the evidence, that an insured is, in fact, dead. In lieu of proving actual death, however, a beneficiary may seek to prove death by means of a legal pre- sumption. In other words, although the insured may, as a matter of fact, be alive, in certain circumstances the law permits one to presume he is dead. The mechanics of this presumption are at the center of this case. For the reasons that follow, we conclude that the district court incorrectly instructed the jury and employed a flawed special verdict form. Taken together, these errors were prejudicial. We remand for a new trial.
    A 13-page decision by Judge Posner today in a case out of ND Illinois, U.S. v. Farinella, is of interest. Judge Posner writes:
    In May 2003 the defendant bought 1.6 million bottles of “Henri’s Salad Dressing” from ACH Foods, which in turn had bought it from Unilever, the manufacturer. The label on each bottle said “best when purchased by” followed by a date, which had been picked by Unilever, ranging from January to June 2003. ACH had purchased Henri’s Salad Dressing from Unilever when the “best when purchased by” date was approaching. The intention was to sell the salad dressing to consumers through discount outlets. The defendant accordingly resold the salad dressing he bought from ACH to “dollar stores,” which are discount stores, but before doing so he pasted, over the part of the label that contains the “best when purchased by” date, on each bottle, a new label changing the date to May or July 2004. The government calls these the dates on which “the dressing would expire.” That is itself false and misleading, and is part of a pattern of improper argumentation in this litigation that does no credit to the Justice Department. The usage echoes the indictment and was employed repeatedly by the prosecution at trial; in her opening argument the principal prosecutor said that “it’s a case about taking nearly two million bottles of old, expired salad dressing and relabeling it with new expiration dates to pass it off as new and fresh . . . . [N]obody wants to eat foul, rancid food.” The term “expiration date” (or “sell by” date, another date that the government’s brief confuses with “best when purchased by” date) on a food product, unlike a “best when purchased by” date, has a generally understood meaning: it is the date after which you shouldn’t eat the product. Salad dressing, however, or at least the type of salad dressing represented by Henri’s, is what is called “shelf stable”; it has no expiration date. * * *

    It is important to understand what else this case does not involve, and also what is not in the record—the omissions are more interesting than the scanty contents of the government’s threadbare case. There is no sug- gestion that selling salad dressing after the “best when purchased by” date endangers human health; so far as appears, Henri’s Salad Dressing is edible a decade or more after it is manufactured. There is no evidence that the taste of any of the 1.6 million bottles of Henri’s Salad Dressing sold by the defendant had deteriorated by the time of trial—four years after the latest original “best when purchased by” date—let alone by the latest relabeled “best when purchased by” date, which was 18 months after Unilever’s original “best when purchased by” date. There is no evidence that any buyer of any of the 1.6 million bottles sold by the defendant has ever complained about the taste. * * *

    The government could have performed tests on the salad dressing to determine its freshness—perhaps the same tests that Unilever had performed. It did not do so, or, if it did, it did not present the results at trial. In her closing argument the prosecutor 14 times substituted “expiration date” or “expires” for “best when purchased by”—14 further improprieties, which grew to 20 in the government’s main appeal brief by virtue of its using “sell-by date” as a synonym for “expiration date.”

    We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be. We are not permitted to reverse a judgment on the basis of a lawyer’s misconduct that would not have caused a reasonable jury to acquit, United States v. Hasting, 461 U.S. 499, 505-06 (1983); United States. v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995), but in this case, had the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct. That sanction is not available only because the government presented so little evidence that the defendant is entitled to an acquittal. That does not detract from the gravity of the prosecutor’s misconduct and the need for an appropriate sanction. The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.

    Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Supreme Court decides two today, extending Lambert

    In Todd Allen Clark v. Michelle D. Clark, a 7-page, 5-0 opinion, Justice Sullivan writes:

    In Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), this Court held that pre- incarceration income should not be imputed to an imprisoned parent when setting an initial order of child support. But, until the question was before us, we declined to go further and decide whether or not incarceration constitutes a substantial change in circumstances justifying modification of an existing child support obligation. That question is presented in this case and we conclude, based on the same reasoning we employed in Lambert, that modification is justified.

    In light of our analysis in Lambert, we hold that in petitions to modify a support order, incarceration may serve as a changed circumstance so substantial and continuing as to make the terms of the support order unreasonable pursuant to I.C. § 31-16-8-1. Thus, it follows that a support obligation should be set based on the obligated parent’s actual earnings while incarcerated (and other assets available to the incarcerated person). To the extent that prior opinions of the Court of Appeals like Holsapple v. Herron, 649 N.E.2d 140, and Davis v. Vance, 574 N.E.2d 330, are inconsistent with this conclusion, we disapprove those decisions.

    As articulated in Lambert, a court may order the child support obligation to revert to the pre-incarceration level upon release, consistent with the modification recommendation. 861 N.E.2d at 1182. This has the effect of relieving the custodial parent from the burden of obtaining a new modification order when the obligated parent is released.

    In Gary Becker v. Heather Becker, a 4-page, 5-0 decision today granting transfer with opinion today, Justice Sullivan writes:
    Today in Clark v. Clark, – N.E.2d –, No. 35S05-0809-CV-506, slip op. (Ind. Mar. 12, 2009), we hold that incarceration may constitute a substantial change in circumstances justifying modification of an existing child support obligation. This case requires us to determine the effective date of such a modification. We hold that such a modification may not take effect on a date earlier than the date on which the petition to modify is filed. * * *

    A trial court has discretion to make a modification of child support relate back to the date the petition to modify is filed, or any date thereafter. Quinn v. Threlkel. * * * The modification of a support obligation may only relate back to the date the petition to modify was filed, and not an earlier date, subject to two exceptions not applicable here. [ILB-spelled out in ftnote 4.]

    Nothing in Lambert or Clark suggests a contrary rule for modifications due to incarceration. We now hold that Lambert and Clark do not apply retroactively to modify child support orders already final, but only relate to petitions to modify child support granted after Lambert was decided. A trial court only has the discretion to make a modification of child support due to incarceration effective as of a date no earlier than the date of the petition to modify. Consequently, the date Becker instituted his request for relief represents the earliest date the abatement could become effective.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

    Ind. Decisions - Court of Appeals issues 6 today (and 7 NFP)

    For publication opinions today (6):

    In DLZ Indiana, LLC v. Greene County, Indiana , a 14-page opinion, Judge Najam writes:

    In this appeal, we are asked once again to consider what constitutes a joint venture. DLZ Indiana, LLC, (“DLZ”) appeals from partial summary judgment in favor of Greene County, Indiana (“the County”) on the County’s second-amended complaint alleging breach of contract. DLZ presents a single issue for our review, namely, whether the trial court erred when it concluded that DLZ was engaged in a joint venture with United Consulting Engineers, Inc. (“United”) to provide architectural services for the County (“the Project”). We hold that United and DLZ did not exercise joint or mutual control over the Project or share profits and, thus, were not doing business as a joint venture as a matter of law. * * *

    In sum, the Agreement is unambiguous with respect to whether United and DLZ were doing business as a joint venture. First, there is no evidence that they exercised joint or mutual control over the Project, which is an essential element. Section 23 of the Agreement allocates responsibility and liability between them, limits DLZ’s responsibility and liability, and identifies United as the “principal.” If “the Firm” were a joint venture, both United and DLZ would exercise joint or mutual control over the Project and would be jointly and severally liable as principals. But Section 23 makes it clear that United and DLZ do not have “an equal right to direct and govern the undertaking.” See Walker, 887 N.E.2d at 138.

    Second, and of equal significance, there is no evidence within the Agreement that United and DLZ shared profits. An agreement to share profits is essential to a joint venture. Here, United and DLZ had no joint proprietary interest. Instead, they were paid for their professional services at their own predetermined hourly rates, and they did not share in each other’s profits or losses.

    And finally, even if the Agreement were ambiguous, the designated, extrinsic evidence also demonstrates that the essential elements of joint or mutual control and shared profits are missing.

    We conclude that there is no genuine issue of material fact and hold that United and DLZ were not engaged in a joint venture as a matter of law. We reverse the entry of summary judgment for the County and instruct the trial court to enter partial summary judgment for DLZ on this issue.

    Reversed and remanded with instructions.

    In Stuart and Nancy Showalter v. Town of Thorntown, a 10-page opinion, Judge Najam writes:
    Stuart and Nancy Showalter appeal from the trial court's order that they pay the attorneys' fees incurred by the Town of Thorntown (“Thorntown”) in Thorntown's enforcement of various ordinances against the Showalters. The Showalters raise a single issue for our review, which we restate as whether they preserved their appeal of the trial court's order that they pay Thorntown's attorneys' fees. * * *

    61. At trial, Defendant Stuart Showalter challenged portions of Plaintiff's Exhibit [14].

    62. In particular, Stuart Showalter contested entries on said bill for communications by the town attorney with former Indiana Public Access Counselor Karen Davis and present Indiana Public Access Counselor Heather Willis-Neal.

    63. The record confirms that the Defendants never utilized the Indiana Rules of Trial Procedure in conducting discovery in the present case. Instead, Defendant Stuart Showalter utilized the Indiana Public Access Statute(s) in seeking documents from the Town of Thorntown relating to the present case.

    64. Stuart Showalter further questioned entries on Exhibit fourteen (14) that referenced cause numbers not associated with the case tried on October 10, 2007, and February 14, 2008.

    65. If the Court were to subtract the time listed on Plaintiff's Exhibit fourteen (14) attributable to cases other than [the] current cause . . . the result would be the subtraction of [21.3] hours[] from said statement.

    66. [$185] per hour, [86.7] hours of attorney time compute[s] to [$16,039.50] in billable hours. * * *

    The Showalters raise one issue on appeal, namely, whether Thorntown Ordinance 2004-1-11(b), which permits Thorntown to recover its attorneys' fees upon the successful enforcement of its ordinances, violates Indiana law. In response, Thorntown asserts that the Showalters waived this issue for appellate review because they did not first present their argument to the trial court. * * *

    The Showalters have waived the issue raised on appeal for review. As this court has explained on numerous occasions: [see p. 9 of opinion] * * *

    We reluctantly conclude that the Showalters have waived their arguments. The issues raised by the Showalters merit appellate review. Both the amount of the Thorntown fine levied against the Showalters ($7,310) and the amount of the attorneys' fees awarded to Thorntown ($16,039.50) appear excessive. To be sure, the Showalters should have cut the weeds and removed the signs, but those violations hardly raise complex legal issues to warrant a judgment in excess of $23,000. Finally, the fact that the Showalters utilized Indiana's Public Access Statutes, rather than the Indiana Rules of Trial Procedure, to obtain documents from Thorntown is of no moment and should not have exposed the Showalters to additional attorneys' fees.

    In sum, we are obliged to hold that the Showalters have not preserved their arguments for appellate review. The Showalters' stated issue on appeal—that the award of attorneys' fees to Thorntown is contrary to law—is a substantive question independent in character from the issues and arguments they raised at trial. We cannot say that the trial court erred when it never had an opportunity to address the issue now raised for the first time on appeal. The judgment against the Showalters is affirmed.

    In David A. Shotts v. State of Indiana , a 9-page opinion, Judge Crone writes:
    David A. Shotts appeals his conviction for class C felony carrying a handgun without a license with a prior felony. The dispositive issue is whether the trial court abused its discretion by admitting evidence seized from Shotts's person when Indiana police executed an Alabama arrest warrant. We reverse. * * *

    In sum, the Alabama arrest warrant was clearly deficient on its face, resulting in a search and seizure of Shotts's person that violated his rights under the Fourth Amendment and the Indiana Constitution. The exclusionary rule applies, and the police conduct falls outside the good faith exception to the exclusionary rule. Therefore, the trial court abused its discretion in admitting the evidence seized during Shotts's arrest. Consequently, we reverse Shotts's conviction.

    In the Matter of the Involuntary Term. of the Parent-Child Rel. of E.D.; Sabrina Daniel a/k/a Sabrina James v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc. - "After balancing the substantial interest of Mother with that of the State, and in light of the minimal risk of error created by the challenged procedure, we conclude that, under the facts of this case, the trial court did not deny Mother due process of law when it denied
    counsel’s request to continue the termination hearing. Affirmed. "

    In Re: T.D.S. is a 10-page per curiam decision re a Notice of Expedited Appeal filed by the Indiana Department of Child Services, LaPorte County, pursuant to Indiana Appellate Rule 14.1 challenging the trial court’s placement order for T.D.S., a child in need of services (“CHINS”). The COA denies DCS’s request for relief.

    In Re the Guardianship of A.L.C. is a 30-page, 2-1 opinion involving temporary and permanent guardianship, as well as grandparent visitation.

    NFP civil opinions today (2):

    Katrina L. Snow and Christina M. Wright v. BR Associates, Inc. and Sidal, Inc. (NFP)

    Betty McCord v. Kimble Glass (NFP)

    NFP criminal opinions today (5):

    Timothy Lee Pawson v. State of Indiana (NFP)

    James Delaney v. State of Indiana (NFP)

    William Slater v. State of Indiana (NFP)

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

    Kango Douglas v. State of Indiana (NFP)

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Ind. App.Ct. Decisions

    Courts - Law clerks may be quaking in their boots

    Above the Law has a long entry today headed "Clerks: Can't Go Home Again?," that includes this:

    Once upon a time, clerks were a hot commodity, wooed by major law firms with constantly increasing clerkship bonuses. The market-rate clerkship bonus rose to $50,000 for one clerkship, $70,000 for two clerkships, and $250,000 for Supreme Court clerks. But times have changed since 2007 -- and clerks, despite their general orientation towards the somewhat more recession-proof field of litigation, are not immune.

    Back in February 2008, we wrote about firms no longer welcoming back former associates who left their firms to clerk, contrary to past practice. We also covered the trend of firms imposing freezes on hiring clerks who didn't summer there.

    The bad news continues to roll in. More recently, we've heard reports of firms cold-offering clerks holding offers to return. Now we're hearing reports -- anecdotal, admittedly -- of firms outright rescinding offers to current clerks.

    [More] This ATL entry is also recommended.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Courts in general

    Law - "President Obama on Wednesday issued his first signing statement, reserving a right to bypass dozens of provisions in a $410 billion government spending bill even as he signed it into law"

    Updating this ILB entry from March 9th, headed "Don’t Rely on Bush’s Signing Statements, Obama Orders," and this March 10th entry, linking to President Obama's 2-page Executive Order on presidential signing statements, Charlie Savage of the New York Times reports today:

    WASHINGTON — President Obama on Wednesday issued his first signing statement, reserving a right to bypass dozens of provisions in a $410 billion government spending bill even as he signed it into law.

    In the statement — directions to executive-branch officials about how to carry out the legislation — Mr. Obama instructed them to view most of the disputed provisions as merely advisory and nonbinding, saying they were unconstitutional intrusions on his own powers.

    Mr. Obama’s instructions followed by two days his order to government officials that they not rely on any of President George W. Bush’s provision-bypassing signing statements without first consulting Attorney General Eric H. Holder Jr. In that order, Mr. Obama said he would continue the practice of issuing signing statements, though “with caution and restraint, based only on interpretations of the Constitution that are well founded.” * * *

    [A] majority of the challenged provisions are those allowing money to be reallocated to a different program only with the approval of a Congressional committee. Mr. Obama called the provisions “impermissible forms of legislative aggrandizement” and declared that while executive-branch officials would notify lawmakers of any reallocation, “spending decisions shall not be treated as dependent on the approval of Congressional committees.”

    David M. Golove, a law professor at New York University who specializes in executive powers, said the prerogatives invoked by Mr. Obama were relatively uncontroversial. Still, Mr. Golove said he was surprised by the scope and detail of the objections.

    “It reflects an executive branch that wishes to demonstrate publicly a commitment to upholding all of the president’s claimed constitutional prerogatives,” he said, “even when the intrusions are trivial or just a matter of infelicitous wording.”

    Here is the March 11th signing statement, via Whitehouse.gov.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to General Law Related

    Ind. Courts - More on: "More and more finding themselves in bankruptcy court"

    Updating yesterday's ILB entry on Judge Basil H. Lorch's busy federal bankruptcy court in New Albany, Andy Grimm has a report today in the Gary Post Tribune, headed "Economy boosts bankruptcy filings." Some quotes:

    HAMMOND -- There may be one growth industry in Northwest Indiana in these recessionary times. Bankruptcy lawyers are keeping busy, as the number of region residents seeking protection from creditors climbed 23 percent in the first two months of 2009.

    Statistics for the Northern District of Indiana Bankruptcy Court showed 2,158 people filed bankruptcy, compared to 1,752 over the same period last year. Filings in 2008 also were 25 percent higher than in 2007, continuing an upward trend in the number of bankruptcy cases that began after bankruptcy requirements were made more strict by changes to federal law passed in 2005.

    "The phenomenon at work is the economy," said Highland bankruptcy trustee Daniel Freeland, also a bankruptcy attorney. "People made the argument (before bankruptcy laws were reformed) that people were being irresponsible, but I don't think anyone would say that now.

    "I think people were just living within their means, at the time," he said. "They've lost jobs, or they're not laid off, they lost the overtime they had been counting on." * * *

    "I have never seen so many people walk away from their homes as I have in the last 18 months," Freeland said.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Indiana Courts

    Ind. Courts - More on "House overwhelmingly passes measure to elect jurists in St. Joe County"

    Updating this ILB entry from Feb. 13th, Ed Ronco of the South Bend Tribune has this story today. Some quotes:

    SOUTH BEND — Judge Michael Gotsch was elected to his post by voters. He knows what it's like to run for office. And he doesn't think it's the best way to select a judge.

    So there he stood Wednesday afternoon, speaking out against the measure at Century Center, as business and community leaders polished off sweet and sour pork with a vegetable medley at the weekly meeting of South Bend's Rotary Club.

    House Bill 1491 would increase judicial accountability to the public by making them more answerable to the voters, according to state Rep. Craig Fry, D-Mishawaka, the bill's sponsor.

    The measure passed the House on Feb. 12 by a vote of 88-3.

    Right now it's parked in the Senate Judiciary Committee, which hasn't taken action on it. * * *

    Right now, St. Joseph and Lake counties use a system called "merit selection."

    A panel of community members selects candidates for the Superior Court bench and sends the names to the governor, who makes the final selection. Voters then decide every six years whether to keep the judges in office.

    Fry has said his bill, which would change only St. Joseph County's system, is designed to make judges more accountable to the public.

    But Gotsch, a Democrat who as a Circuit Court judge is popularly elected, said even though he doesn't "have a dog in the fight," he's still against electing Superior Court judges. * * *

    Gotsch urged those at the meeting to organize petitions in favor of keeping merit selection in St. Joseph County and contact state legislators.

    [Rep. Craig Fry, D-Mishawaka, the bill's sponsor], meanwhile, said it's only natural that the local judiciary would oppose his bill.

    "It's self-preservation for them," Fry said. "They've got a lifetime appointment in St. Joseph County. Why wouldn't you think they'd object to having to go before the public? You've got to keep remembering that 90 counties in Indiana elect judges. All but two of the 90 (counties) are partisan elections. We're offering up a nonpartisan election.

    "Why don't you ask the public what they think?" he said. "You'll get a resounding yes."

    ILB: As noted at the end of the ILB's Feb. 13th entry, "In late Oct., 2008, the interim legislative Commission on Courts, which Senator Bray chairs, voted in favor of expanding merit selection in Lake County and retaining merit selection in St. Joe County." Bray also chairs the Senate Juidiciary Committee.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Indiana Courts

    Ind. Courts - "State Supreme Court rebukes Felts for DWI: Reprimand ends punishment for Circuit judge"

    Rebecca S. Green's report this morning in the Fort Wayne Journal Gazette begins:

    The Indiana Supreme Court issued a public reprimand of Allen Circuit Court Judge Thomas J. Felts in connection with a July drunken-driving arrest.

    The reprimand, issued Wednesday, closes the disciplinary action against Felts, who remains on probation in connection with his Indianapolis arrest.

    Felts inadvertently backed into a marked Indiana Capitol Police cruiser after he was pulled over in downtown Indianapolis for driving his Lincoln at high speed and failing to signal a turn. The Capitol Police are a division of the Indiana State Police.

    The judge failed a field sobriety test, and a portable Breathalyzer measured his blood-alcohol level at 0.14 percent. A subsequent blood test found his blood-alcohol level to be 0.19 percent, more than twice the legal limit. He was arrested on charges of public intoxication and operating a motor vehicle while intoxicated.

    As the Allen Circuit Court judge, Felts handles most of the alcohol-related cases in Allen County. He has handled other cases since his arrest.

    In January, the Indiana Commission on Judicial Qualifications filed charges against Felts before the Indiana Supreme Court, accusing the judge of judicial misconduct by failing to uphold the standards of the judiciary and maintaining high standards of conduct.

    See the ILB entry from yesterday, including the link to the Supreme Court order, here.

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Courts - "Girl sues Lebanon Schools for right to wear tuxedo to prom" [Updated]

    So reads the headline to this story by Andy Gammil, on the lengthy front-page of today's Indianapolis Star. The story begins:

    A 17-year-old Boone County girl has sued Lebanon Schools after her high school principal told her she could not wear a tuxedo to her prom and would have to wear a dress instead.

    The Lebanon High School senior, whose name is not revealed in the lawsuit, is a lesbian and does not wear dresses because she thinks they express a sexual identity that she does not embrace, court filings said.

    Her case illustrates a legal battleground over the limits of student expression that has emerged in the past decade. It also raises allegations of discrimination on the basis of her gender.

    School attorney Kent Frandsen said the district has had its policy on prom attire for years and hadn't reviewed it because it had never been challenged. The district is exploring whether it must legally allow a girl to wear a tuxedo to the prom.

    But, Frandsen said, the district also could conclude that allowing her to do so might be the right thing to do anyway.

    The girl's attorney at the American Civil Liberties Union of Indiana has asked a federal court to issue an injunction requiring the school to let her wear the same formal attire to the prom as male students.

    In the filing, ACLU of Indiana Legal Director Ken Falk argued that the district's policy violates the U.S. Constitution.

    "From a First Amendment standpoint, wearing a tuxedo makes an affirmative statement about her own sexuality," Falk said. "Students have free-speech rights."

    He said the district's policy to allow only boys to wear tuxedos violates the federal Title IX law, which prohibits discrimination on the basis of gender in schools.

    The girl's lawsuit says the school's regular dress code does not contain any gender-specific requirements and that she and many other girls routinely wear pants to school.

    But the school said her only option for the prom was to wear a dress and that only boys could wear tuxedos, the lawsuit said.

    Later in the story:
    It's not the first time the issue has arisen in Indiana.

    In 1999, an Arlington High School senior sued after he was told he could not wear a dress to the prom. A federal judge in that case sided with the student and ordered the school to allow him to wear a dress to the prom.

    In 2006, a transgender student in Gary was turned away at the door of West Side High School's prom because the male student was wearing an evening gown. That student, Kevin "K.K." Logan, sued in federal court, and his lawsuit is pending. The lawsuit claims a female student at West Side attended the same prom in a tuxedo.

    The Star has included a link to the 6-page lawsuit, filed March 10th in federal court in Indianapolis.

    [Updated at 10 AM] Today's story ends with a quote from a student who helped organize the prom:

    "What bothers me is that you won't let someone wear something conservative, but you'll let girls go with see-through parts of their outfits or something short," Jaggers said. "A tuxedo's not hurting anybody. Why should it matter?"
    This might be a good place for this quote in the Salt Lake Triibune:
    Last Sunday on ABC News' "This Week with George Stephanopoulos" conservative pundit and Washington Post columnist George Will said concerning the Republican Party and gays: "Time is going to solve some of these issues, the gay rights issue, for example. For the rising generation of Americans, being gay is like being left-handed; it's boring and uninteresting."

    Posted by Marcia Oddi on Thursday, March 12, 2009
    Posted to Indiana Courts

    Wednesday, March 11, 2009

    Ind. Courts - Star story on Hawkins suspension has really poor headline [Updated]

    The Indianapolis Star has just posted online a brief story by Jon Murray on the suspension of Marion Superior Court Judge Grant Hawkins. (The ILB posted its report a few minutes ago.)

    Unfortunately, the Star's poorly written headline currently reads: "Marion Superior court judge suspended 60 days without pay in rape case."

    [Updated 3/12/09] The headline still remains to the link listed above, but an updated version of the story from today's paper is headed "Indiana Supreme Court suspends Judge Grant Hawkins: Hawkins had faced removal after office botched order to free man." Some quotes from the latter part of the story:

    The state Supreme Court's opinion assigns primary responsibility for the delays in the Buntin case and several others to Broyles. Now retired, Broyles admitted judicial misconduct charges in October and agreed never to serve in a judicial capacity again.

    "Judge Hawkins relied on Commissioner Broyles to his detriment, trusting her to perform duties she failed to perform," the opinion says. "A suspension from office without pay . . . is a significant blemish on a sitting judge's reputation."

    In pushing for a longer suspension, Chief Justice Randall Shepard -- joined by Justice Frank Sullivan Jr. -- wrote that "the evidence reflects a series of failures under circumstances that afforded many reminders and alerts. These did not avail because Judge Hawkins' office was a place where family phone calls went unheeded and letters went to the wastebasket."

    Last year, Hawkins implemented significant changes to file-keeping procedures in his court, improvements that he said likely would prevent lapses such as Buntin's file going missing for months.

    The judge also came under fire for further delays in the processing of the Buntin order after his file was found in March 2007.

    But the Supreme Court's opinion says the commission failed to prove some of the charges leveled against Hawkins based on the handling of Buntin's file and its contents by his staff members.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Indiana Courts

    Ind. Courts - Judge Grant W. Hawkins receives a suspension without pay for a period of 60 days

    A 27-page, 3-2 decision with four opinions, issued late this afternoon, in the case of In the Matter of: the Hon. Grant W. Hawkins, Judge in the Marion Superior Court and the Hon. Nancy Broyles, Commissioner in the Marion Superior Court, the main opinion concludes on p. 22:

    In the current case, a majority of this Court concludes that the appropriate discipline lies between a public reprimand and removal from office, i.e., a period of suspension from office without pay. However, the justices of this Court hold divergent views regarding the appropriate duration of such suspension for Judge Hawkins, as more fully expressed in the attached separate opinions. Because a majority of the Court favors a suspension without pay for a period of at least sixty (60) days, that is the effective disposition reached today in this matter.

    Disposition: On the basis of the foregoing and the views expressed below, the Court orders that the Respondent, Grant W. Hawkins, shall be suspended from the office of Judge in the Marion Superior Court without pay for sixty (60) days commencing the first day following the date of this opinion. The suspension shall terminate and the judge shall automatically be reinstated to office at 12:01 A.M. on the sixty-first day following the date of this opinion. The costs of this proceeding are assessed against, and accordingly should be equally shared by, Respondents. The Special Masters appointed in this case are discharged, and we thank them for their conscientious service in this matter.

    Dickson, Justice, concurring [and proposing a 60-day suspension without pay];
    Shepard, Chief Justice, dissenting [and agreeing to Justice Sullivan's assessment of a one-year suspension];
    Sullivan, Justice, dissenting [arguing for a one-year suspension];
    Boehm, Justice, dissenting [arguing for a 30-day suspension, in which Justice Rucker concurs].

    This from CJ Shepard's dissent at p. 24-25:

    A suspension of sixty days without pay is not an adequate sanction for a judge whose disorganization and indifference caused a man wrongly to sit in prison for two years. * * *

    The question dividing the members of this Court is whether Judge Hawkins may be presented to the public as someone who can be relied on to take better care of litigants going forward. His approach to defending the present charges helps answer that question and the answer is not comforting. Beyond all the actions that so shocked the trial judges hearing the witnesses, Judge Hawkins has chosen to argue to us that Mr. Buntin isn’t necessarily innocent. Suggesting that perhaps there wasn’t much injustice in Buntin’s two-year wait in prison for a ruling is not the sort of defense one ought to hear from a judicial officer, but it complements Judge Hawkins’ proposal that the appropriate sanction might be time off with pay.

    This from Justice Sullivan's dissent at pp. 26-27:
    My analysis of Judge Hawkins’s misconduct, standing alone, is that it warrants a two year suspension from office. He did not organize or manage his court to assure prompt and conscientious attention to the liberty interests of incarcerated persons in general or to Mr. Buntin in particular. He impeded the Commission’s investigation of his case and it is the considered
    judgment of the Masters that he be removed from office.

    But, in my view, Judge Hawkins’s misconduct does not stand alone. His sanction should be mitigated by his years of exemplary service to the bench and bar of this State.

    Balancing the mitigating circumstances against the weight of the misconduct itself, I would suspend Judge Hawkins from office for one year.

    For earlier ILB entries, check this list.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Courts - Supreme Court decides two attorney disciplinary cases today

    In the Matter of Kevin W. Marshall; and In the Matter of C. Jerome Smith is an 8-page per curiam decision:

    We find that Respondents Marshall and Smith engaged in attorney misconduct by failing to promptly pay a client the portion of a jury award to which the client was indisputably entitled. For this misconduct, we conclude that Respondents should receive a public reprimand. We find the Commission has not met its burden of proof with respect to other charges of misconduct. * * *

    We find that Respondents violated Professional Conduct Rule 1.15(b) (2004) by failing to promptly release to Client funds indisputably owing to him. For this misconduct, the Court imposes a public reprimand.

    In the Matter of: James R. Recker is a 10-page, 4-1 per curiam decision. The Court writes:

    The primary issue in this case is whether Respondent and attorney Laura Paul ("Paul") were "associated in a firm" at the time of the relevant events such that Paul's client was also deemed to be Respondent's client. * * *

    The Court first addressed the issue of whether an office-sharing arrangement constituted a firm under the Professional Conduct Rules in Matter of Sexson, 613 N.E.2d 841 (Ind. 1993). * * *

    While some of the factors the Court found relevant in Sexson are present in the current case, there are key differences. Although the common space, staff, letterhead, and phone line might in some circumstances tend to give the impression that Respondent and Paul constituted a firm, the attorneys did not choose or have any say about those trappings, which were provided by the Putnam County courts. They did not hold themselves out for business of any sort to members of the public at this location. Rather, they worked at this location only on court-assigned cases, and each attorney was assigned cases only from the court that retained that attorney. Although the Commission and Respondent disputed how much access each attorney had to the other's client files, the hearing officer resolved this by finding that a secretary provided by the courts kept all the files in a central location and released a file only to an attorney who had appeared in that case.

    Based on these findings, the hearing officer concluded that Respondent and Paul were not deemed to be members of a law firm while providing indigent defense services in Putnam County, and thus Respondent did not owe a duty to XY when he communicated information he had learned from Paul to Holder.

    The Court finds the hearing officer's findings supported by the evidence and agrees with his conclusion. There is no uniform system of providing indigent defense in Indiana's 92 counties. For example, indigent defense in Marion County is provided by the attorneys employed by the Marion County Public Defender Agency. In some counties, attorneys providing such services may be considered to comprise one law firm. Under the Putnam County system, however, the public defenders simply share office space and support services provided for their use by the courts. They are not deemed to be members of a firm, at least for the purpose of the rule that information acquired by one lawyer in a firm is attributed to another. * * *

    The Court concludes that Respondent did not commit the attorney misconduct charged and therefore enters judgment in his favor. The hearing officer appointed in this case is discharged. * * *

    Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
    Sullivan, J., dissents with separate opinion. [which begins, on p. 8 of 10] The central issue in this case is whether the Putnam County public defender's office is a "firm" within the meaning of the Indiana Rules of Professional Conduct. The Court agrees with Respondent that County public defender's office is not a “firm” and, therefore, Respondent had no ethical obligation to keep confidential the secrets of the client of another public defender, Ms. Paul.

    I respectfully dissent. I believe that the Court employs an overly technical, indeed, near-sighted, definition of "firm" and in doing so loses sight of the principal interest at stake here: the inviolability of client confidences. And I need hardly mention that that interest is presented in particularly stark relief here as the client was placed in jeopardy of his physical safety by Respondent's actions.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Indiana Courts

    Ind. Courts - Allen Circuit Court Judge Thomas J. Felts receives public reprimand

    The 5-0, 2-page order, In the Matter of the Hon. Thomas J. Felts, concludes:

    Respondent and the Commission have agreed that driving with a blood alcohol concentration of .15 constitutes a violation of Canons 1(A)1 and 2(A)2 of the Code of Judicial Conduct, and that Respondent has violated these Canons. The parties have also agreed that Respondent has cooperated with the Commission throughout these proceedings, and that the appropriate sanction under the circumstances of this case is a public reprimand. The Court agrees with the parties.

    Accordingly, Thomas J. Felts, Judge in the Allen Circuit Court, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against Respondent.

    For background, see this list of ILB entries.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Decisions - Three non-Indiana 7th Circuit opinions noted today [Updated]

    Howard Bashman of How Appealing has remarked on three 7th Circuit, non-Indiana opinions today, one quoting Yoda, one involving a "human shield," and one on the tax handling of a CEO's salary.

    [Updated] But, thanks to a reader, the ILB can point out that Mr. Bashman missed yesterday's 7th Circuit opinion, involving the State of Wsconsin Teamster Joint Council, that began:

    If there’s any truth to the rumor that Jimmy Hoffa has been resting for the last 33+ years somewhere beneath the end zone at Giants Stadium (or “The Meadowlands” as the New York Jets prefer) in East Rutherford, New Jersey, this case, involving political in-fighting at a Teamster’s Local in Wisconsin, might cause his body to stir just a bit.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Ind. (7th Cir.) Decisions

    Courts - European Court of Justice ruling over secret list of banned aircraft hand luggage

    From the Times Online, reported by David Charter, Europe Correspondent:

    A tennis player today won his case at the European Court of Justice against airport security staff who believed that his racquets posed a terrorist threat and threw him off a flight.

    Judges ruled that the unpublished European Union register of hand luggage restrictions could not be enforced because passengers had no way of knowing exactly what was prohibited.

    The EU list shows that racquets are not specifically banned from the cabin. However, it contains a catch-all prohibition on "any blunt instrument capable of causing injury". An over-eager airport official might still argue that racquets fall into that category. * * *

    It highlighted what one legal adviser called the "fundamental absurdity" of European anti-terror regulations from 2003 that outlawed a range of possible weapons from the aircraft cabin — but were not made public for security reasons.

    The EU eventually published the secret list last summer, finally explaining why passengers had found that skateboards, golf clubs and fishing roads were not allowed in the cabin. * * *

    Ignasi Guardans, a Spanish MEP who campaigned on behalf of Mr Heinrich, said: "It was utterly illogical to produce a list of banned objects from cabin baggage yet not tell anyone what they were."

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Courts in general

    Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

    For publication opinions today (2):

    In Gloria J. Hayes v. The Trustees of Indiana University, a 25-page opinion, in an employment termination case, Judge Darden writes:

    Hayes asserts that the trial court erred in granting the University's motion for summary judgment. Specifically, she argues that she was entitled to assert her “bumping rights” pursuant to the Human Resources Manual; that the Indiana Tort Claims Act (the “Act”) does not apply; that she is entitled to judicial review; and mandate is the appropriate remedy. * * *

    Breach of contract. Hayes contends that summary judgment on her breach of contract claim was improper because the Human Resources Manual was a contract which conferred “bumping rights” upon her. We disagree. * * *

    In Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 722 (Ind. 1997), the Indiana Supreme Court “re-affirm[ed] the vitality of the employment-at-will doctrine in Indiana and the general rule that adequate independent consideration is necessary to convert an at-will relationship into an employment relationship requiring an employer to discharge an employee for good cause.” It further declined “to construe employee handbooks as unilateral contracts and to adopt a broad new exception to the at-will doctrine for such handbooks.”

    Given our Supreme Court's holding in Orr, we decline to find that the Human Resources Manual constituted a contract under which Hayes could maintain a breach of contract claim. Additionally, Hayes admitted that she “did not have a signed contract” with the University and agreed that she was an “employee at will.” * * *

    We conclude that the University was entitled to summary judgment as a matter of law on Hayes' breach of contract claim as she was an at-will employee, and the Human Resources Manual did not constitute a contract. As we do not find that the Human Resources Manual contractually bound the University, we need not address whether Hayes' purported “bumping rights” under the Human Resources Manual were breached.

    Indiana Tort Claims Act . Hayes asserts that the trial court erred in finding that her claim for breach of contract is subject to the notice requirement of the Act. She argues that “the notice provisions of the Tort Claims Act have no application to” her case as it “is not only captioned a claim for breach of contract, but also, is substantively a claim for breach of enforceable contractual obligations . . . .” * * *

    Hayes cannot maintain a breach of contract claim against the University as she did not have a contractual relationship with the University. Thus, any possible tort claim she may have related to the RIF would sound in tort. See Burke, 709 N.E.2d at 1042 (holding that the employee-at-will's claim sounds in tort). Accordingly, it was incumbent upon Hayes to file notice of her claim within 180 days after her loss. This she did not do; therefore, any possible tort claim against the University is barred.

    Judicial Review. Hayes contends that the trial court improperly found that she was not entitled to judicial review. Specifically, she argues that “the fact that [the] AOPA does not provide a statutory means of seeking judicial review of [the] University's actions does not mean the University is immune from judicial review.” * * *

    Here, the Legislature specifically excluded the University from the AOPA's application. Thus, it clearly intended to exclude the actions of the University from judicial review. We therefore find that the trial court properly granted the University's motion for summary judgment on Hayes' complaint for judicial review.

    Mandate. * * * Contrary to Hayes' assertion, we cannot say that either the University's decision to eliminate Hayes' position pursuant to a reduction in force or its classification of Hayes' position was made in a quasi-judicial capacity. Accordingly, the University's decisions regarding these matters are not subject to a mandate order.

    In Bruce Barkwill v. The Cornelia H. Barkwill Revocable Trust , a 12-page opinion, in a dispute between two brothers re their monthr's trust, Judge Barnes writes:
    Bruce Barkwell appeals the trial court’s conclusion that the 2006 revision to his mother Cornelia Barkwell’s trust was valid. We affirm.

    Issue. We consolidate and restate the issue as whether a presumption of undue influence attached to the 2006 revision to Cornelia’s trust. * * *

    Clearly, this is an issue that will garner continued attention as the baby boomer generation ages. We maintain that courts must proceed with caution in analyzing these situations and that an automatic presumption that any adult child who assists an aging parent is presumed to be in a dominant role and exert undue influence over that parent’s decisions is ill-advised. We caution that love, attention, and occasional assistance provided by an adult child typically and naturally arise from a sense of filial duty. It seems unreasonable for our courts to rely exclusively upon care, compassion, or generosity by an adult child for their ailing parent and then render such actions suspect. These relationships must be carefully examined in light of the surrounding circumstances before any conclusions regarding that child’s dominance and influence be made.

    Conclusion. The trial court’s findings and conclusions are not clearly erroneous. No presumption of undue influence attaches to Jeffrey’s relationship with his mother. The trial court’s conclusion that Cornelia’s 2006 trust revision is valid is supported by the evidence. We affirm.

    NFP civil opinions today (4):

    In Re: The Paternity of G.H.W.; H.A.F. v. Y.K.W. (NFP) - "The trial court did not abuse its discretion in modifying custody of G.W. to joint physical custody between Mother and Father. Additionally, that part of the trial court’s order regarding Mother’s potential move to Texas should not be construed as absolutely requiring a change of custody should Mother want or need to move at any time in the future. We reverse the trial court’s elimination of Father’s child support obligation and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded."

    Smitty's Painting, Inc. v. Review Board of the Dept. of Workforce Development, and Raymond A. Sage (NFP) - "Smitty’s failed to demonstrate good cause that additional evidence should be accepted by the Review Board or good reason why such evidence could not have been introduced to the ALJ. Therefore, the Review Board did not abuse its discretion when it refused to accept Smitty’s additional evidence. Affirmed. "

    James Bedree v. Daniel E. Serban (NFP) - "In the present case, the hearing officer entered a purported final order on April 10, 2008, when he granted Serban’s motion and dismissed Bedree’s case. By doing so, the hearing officer overstepped the boundaries of his statutorily defined duties and grant of power. See Ind. Code § 33-23-5-8(2) and -9(a). Moreover, Serban does not assert, and we find no evidence, that the hearing officer was sitting as a judge pro tempore or special judge so as to be granted the power to enter a final appealable order pursuant to the exception contained in Ind. Code § 33-23-5-8(2).

    "Based upon the foregoing, we conclude that the trial court erred by denying Bedree’s motion to vacate the order to dismiss. Accordingly, the trial court’s order of May 5, 2008, denying Bedree’s motion to vacate the order to dismiss is reversed."

    Thomas Lee Keller and Shirley Jean Rohrs v. Daniel Keller (NFP) - " Tom and Shirley raise one issue, which we revise and restate as whether the trial court abused its discretion in its Order of Sale Procedure issued September 3, 2008, when it appointed Oberlin Real Estate and Auctioneers, Inc. (“Oberlin”), to conduct the public auction of the family farm. On cross appeal, Dan raises one issue, which we revise and restate as whether he is entitled to receive appellate attorney fees because of Tom and Shirley’s substantive bad faith. We affirm. "

    NFP criminal opinions today (7):

    Jessica Caperton v. State of Indiana (NFP)

    Arlene Ambrose v. State of Indiana (NFP)

    Gary McGuire v. State of Indiana (NFP)

    Jeff Kuhn v. State of Indiana (NFP)

    Michael K. Lindsey v. State of Indiana (NFP)

    Samuel Lonnie Helton v. State of Indiana (NFP)

    Steve Pigg v. State of Indiana (NFP)

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Ind. App.Ct. Decisions

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

    In Howard A. Allen Jr. v. Buss (SD Ind., Judge Tinder), a 27 page opinion, Judge Williams writes:

    In 1988, consistent with a jury’s verdict and sentencing recommendation, the Marion Superior Court in Indiana sentenced Howard A. Allen, Jr. to death by lethal injection for the murder and robbery of Ernestine Griffin. Since then, Allen has been asking the Indiana state courts to consider his claim that he is mentally retarded and therefore should not be executed. First, he sought relief when Indiana banned the execution of mentally retarded persons in 1994, but the Indiana courts held that the new statute did not apply retroactively to Allen. Instead, the state trial court, without holding a hearing, considered his mental retardation as a mitigating factor and found it did not outweigh the aggravating circumstance of his crime. In 2002, after the Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304 (2002), which categorically banned the execution of the mentally retarded, Allen again sought relief from his execution. But the Indiana Supreme Court determined that because Allen had already litigated his claim that he was mentally retarded as a mitigating circumstance, he would not be allowed to relitigate his Atkins claim. We think this decision is contrary to the Supreme Court’s holding in Atkins, which recognized that there is a difference between using mental retardation as a mitigating factor and categorically excluding mentally retarded persons from the death penalty altogether. Because Allen has presented evidence that he is mentally retarded, we vacate the district court’s denial of Allen’s habeas petition and remand the case to the district court for an evidentiary hearing to address whether Allen is mentally retarded under Indiana law.

    In light of our standard of review on habeas claims, we reject Allen’s remaining two arguments. Allen maintains, pursuant to the Supreme Court’s opinion in Eddings v. Oklahoma, 455 U.S. 104 (1982), that he should have received a new penalty phase hearing before a jury and that the sentencing court ignored some of his mitigating evidence. Because Allen did not raise the first argument in the Indiana courts, we find that he procedurally defaulted this claim, which precludes us from reaching its merits. As to his claim regarding mitigating evidence, the sentencing court’s order does not make clear that it ignored Allen’s evidence rather than choosing to give it little weight so we are constrained by the Indiana Supreme Court’s finding that the trial court considered the evidence, which is not objectively unreasonable. Allen also claims that his statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and were improperly admitted at trial. However, he fails to establish that the state court’s adjudication of his Miranda claims resulted in a decision that was contrary to, or an unreasonable application of, Supreme Court precedent, or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) & (2). For these reasons, we affirm the judgment of the district court on Allen’s Eddings and Miranda claims. * * *

    The judgment of the district court is AFFIRMED in part and REVERSED in part. We REMAND the case for further proceedings consistent with this opinion.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Ind. (7th Cir.) Decisions

    Ind. Courts - "Vigo County judge connecting to jail with video system"

    Howard Greninger reports today in the Terre Haute Tribune-Star in a story that begins:

    With a touch of his finger, Vigo County Judge Michael Lewis can swing a small courtroom camera toward an attorney, who can see and respond to an individual housed inside the Vigo County Jail.

    Lewis can then return the camera’s focus back on the incarcerated individual from a control on his judicial bench in Vigo County Superior Court Division 6.

    The process is video arraignment, and Lewis is the first, and so far only, judge in Vigo County to routinely use it.

    “We do it for initial hearings, initial probable cause hearings and further court proceedings where all we are doing is setting trial dates,” Lewis said. “If it is something involved where the defendant is going to have to testify, or have the defendant talk and an attorney’s presence is necessary, I bring them over” to the court from the jail.

    The system was installed in the courtroom in early February, but has been in regular use for the past two weeks. Lewis said video arraignment allows better security and it reduces the number of correctional officers required to walk individuals from the jail to the adjacent county courthouse.

    As an example, Lewis had 36 cases scheduled for court proceedings on Tuesday. Without the video system, at least nine of the cases would have required bringing nine people on a “chain gang” to the courtroom.

    “We only needed two live on the chain,” Lewis said, “and had seven on video.”

    The judge said that with the new security measures, “We don’t have family members popping up,” attempting to come in contact with the incarcerated or possibly give them some type of item, which is not lawful.

    Scott Swan, information technologies director for Vigo County, said the system, including installation labor, cost about $10,000, plus nearly $1,000 for two flat-screen televisions. One unit is a 42-inch TV viewed by the public in the courtroom during a video arraignment. The second, smaller screen is used by the judge.

    Vigo County Sheriff Jon Marvel paid for the system from his departmental budget. Marvel said if he had funding, he would also place video arraignment in the Division 5 courtroom.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Indiana Courts

    Courts - "Obama’s Court Nominees Are Focus of Speculation"

    From a story today in the NY Times, reported by Neil A. Lewis:

    WASHINGTON — President Obama will soon begin naming a small stream of nominees to the federal appeals courts, administration officials said, a step that will provide the first signs of how much he intends to impose any ideological stamp on the nation’s judiciary.

    White House lawyers have compiled lists of likely candidates for vacancies on several of the 12 regional appeals courts, notably those based in Richmond, Va., and New York. * * *

    The earliest setting for that question to be played out is likely to be the United States Court of Appeals for the Fourth Circuit, based in Richmond, which appears on the verge of stark change. Retirements on the 15-member court have left it divided with a slim 6-to-5 majority of Republican-appointed judges. That means Mr. Obama has four vacancies to fill and the potential to drastically reshape the court, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina. * * *

    Because Republicans have controlled the White House for all of the last 28 years except the eight years of the Clinton presidency, more than 60 percent of the judiciary is made up of Republican-nominated judges.

    The result is Republican control of eight of the regional appeals courts; Democrats have a majority in two circuits, the Second and the Ninth, based in San Francisco. The Third Circuit, based in Philadelphia, is split 6 to 6, with two vacancies.

    Arthur Hellman, a professor at the University of Pittsburgh law school who is an authority on the circuit courts, said reliable studies regularly demonstrated that the Republican-appointed judges had moved the nation’s courts in a more conservative direction in several areas.

    They tend to be more restrictive of abortion rights, less accommodating to criminal defendants and sharply skeptical of expanding federal authority at the expense of the states. * * *

    The effort to move rapidly to select appeals court judges has been coordinated by Gregory S. Craig, the White House counsel, whose expanded office took the lead on the issue from the Justice Department, which has yet to have many of its senior officials confirmed.

    In a closed meeting on Capitol Hill two weeks ago, Mr. Craig told Democratic senators that the White House would rely on their recommendations to fill the district courts. But he said that while Mr. Obama would welcome their advice, he warned that filling the appeals courts was largely a presidential prerogative, participants said.

    The 7th Circuit is not mentioned in the story. I believe there is only one vacancy on the 7th Circuit, per this Oct. 13, 2008 item.

    Note: This is a different matter, but while checking the 7th Circuit site, I saw this notice for a Bankruptcy Judge position.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Courts in general

    Ind. Law - "Photo shoot not required for gun permit"

    A story today in the Evansville Courier & Press, by Gavin Lesnick, reports:

    The Evansville Police Department will make it more clear to gun permit applicants that having a photograph taken is an optional part of the process and not required by state law, officials said Tuesday.

    A recent complaint from local gun rights advocate Jim Tomes about the photographs spurred the agency to review its policies.

    "We will make sure up front that people understand it's optional," said Police Chief Brad Hill, adding the photo never has been required.

    Tomes, a Posey County resident who serves as director of the 2nd Amendment Patriots group, said he was told it was mandatory in a phone call he placed recently to the Police Department's records room.

    Assistant Police Chief Rob Hahn acknowledged there may have been the appearance the photos were required, although he noted officials were quick to investigate the issue as soon they were notified.

    Directions given to the records room staff when the policy was implemented last year show the photos were not required, although it stated they would be taken unless the applicant objected.

    "Effective immediately, we will be taking photographs of all persons applying for a gun permit," a Nov. 19 e-mail from Sgt. Darren Sroufe reads. "The photos will be taken when we fingerprint the person."

    Later, the e-mail added, "If a person refuses to have their photograph taken, we will not force the issue."

    A new e-mail sent out Thursday offered a different description.

    "We will request to take photos of all gun permit applicants when they are fingerprinted unless they refuse," the e-mail reads. "This is an optional request. ... We will not refuse to process a gun permit if they refuse to allow the photo to be taken." * * *

    "What a revelation," Tomes said. "In four days, it went from being state law to now it's an option."

    Even if that is made clear, Tomes said, it's still a problem. He said it showed the department is "setting up its own rules" when it should be following the state code.

    "It should not be an option," he said. "To be an option, it would have to be a requirement. And it's not a requirement. ... We have laws written in this state for a reason."

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Indiana Law

    Environment - More on "EPA Orders Utilities to Self-Report Coal Ash Impoundment Problems"

    Updating this ILB entry from yesterday, Rick Callahan of the AP reports today:

    INDIANAPOLIS – A federal review of the nation's coal ash storage sites includes 14 Indiana power plants where the byproduct of the state's reliance on coal for power is stored in a series of ever-growing ponds and landfills.

    Several utilities that own or co-own those 14 coal-burning plants must provide the Environmental Protection Agency with detailed descriptions of their coal ash storage sites and the history of spills and inspections at each one. * * *

    Most of Indiana's 14 power plants included in the EPA's request are located in the southern third of the state, where Indiana's coal reserves are concentrated.

    Coal-fired power plants provide about 95 percent of the state�s electricity. The large amount of resulting coal ash can pose a threat to drinking water and wildlife because it contains heavy metals and other toxic contaminants, said Jeffrey Stant, director of the Coal Combustion Waste Initiative for the Environmental Integrity Project.

    Stant, who works out of an office in Indianapolis, said his Washington, D.C.-based group wants an end to all wet disposal of coal ash, preferring instead that it be stored in landfills with proper liners to prevent it from entering ground water.

    Stant said the coal ash stored at Indiana's power plants is prone to damage from flooding because the plants were built near rivers to provide them with a source of cooling water. Some of those coal waste ponds are up to a half-century old, he said.

    "All these massive deposits of ash have been dumped right along rivers, immediately over flood plain aquifers. They're in flood plains. This is the worst place to put these ponds," Stant said. "The ash needs to be excavated and put in safer places, like in landfills with farther distances between the waste and the water table."

    Indiana ranked first in the nation in 2005 in the amount of toxic coal ash disposed of in its coal ash storage ponds, according to an Associated Press analysis of Energy Department data.

    That analysis, performed in January, showed that in 2005, Indiana utilities disposed of more than 2.27 million tons of coal waste in 13 such coal ash ponds. Ohio was second on that list with 2.19 million tons of coal waste disposed of in ponds in 2005.

    Duke Energy, Indiana's largest power provider, owns or co-owns five of the 14 Indiana plants the EPA wants information about.

    Here are earlier ILB entries on coal ash.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Environment

    Ind. Courts - "More and more finding themselves in bankruptcy court"

    Dale Moss of the Louisville Courier-Journal writes today on Judge Basil H. Lorch's federal bankruptcy court in New Albany. Some quotes:

    It was yet another busy afternoon in Lorch's federal bankruptcy court in New Albany. Lawyers and their clients about ran into one another as Lorch called case after case. This was a day for hearings on Chapter 13 bankruptcies, a decently humane way for people such as the woman above to try to regain the upper hand on their debts.

    Simply put, they agree to a not-necessarily-easy payment plan. They pay a third party -- a trustee -- who in turn makes creditors as happy as possible. In 17 years on the bench, Lorch has obviously come to know who seeks shelter under Chapter 13.

    We do.

    We get laid off or divorced or sick and/or our mortgage payments balloon. Or, like this businesswoman, enough customers stopped coming but expenses did not. Like that, usually, we are living beyond our means. We may be poor, but not necessarily. We sure figured bankruptcy was for somebody else.

    "Most of them just fall prey to our society's traps on occasion," Lorch said. "They're not con men."

    Charles Guilfoyle, a lawyer in Jeffersonville, said several crestfallen clients have worried aloud that so-and-so will find out about their bankruptcy. In fact, so-and-so is bankrupt, as well.

    "I try to convince them they're not going to jail," Guilfoyle said. "They've not done anything wrong."

    It's no surprise that Lorch is busier this year than last. He was busier last year than the year before, as was seemingly every bankruptcy judge. Lorch expects the caseload to be about 60 percent higher in 2009 than it was in 2007. And if Congress agrees to empower bankruptcy judges to modify mortgages, people likely will flock still more to Chapter 13.

    Posted by Marcia Oddi on Wednesday, March 11, 2009
    Posted to Indiana Courts

    Tuesday, March 10, 2009

    Ind. Courts - Still more on: Training on new loan modification programs

    Updating this ILB entry from March 7th on the first of 30 training seminars on mortgage loan modification programs, NPR's All Things Considered today had a 17 minute report by Greg Allen titled "Missing Mortgage Notes Delay Some Foreclosures." Here is a quote from the accompanying text:

    The demand that banks seeking foreclosure "produce the note" is a cry that's gotten attention from housing activists and real estate attorneys across the country.

    For banks that own and service the loans they originate, finding the original paperwork is rarely a problem. But with loans that have been securitized — parceled with other mortgages and sold to investors — the original mortgage note can be elusive.

    Lawyer April Charney, who works with Jacksonville Legal Services in Florida, has become well-known as an expert on defending homeowners against foreclosures. She says asking the bank to produce the paperwork is just the beginning.

    She says lawyers who take the time to study the mortgage notes and the securitization agreements will almost always find deficiencies, and sometimes, fraud. "These loans are so tricked up by the Ponzi scheme that became the world of securitization and derivatives, that there is no owner to these loans," she says. "They just totally failed to comply with their contracts."

    Charney has a full caseload and she's been working to train a small army of lawyers through seminars across the country.

    The new world of securitized mortgages, she says, is layered and nuanced. Some courts, overwhelmed by a growing backlog of foreclosures, can even be hostile to attorneys who want to slow down the process.

    But in some cases, it's the judges who are beginning to ask probing questions of plaintiffs seeking foreclosures. In California, federal bankruptcy judge Samuel Bufford has written about some of the new issues courts must consider in foreclosure cases. "One of the problems I see … is I don't seem to have the right parties before the court," he says. "I've taken testimony … and found out that the owner of the mortgage is somebody else who has not shown up in court at all."

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Courts

    Ind. Courts - "Gov. Daniels fills Courthouse commission"

    From a Department of Natural Resources press release today:

    Gov. Mitch Daniels and Chief Justice Randall T. Shepard have announced the appointment of the Courthouse Preservation Advisory Commission that will advise county officials on caring for Indiana’s historic courthouses and provide recommendations on how they may be preserved.

    Gov. Daniels named Shepard to serve as commission chair and the following to fill positions as specified in the 2008 law: Ron Ross, Fort Wayne, as licensed architect; Fritz Herget, Indianapolis, professional engineer; Diana Hawes, Bloomington, architectural historian; Kathy Beumer, Randolph County, county commissioner member; Brad Bumgardner, executive director of the Parke County Community Foundation, local community foundation representative; and David Decker, Terre Haute, Association of Indiana Counties member.

    Ex officio members are Shepard, Dr. James A. Glass, director of the DNR Division of Historic Preservation and Archaeology; Marsh Davis, president of Historic Landmarks Foundation of Indiana; and David Terrell, executive director of the Indiana Office of Community and Rural Affairs. Shepard also will appoint a judge of a county, superior, or circuit court to the commission.

    “The commission will play an important role in increasing access to reliable information about how to preserve these important symbols of our communities,” Gov. Daniels said.

    Shepard said, “We anticipate providing such advice and building public awareness of the many possibilities for continued use and enjoyment of these distinguished landmarks.”

    Upon request, the commission will provide county officials with assessments of historic courthouse conditions, technical advice on rehabilitation projects to encourage appropriate preservation practices, recommendations on architectural and engineering plans for rehabilitation, and information concerning funding sources for such projects.

    The commission also will submit a report to the Indiana General Assembly by August 2011 that assesses the importance of preserving historic courthouses to the history, identity and economic revitalization of county seats and counties; investigates the need for rehabilitation, restoration, and maintenance of historic courthouses; studies the condition of such courthouses; and studies the needs of county officials in planning for the successful restoration, rehabilitation, and maintenance of historic courthouses.

    The commission’s first meeting is April 8, at 1:30 p.m., in conference room 5, Indiana Government Center South, Indianapolis.

    The law creating the Courthouse Preservation Advisory Commission is found at IC 14-21-4. It was put in place by a 2008 act, Senate Bill 176, and went into effect July 1, 2008. A noncode SECTION 7 of the Act provides:
    (c) Notwithstanding IC 14-21-4-5, as added by this act, initial appointments under subsection (b) must be made not later than August 1, 2008.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Courts

    Courts - "Judging . . . A Good Job, But Could it Be Safer?"

    The WSJ Law Blog has posted this entry.. A quote:

    A 2007 study by the Administrative Office of the Courts found 35 percent of California’s judges were threatened, with one-third of those threats considered “imminent.”

    Courtroom attacks seem “to be happening more and more, and I don’t know why,” said Los Angeles County Judge Ricardo Ocampo, who was a Compton prosecutor in 2001 when a defendant tried to shank him during a sentencing. Judges aren’t always the target: Two examples in recent years: In 2001, a child-molestation defendant shot a witness and her husband before killing himself at a Siskiyou County, Calif., courthouse. In 1993, a Northern California woman shot her son’s alleged molester in a Tuolomne County, Calif., courtroom.

    In spite of the risk, judges have little choice but to show up for work, said Judge Bernard Garber, a colleague of Fox’s at the San Joaquin County Superior Court.

    “I’ve been a judge for 25 years,” he said, “and let me say this: the day I’m afraid to take the bench is the last day I’ll take the bench. You can’t be afraid. You just have to have faith in the system.”

    Some judges have even taken protection in to their own hands. According to the story, Tehama County, Calif., judge Richard Scheuler packs a .380 pistol under his robe.

    “Why wouldn’t you?” said Scheuler during a telephone interview Monday. Scheuler’s predecessor in the courts was shot at with a 12-gauge shotgun in 1985 by a litigant. The shot missed.

    “If that guy had tried to come over the bench to me,” Scheuler said, referring to the Stockton incident, “he would’ve been looking down the barrel of a .380.”

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Courts in general

    Not Law - Evansville C&P reporter Bryan Corbin leaves paper

    There are certain Indiana reporters whose stories I always look for. Bryan Corbin of the Evansville Courier & Press certainly has been one of them. A top notch reporter, I particularly followed his weekly summing up of the General Assembly activities. Today I searched the paper for his name and found only this story:

    Nineteen years is a long time to do anything, and that's how long I've been a working journalist at Indiana newspapers.

    It ended Friday. I am leaving the Courier & Press to take a media-relations job in Indianapolis.

    You've heard how the economic meltdown has hit the newspaper industry especially hard. Newspaper companies' revenues have fallen off a cliff, forcing some papers to make massive layoffs and others to close.

    Seeking a safe employment harbor in the economic storm is part of my reason for leaving my longtime profession. But I've also wanted to find a new challenge through which I could serve the public in a different way. * * *

    Thanks to the legislators, attorneys, court staff, judges and prosecutors who went the extra mile to explain how our legal system works. Judge Wayne Trockman, Judge David Kiely, Vanderburgh County Prosecutor Stan Levco and Deputy Prosecutor Donita Farr were always generous with their time. Special thanks to the late attorney Cole Banks, who was interviewed by this newspaper many times as a legal and political analyst. Thanks to you who read my articles and columns, in print and online, and took the time to e-mail, call or even drop a handwritten letter in the mail. The compliments and complaints all were appreciated.

    Having now changed careers, I'm rooting for my former colleagues who remain in the newspaper business, but the road ahead for them is very tough. Now more than ever, society needs newspaper journalists, since it is they — not TV, not bloggers — who primarily hold politicians, bureaucrats and powerful institutions accountable to the public.

    If you want your daily newspaper to continue to be around to perform that vital watchdog role, then you should not only subscribe, you should also patronize those businesses that advertise in the newspaper and on its Web site. Newspaper viability is crucial not just to the future of an individual company but to the preservation of a free society.

    So in looking back, I wish each of you in Southwestern Indiana the best during the rocky months ahead. Thank you for allowing me the privilege of sharing your stories.

    And thank you, reporter Bryan Corbin.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to General News

    Ind. Gov't. - Local government revamp on the ropes [Update - or maybe not]

    From the Evansville Courier & Press, an AP developing story:

    An Indiana House committee has dealt a serious blow to local government reorganization efforts in Indiana.

    The Democrat-controlled Government and Regulatory Reform committee voted Tuesday to fold several local government provisions proposed by Gov. Mitch Daniels into a single bill.

    The panel then voted to reject the bill, with one Republican joining six Democrats in voting against the bill. Several Republicans then walked out in protest.

    [More] Here is more, from the Fort Wayne Journal Gazette.

    [Update at 1:45 PM] Now this just posted story - "Indiana House panel keeps government reform alive" - by Eric Bradner of the C&P.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Government

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

    In U.S. v. Brazelton (ND Ind., Chief Judge Mlller), a 10-age opinion, Judge Coffey writes:

    Police arrested Badayah Brazelton as he exited his home after a witness identified him as the assailant in a shooting. Following his arrest, police obtained a search warrant for Brazelton’s home and discovered guns, crack, marijuana, and other drug paraphernalia. Brazelton was never charged with the shooting, but based on the items found in his house during the search, Brazelton was tried and convicted before a jury on two counts of gun crimes, 18 U.S.C. § 924(c), (g), and three counts of drug crimes, 21 U.S.C. § 841(a)(1). The court sentenced him to 425 months of imprisonment.

    Appellant Brazelton argues that his conviction should be set aside, arguing that one of the jurors seated was related to the victim of the shooting that led to Brazelton’s arrest and the search of his home. He makes this argument even though the victim did not testify and his name was not mentioned again after it was mentioned at voir dire. More importantly, though, Brazelton waived the issue raised for argument at trial even though he was aware of the juror's relationship at voir dire, and told the judge during the juror selection process that he did not want the juror to be struck for cause.

    Brazelton also claims, and the govern- ment concedes, that he should be resentenced in light of Kimbrough v. United States, 128 S. Ct. 558 (2007) because the district court followed the then-governing case law rejecting Brazelton’s argument that the court had discretion to impose a below-guidelines sentence based on a disagreement with the crack-powder ratio. We agree and remand for resentencing and affirm Brazelton’s conviction. * * *

    In this circuit, there is no ambiguity on the question whether the right to an impartial jury can be waived. We have held that “[t]he Sixth Amendment right to an impartial jury, like any constitutional right, may be waived.” * * * Brazelton’s on-the-record decision to pass up not one, but two opportunities to ask that Juror Number Four be struck for cause was a waiver. If a defendant is allowed to twice forego challenges for-cause to a biased juror and then allowed to have the conviction reversed on appeal because of that juror’s service, that would be equivalent to allowing the defendant to “plant an error and grow a risk-free trial.” United States v. Boyd, 86 F.3d 719, 722-23 (7th Cir. 1996).

    Brazelton’s second argument, that his sentence should be remanded in light of Kimbrough v. United States, 128 S. Ct. 558 (2007), fares much better. At the time of sentencing, our case law precluded district courts from imposing a sentence based on the court’s disagreement with the crack- powder ratio, see United States v. Jointer, 457 F.3d 682, 686-88 (7th Cir. 2006), thus the trial judge properly rejected Brazelton’s argument to do just that. After Kimbrough, even in a “mine-run case,” district courts are allowed to impose lesser sentences after a determination that the 100- to-one ratio produces a sentence greater than necessary for a particular defendant. Kimbrough, 128 S. Ct. at 575. And this new discretion applies in cases like Brazelton’s that involve the equivalency tables because the tables embodied the 100-to-one ratio. See United States v. Williams, 276 Fed. App’x 491, 493 (7th Cir. 2008). Brazelton raised this issue in the district court and the district court gave no ex-planation as to whether it would have imposed the same sentence if it had the discretion to consider the disparity. Brazelton is entitled to a remand for resen-tencing. See United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008).

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

    For publication opinions today (0):

    NFP civil opinions today (0):

    NFP criminal opinions today (1):

    Jeffrey A. Foster v. State of Indiana (NFP)

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - Transfer list for week ending March 6, 2009

    Here is the transfer list for the week ending March 6, 2009. It is 3 pages long.

    Transfer was granted last week in the case of Che B. Carter v. State - see ILB entry here from March 5th. And, as noted earlier today, transfer was granted in Gregory T. Hill v. State, the COA opinion was vacated and the case remanded to trial court.

    As noted in this March 8th ILB entry, the Supreme Court vacated its transfer grant in Gunkel v. Renovations after oral argument.

    Finally, the Supreme Court denied transfer in a much written-about case, Brothers of Holy Cross Inc. v. St. Joseph Co. Property Tax Assessment Bd. Of Appeals. See list of ILB entries here. The case concerned whether/when real estate owned by a religious institution is subject to the state property tax.

    Transfer lists have new feature. Thanks to Clerk of the Courts Kevin Smith, starting today the weekly transfer list has a new feature -- the "Denied/Granted" column includes the votes of the justices. This is a great addition.

    Search all the Transfer Lists: A new ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions.

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

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Transfer Lists

    Ind. Decisions - Supreme Court issues three opinons today

    In In the Matter of R.J.G., a 5-page, 5-0 opinion, Justice Boehm writes:

    We hold that a juvenile court may order a commitment to the Department of Correction and, in the same order, provide for probation following release from the Department of Correction. * * *

    We affirm the provision of the dispositional decree ordering probation following R.J.G.‘s
    release from the Department of Correction.

    In Christine R. Scheible v. Ronald Smith, Fred Jackson, a 9-page, 3-2 opinion, Justice Boehm writes:
    In Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991), we adopted Restatement (Second) of Torts section 363 permitting possessors of land to be held liable for harm caused by the condition of trees on land near a highway. A seller of land may be liable for harm caused by the con- dition of trees on the land near a highway if the seller is in possession or control of the condition of the trees when the harm occurs. In this case, the seller did not retain possession or control of routine maintenance, including trimming of trees, and the trial court correctly entered summary judgment for the seller. * * *

    The issue here is one of first impression: under what circumstances a vendor of land may be liable to a third party for harm resulting from the condition of trees on the land near a high- way. * * *

    Here Scheible acknowledges that a vendor will typically have no post-sale liability, but argues that Jackson can be held liable because he continued “acting like a landowner” after the sale. * * *

    In sum, the contract called for possession to transfer to Smith at closing. None of the evidence designated is inconsistent with that provision. As a matter of law, liability under sec- tion 343, the only provision addressed by the parties, lies with Smith as the possessor of the land. * * *

    Scheible also argues that summary judgment is improper because Jackson’s violation of a city ordinance constitutes negligence per se. We do not believe the cited ordinance applies to Jackson. * * *

    The trial court’s grant of summary judgment in favor of Jackson is affirmed.

    Shepard, C.J., and Sullivan, J., concur.
    Rucker, J., dissents with separate opinion in which Dickson, J., concurs. [Justice Rucker's dissent concludes] In my view there is no question that Jackson exercised some degree of control over the property notwithstanding he had sold it on contract to Smith. At the very least there is a dispute of fact on this point, and summary judgment in Jackson’s favor was inappropriate. I therefore agree with the Court of Appeals majority and would reverse the judgment of the trial court.

    In Jim Atterholt, et al v. Geneva Herbst, et al, an 8-page, 5-0 opinion, Justice Boehm writes:
    We hold that when a claimant seeks excess damages from the Patient’s Compensation Fund after obtaining a judgment or settlement from a health care provider in a medical malpractice case, the Fund may introduce evidence of the claimant’s preexisting risk of harm if it is relevant to establish the amount of damages, even if it is also relevant to liability issues that are foreclosed by the judgment or settlement. * * *

    In this case, the Estate filed a petition to access the Fund after settling with the health care providers under an agreement in which the providers contributed a total of $187,001 in cash and payments to purchase an annuity. The Estate and the Fund dispute the meaning of the statutory provision that "liability" is to be treated as "established" by the settlement. The Estate argues that "liability" includes causation and the statute therefore precludes the Fund from introducing evidence related to causation issues. We understand the Estate’s contention to embrace both causation in fact and scope of liability, sometimes described as proximate cause. The Estate thus argues that any evidence of Herbst’s risk of death bears on causation — whether the death results from malpractice — and is therefore precluded. The Fund responds that its evidence is admissible because it is relevant to the amount of damages for which it is liable.

    The Medical Malpractice Act does not define "liability." However, the Act provides that undefined legal terms have the meaning consistent with the common law. I.C. § 34-18-2-2. According to Black’s Law Dictionary (8th ed. 2004), liability is the "quality or state of being legally obligated or accountable." To say that one is "liable" does not establish the amount of damages. In this case evidence of Herbst’s underlying risk of death whether or not he was properly treated is relevant to both liability — whether malpractice caused his death — and to damages — the amount for which the Fund is responsible. For this reason, it is admissible and its exclusion was error. * * *

    Because the statement of law sought by the Estate at summary judgment was correct on its face, we affirm the trial court’s grant of partial summary judgment. The case is remanded for a determination of the extent of the Fund’s liability consistent with the law as explained in this opinion.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Ind. Sup.Ct. Decisions

    Ind. Decisions - Supreme Court grants transfer and remands, by order

    On March 6, by an Order Granting Transfer and Remanding, in the case of Gregory T. Hill v. State of Indiana (NFP), the Court granted transfer, vacated the decision of the Court of Appeals, and remanded the case to the trial court "for further proceedings on Hill's belated motion to correct error." Hill was not advised that he could challenge his sentence on appeal.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Transfer Lists

    Ind. Courts - Supreme Court makes two temporary judge appointments [Updated]

    Two press releases:

    The first, "Indiana Supreme Court Selects Judge Michael Witte to Serve as Temporary Judge in Wayne County", dated March 10th, begins:

    The Indiana Supreme Court has named the Honorable G. Michael Witte to serve as temporary judge of Wayne Superior Court 1, Chief Justice Randall T. Shepard announced today. Witte replaces Judge P. Thomas Snow, who was recently named Chairman of the Alcohol & Tobacco Commission.

    The Governor named Judge Snow as chairman, leaving a judicial vacancy in the Wayne Superior Court. According to Indiana Supreme Court trial rules, the vacancy is filled by the Court until the Governor names a successor or, or until further order of the Court. Chief Justice Shepard was appreciative that Judge Witte agreed to serve and said, “Judge Witte has been an integral part of the administration of justice in our state for more than twenty years. He is honest, fair, and thoughtful in his decision making process.”

    Witte is currently a senior judge. He was elected to the bench in Dearborn County in 1985. He was the first Asian-American to serve as judge in the state of Indiana.

    Here is the Supreme Court order dated and filed March 10, 2009, appointing Judge Witte as Judge Pro Tempore effective March 16, 2009.

    The second, "Indiana Supreme Court Selects Attorney to Serve as Temporary Judge in Madison County," begins:

    The Indiana Supreme Court has named attorney Geoffrey B. Yelton to serve as temporary judge of Madison Superior Court 4, Chief Justice Randall T. Shepard announced today. Yelton replaces the Honorable David W. Hopper, who passed away February 25th.

    According to Indiana Supreme Court trial rules, a judicial vacancy is filled by the Court until the Governor names a successor or until further order of the Court. Chief Justice Shepard was saddened to hear the news of Judge Hopper’s passing and sends condolences on behalf of the Court to Judge Hopper’s family and his Madison County court family. On February 26th, Chief Shepard opened Court with the following statement, “The Court meets this morning at a moment of sadness for the Indiana Judiciary due to the passing of Judge David Hopper, and we go about our assignment encouraged by the example of his contribution to Justice.”

    Here is the Supreme Court Order, dated and filed March 9th, 2009, appointing Geoffrey B. Yelton as Judge Pro Tempore, effective upon his filing of an appropriate oath.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Courts

    Courts - More on: SCOTUS rules on impact of public defender delays in getting case to trial

    Updating this ILB entry from yesterday, Adam Liptak of the NY Times writes today under the heading: "Justices Rule on Legal Effects of Slow-Moving Cases." Some quotes:

    The Supreme Court issued two rulings on Monday concerning the consequences of long delays in the criminal justice system.

    In one [Thompson v. McNeil], the court declined to hear an appeal from a death row inmate who argued that he should not be executed because the 32 years he spent on death row amounted to cruel and unusual punishment barred by the Eighth Amendment. The court’s decision not to hear the case touched off a lively debate among three justices.

    The court also ruled that a Vermont man’s right to a speedy trial had not been violated despite a three-year delay.

    When the court accepted the speedy-trial case, Vermont v. Brillon, No. 08-88, it appeared to be ready to decide whether delays by court-appointed lawyers provided by the state may sometimes amount to a violation of the right. The ordinary rule is that only the prosecution’s delays count against the government.

    But the tangled record in the case demonstrated that the defendant, Michael Brillon, had fired one of his lawyers and threatened the life of a second.

    Those facts made the case an imperfect vehicle for a broad pronouncement. Justice Stephen G. Breyer, joined by Justice John Paul Stevens, dissented, saying he would have dismissed the appeal.

    Justice Ruth Bader Ginsburg, writing for the seven-justice majority, said delays caused by the defendant or his lawyer, whether court-appointed or not, did not ordinarily count against the speedy-trial clock. “Unlike a prosecutor or the court,” Justice Ginsburg wrote, “assigned counsel ordinarily is not considered a state actor.”

    Justice Ginsburg left the door open, though, to a challenge where the delay was caused by “a systemic breakdown in the public defender system.”

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Courts in general

    Law - More on "Don’t Rely on Bush’s Signing Statements, Obama Orders"

    Updating this ILB entry from yesterday, here is President Obama's 2-page Executive Order on presidential signing statements.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to General Law Related

    Environment - "EPA Orders Utilities to Self-Report Coal Ash Impoundment Problems"

    From a release posted by the Environment News Service:

    WASHINGTON, DC, March 9, 2009 (ENS) - Responding to the coal ash spill last December at a Tennessee Valley Authority power plant in Kingston, Tennessee, the U.S. Environmental Protection Agency today released a plan intended to prevent threats to human health and the environment from similar incidents.

    The EPA plans to gather coal ash impoundment information from electric utilities nationwide, conduct on-site assessments to determine structural integrity and vulnerabilities, order cleanup and repairs where needed, and develop new regulations for future safety.

    The EPA estimates there may be as many as 300 coal ash impoundments across the United States. * * *

    In letters today, EPA requested that electric utilities with surface coal ash impoundments or similar units provide information about the structural integrity of their facilities. The federal agency is asking for information about diked or bermed facilities that contain "by-products from the combustion of coal, including but not limited to, fly ash, bottom ash, boiler slag, or flue gas emission control residuals."

    These information requests are legally enforceable and must be responded to fully within 10 days, Jackson said in the letter of request.

    Working closely with other federal agencies and the states, EPA will review the information provided by the facilities to identify impoundments or similar units that need priority attention. EPA also will visit many of these facilities to see first hand if the management units are structurally sound.

    The agency will require appropriate remedial action at any facility that is found to pose a risk for potential failure.

    The assessment and analysis of all such units located at electric utilities will be compiled in a report and made available to the public.

    EPA is also developing regulations to address the management of coal combustion residuals. Jackson said the agency anticipates having a proposed rule ready for public comment by the end of the year.

    Here are earlier ILB entries on coal ash.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Environment

    Ind. Courts - State workers lawsuit for back pay during 1973-1993 period begins today

    A very brief item today in the Indianapolis Star reports:

    In Marion County, the state workers' lawsuit is set for a bench trial before Judge John Hanley. The plaintiffs contend that as many as 15,000 state employees worked 40-hour weeks from 1973 to 1993 but received the same pay as others in similar jobs who worked 37.5 hours.

    A settlement agreement announced in August later was abandoned by the state after compensation claims exceeded its $8.5 million threshold, said John Kautzman, the attorney for several plaintiffs.

    That means the settlement fell through. The ILB has not seen that reported anywhere.

    On Aug. 19, 2008, the ILB had a lengthy entry headed "Indiana OKs $8.5 million payout to some state workers," reporting on a $8.5 million preliminary settlement reached on the day the lawsuit was scheduled to go to tria in Marion Superior Court. There was one caveat, as set out in the Star story from Aug. 19th:

    According to Kautzman, if the calculated total amount exceeds $8.5 million, the state can back out of the settlement and resume trial or pay off the remainder. A tentative hearing is scheduled for mid-October.
    This ILB entry from Sept. 19, 2008 reported:
    Today the ILB received in the mail a "Court-Approved Notice and Claim Form Regarding Brattain, et al. v. Richmond State Hospital, et al." The claim is to be submiited by Nov. 1, 2008 to the Claims Administrator in Milwaukee, WI. If you are a member of the class and wish to object to the terms of the settlement, the notice provides that you must file with the Court no later than Oct. 17, 2008. A website, hoursofworksettlement.com, is listed on the bottom of each page of the mailing.
    A notice on that website, when I checked it this morning, reads:
    This official website is maintained by the claims administrator retained by and under the supervision of Class Counsel and Defense Counsel in the action entitled Brattain et al. v. Richmond State Hospital et al., Cause No. 49D11-0108-CP-1309 (the “Action”), which is pending in the State of Indiana, Marion Superior Court, Civil Division.

    On November 10, 2008, the Defendants exercised their option to terminate the settlement pursuant to the terms of the settlement agreement. Accordingly, no payments will be made under the settlement agreement. The date for trial has been changed from January 20, 2009, to March 10, 2009.

    Posted by Marcia Oddi on Tuesday, March 10, 2009
    Posted to Indiana Courts

    Monday, March 09, 2009

    Courts - "Web Directory Of Attorneys Upsets D.C. Bar"; Is Indiana Next?

    Kim Hart reports in the Washington Post today under the heading, "Web Directory Of Attorneys Upsets D.C. Bar." The story reports that the District of Columbia Bar:

    wants an online directory that compiles profiles of lawyers -- from the bar's own Web site, no less -- to cease and desist, arguing that posting information about Washington lawyers for commercial purposes violates copyright laws and privacy rights.

    It's not too fond of the feature that allows consumers to rate a lawyer, either.

    "This has nothing to do with obstructing access to information," said the bar's spokeswoman, Cynthia Kuhn. "It has to do with a commercial company taking this information without authorization and in some cases perpetuating misinformation" by not updating the data frequently enough.

    Avvo.com, the site posting the profiles, says it's simply using public data to help consumers find lawyers and their track records.

    "There's no reason why lawyer-licensing records should be treated any differently than records for any other profession," said Joshua King, general counsel for the Seattle start-up. "The bar doesn't like the fact that the information is out of its control."

    The dispute is the latest in an escalating debate over how private Web sites can use public information. It also underscores the tension around a growing number of sites that allow clients to publicly critique any professional, from doctors to plumbers.

    Take note of those two points, to which I would add a third:
    1. How private Web sites can use public information;
    2. Sites that allow clients to publicly critique any professional, from doctors to plumbers; and
    3. Preventing the public from accessing records, except through a search engine box.
    These points have been coming up with greater frequency recently. #2, for instance, brings to mind issues facing Angie's List, an Indianapolis startup. #1 recalls the efforts of various companies to obtain access to the public court data compiled by JTAC in the counties where its Odyessy system has been installed. #3 recalls my own failed efforts a few years back to obtain bulk access to the electronic environmental settlement agreements produced by the Ind. Dept. of Environmental Management and available to the public through an online search box, tediously, one by one, if you know the parties' names. (Carl Malamud has been pressing for bulk access on the federal level.)

    The ILB had an earlier entry on Avvo, last June 12th, headed "Illinois keeps list of lawyers private." It quoted the end of a story in the Springfield Illinois paper:

    [N]ames already can be accessed on the ARDC’s [Illinois] Web site, which also states addresses, disciplinary records and whether lawyers have malpractice insurance.

    However, there is no way to get a complete list of lawyers from the ARDC’s Web site, which requires users to punch in names to get information. So, if you already know Abraham Lincoln is a lawyer, you can check him out (and yes, Lincoln is listed on the ARDC’s Web site, which states he is deceased and not authorized to practice). But without knowing Lincoln’s name, he would be a very tiny needle in a very large haystack that includes more than 85,000 practicing lawyers.

    All of this is particularly relevant because Avvo has announced it is coming to Indiana. The Avvo Blog announced March 2nd, under the heading "Avvo Launches in Eight New States":
    I am proud to announce that Avvo has launched in the esteemed states of Louisiana, Indiana, Kansas, Iowa, South Carolina, Nevada, Maine and Wyoming. These states will have full Avvo functionality with one twist: We are launching our *directory* in each of these states in “beta” form.

    Posted by Marcia Oddi on Monday, March 09, 2009
    Posted to Courts in general

    Law - "Don’t Rely on Bush’s Signing Statements, Obama Orders"

    Charlie Savage won a Pulitzer prize while writing about President Bush's signing statements for the Boston Globe.

    Now he has moved on to the NY Times and has this story today, that begins:

    WASHINGTON — Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

    But Mr. Obama also signaled that he intends to use signing statements himself if Congress sends him legislation that has provisions he decides are unconstitutional. He pledged to use a modest approach when doing so, but said there was a role for the practice if used appropriately.

    “In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.

    Posted by Marcia Oddi on Monday, March 09, 2009
    Posted to General Law Related

    Courts - "Bringing Newly Issued Rulings to an Appellate Court's Attention" [Updated]

    Howard Bashman of How Appealing has a practice column today in The Legal Intelligencer, titled "Bringing Newly Issued Rulings to an Appellate Court's Attention." The column begins:

    Often, after an appeal has been fully briefed or orally argued, but before it has been decided, a court will issue a ruling that may materially affect the appeal's outcome. What's an appellate advocate to do once that has happened?

    Fortunately, answers to that question can be found in both the Federal Rules of Appellate Procedure and the Pennsylvania Rules of Appellate Procedure. If your appeal is pending in federal court, you should consult Federal Rule of Appellate Procedure 28(j), which is titled "Citation of Supplemental Authority." And if your appeal is pending before a Pennsylvania state appellate court, you should consider Pennsylvania Rule of Appellate Procedure 2501, titled "Post-submission Communications."

    I'm not finding a similar rule in Indiana's rules. Any suggestions from readers?

    [Updated] I've received a quick response, and from a blue ribbon source:

    Marcia, in response to your post on "Bringing Newly Issued Rulings to an Appellate Court's Attention":

    Appellate Rules 47 and 48
    apply in this context. Rule 47 allows a party to request permission to amend a brief and Rule 48 allows for the filing of significant authorities which come to the attention of a party after the party's brief or petition has been filed, or after oral argument but before decision.

    Hope this helps and is not the 100th response you have received.

    [More] Many thanks to all who responded.

    Posted by Marcia Oddi on Monday, March 09, 2009
    Posted to Courts in general

    Courts - SCOTUS rules on impact of public defender delays in getting case to trial

    According to Lyle Denniston of the SCOTUSBlog, in an entry briefly describing several rulings today:

    By a 7-2 vote, the Court ruled that a state is not responsible for the delays in getting a criminal case to a trial, if those delays are the result of tactics or omissions by public defender lawyers. Just because a court-appointed lawyer is from a public defender’s office, the Court said, does not make those attorneys government actors, as such, for whom the state is responsible for their tactical choices. Assigned counsel’s blame for delays are to be attributed to the defense, not the state — unless there is a complete breakdown in the public defender system, the Court decided in Vermont v. Brillon (08-88). Justice Ruth Bader Ginsburg wrote for the Court.

    Posted by Marcia Oddi on Monday, March 09, 2009
    Posted to Courts in general

    Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

    For publication opinions today (2):

    In In Re: J.D. v. State of Indiana , a 7-page opinion, Judge Friedlander concludes:

    In this case, Officers Kinsey, Casavan, and Burnett observed J.D. and other juveniles sitting on a porch with open and empty containers of alcohol sitting around the porch. Moreover, J.D. “was sitting right next to some of the empty cans and some cans that had some alcohol in them.” Although the officers did not witness J.D. actually drinking beer, the fact that he is a minor, coupled with his close proximity to the open cans of beer on the porch, was sufficient to cause an ordinarily prudent person to believe that criminal activity had or was about to occur. See Williams v. State, 754 N.E.2d 584. Thus, considering the totality of the circumstances, see Greeno v. State, 861 N.E.2d 1232 (Ind. Ct. App. 2007), the facts then known to the officers were sufficient to create a reasonable suspicion of criminal activity, regardless of whether the officers actually saw J.D. drinking the beer or holding the can in his hands. The detention of J.D. thus did not offend Fourth Amendment principles.

    We reach a similar result when analyzing J.D.'s claim under the Indiana Constitution. The analysis under the Indiana Constitution is much the same as that under the Fourth Amendment. Article 1, section 11 of the Indiana Constitution guarantees the rights of liberty, privacy, and free movement and investigatory stops constitute a seizure, invoking the protections of that provision. Taylor v. State, 639 N.E.2d 1052 (Ind. Ct. App. 1994). Those rights are not absolute, however, but must be balanced against society's right to protect itself. Atkins v. State, 834 N.E.2d 1028. We must balance these sometimes competing rights by considering the reasonableness of the intrusion and, where appropriate, permit brief investigatory stops based upon reasonable suspicion of criminal activity. * * *

    As explained above with respect to J.D.'s Fourth Amendment claim, the police officers observed J.D. sitting in very close proximity to open beer cans, with what appeared to be marijuana strewn about on the ground. This would cause an ordinarily prudent person to believe that criminal activity (minor consumption of alcohol) had or was about to occur, thus giving rise to the requisite reasonable suspicion under Terry. J.D.'s detention did not contravene article 1, section 11 of the Indiana Constitution and the juvenile court did not err in failing to exclude the evidence on that basis. Judgment affirmed.

    In Sherri Lemon v. Wishard Health Services, a 9-page opinion, Chief Judge Baker writes:
    Appellant-plaintiff Sherri Lemon, on behalf of herself and all others similarly situated, appeals the trial court?s order denying her motion for class certification. Lemon argues that the trial court erred by concluding that potential class members are required to submit their wage claims to the Indiana Department of Labor (DOL) before they are permitted to be members of a class action seeking penalties for the late payment of wages pursuant to the Wage Claims Act.1 Finding no error, we affirm. Appellant-plaintiff Sherri Lemon, on behalf of herself and all others similarly situated, appeals the trial court?s order denying her motion for class certification. Lemon argues that the trial court erred by concluding that potential class members are required to submit their wage claims to the Indiana Department of Labor (DOL) before they are permitted to be members of a class action seeking penalties for the late payment of wages pursuant to the Wage Claims Act. Finding no error, we affirm. * * *

    In sum, we find that a claimant seeking redress pursuant to the Wage Claims Act must first submit the claim to the DOL before filing a lawsuit in court. Furthermore, the act of filing a putative class action does not enable the putative class members to subvert the statutory requirements. Finally, the putative class members are not permitted to get authority to file suit after the suit has already been filed and, in any event, the statute of limitations has expired. For all these reasons, we affirm the trial court.

    NFP civil opinions today (8):

    In Re: The Term. of the Parent-Child Rel. of S.M.W. and C.G.R.W., Scott W. v. St. Joseph Dept. of Child Svcs. (NFP)

    Kevin P. and Lisa F. Davis v. Drake Builders, LTD. (NFP)

    Karla L. Lindsay v. Terry S. Lindsay (NFP)

    Thomas M. Dixon v. Maria Cecillia Lucero (NFP)

    Adrian Ross v. Jennifer Ross (NFP)

    In the Matter of J.C. and D.H. v. Indiana Dept. of Child Services (NFP)

    In the Matter of J.C. and D.H. v. Indiana Dept. of Child Services (NFP)

    BR Associates v. Sondra Neal (NFP)

    NFP criminal opinions today (10):

    In Re: The Contempt of Arthur Miles v. State of Indiana (NFP) - "Arthur Miles appeals his ninety-day sentence for direct contempt of court. Miles argues the sentence was unreasonable because his refusal to testify did not prevent the trial from going forward. We affirm.

    "The State wanted Miles’ testimony at a murder trial. Miles indicated he would invoke his Fifth Amendment privilege, and he was granted use immunity. Miles still refused to testify and the trial court found him in direct contempt."

Antonio Barbut v. State of Indiana (NFP)

John E. Turner v. State of Indiana (NFP)

Robert T. Cummins v. State of Indiana (NFP)

James Altes v. State of Indiana (NFP)

Kevin Simons v. State of Indiana (NFP)

Louis S. O'Neal v. State of Indiana (NFP)

Genard R. Richmond v. State of Indiana (NFP)

Jerry Liggin v. State of Indiana (NFP)

Onice Fields v. State of Indiana (NFP)


Joseph E. Deverick v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to Ind. App.Ct. Decisions

About this blog: ILB introduces new feature re transfer lists

Since Feb. 2, 2004, the ILB has been posting the transfer lists prepared by the Clerk of the Supreme and Appellate Courts. By now, that means about 260 lists, each 2-5 pages long.

What if you want to check back on a case in one of the lists? Until now, that was not easy.

However, over the weekend I have created a new ILB feature: "Search the ILB Transfer Lists." Check it out. Read the instructions.

Need a sample case to check? Try aplin.

[More] Right now the search opinion may pick up some extraneous documents containing your search terms, in addition to the transfer lists themselves. To avoid this, simply add the word denied to your search terms, and check the "all" option.

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to About the Indiana Law Blog | Indiana Transfer Lists

Ind. Law - "It's the Law: Animal cruelty and neglect"

Ken Kosky's NWI Times' "It's the Law" column for today, looks at animal cruelty and neglect. Some quotes:

Indiana law states animal neglect and animal cruelty are misdemeanor offenses, but animal abuse is a felony if the person has a prior conviction, tortures the animal or abuses the animal to terrorize a household member.

Porter County Prosecutor Brian Gensel said some examples of cases his office has prosecuted are the failure to provide enough food to horses, the hoarding of animals and the beating of dogs.

While animal cruelty and animal neglect are the most common animal-related offenses, Indiana law also covers bestiality, animal fighting and interference with service dogs, police dogs, search dogs.

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to Indiana Law

Law - "Firms Trade Brick-and-Mortar Prestige for a Better Business Model"

An interesting article today in the Washington Post, reported by V. Dion Haynes. It begins:

Across the country, the recession is putting increasing pressure on law firms to slash spending and discount their services. Client demand for lower prices is prompting firms to outsource some of their document work to India, hire more temp or contract lawyers, shift from billable hours to fixed fees and eliminate staff.

Geoff Willard, a Northern Virginia lawyer who largely represents newly launched companies, illustrates how the Wal-Mart effect of discounting is playing out in the Washington region's legal community.

Willard left his job as partner at DLA Piper, a huge global blue-chip law firm, because, he said, he was fed up with the traditional business model that required it to annually increase rates and billable hours to finance ballooning profits and overhead.

Last fall, he joined a start-up "virtual" law firm that he said is much better suited to the current economic conditions: It does business mainly over the phone and Internet and through video conferencing. Because the firm lacks two of the biggest cost drivers -- a prestigious brick-and-mortar office and associates -- he said he is offering his clients substantial savings compared with what they paid before.

"Everyone realizes the big law firm model is broken," said Willard, a partner in Silicon Valley-based Virtual Law Partners, who works out of his office -- adjacent to his kitchen and family room -- at his Reston home.

Although thousands of lawyers and staff members across the country have been let go during the past six months, Willard and Virtual Law's founder say that since June they have been adding three partners per month. "When you tell people, 'I'm going to drop my rates 25 percent,' it's a pretty easy decision" for them to hire you, Willard said.

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to General Law Related

Ind. Courts - Indianapolis Central library lawsuit begins today in Boone County courtroom

Jon Murray of the Indianapolis Star reports today in a story headlined "Taxpayers have huge stake in trial of Central Library lawsuit: Taxpayers have millions at stake in fraud action against engineering firm." The story begins:

Five years ago, the discovery of gaping holes in the concrete foundation of the Central Library expansion brought the then-$103 million project to a halt.

The legal battle born that day in Indianapolis now will play out inside a Boone County courtroom, a milestone in the Indianapolis-Marion County Public Library's quest to recoup millions in cost overruns.

A special judge will preside over the civil trial, which begins today in Lebanon and is expected to last six weeks.

Settlements and rulings have narrowed the field of more than a dozen companies with a hand in the design and construction of the underground parking garage, which also serves as the foundation for the six-story addition.

Millions are at stake for Marion County taxpayers, with one major player remaining: a New York-based engineering firm the library has accused of fraud.

What follows next is a "primer" on the case, including:
What happens today? The trial starts today in [special Judge Matthew] Kincaid's court, but opening statements might not come until Tuesday. Jury selection for the lengthy trial could last the entire first day or longer.

The panel will have six jurors and three alternates; prospective jurors were called only from Boone County. The jury will decide on the fraud claims and also determine whether Thornton Tomasetti should pay any damages.

What's at stake? The library -- and Marion County taxpayers -- could be on the hook for a significant portion of the overruns if the library doesn't win a judgment against Thornton Tomasetti. The library sold bonds to cover the overruns and has spent more than $8 million on legal bills.

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to Indiana Courts

Ind. Law - "Fur flies in legislatures over dog-breeding rules"

Niki Kelly and Sylvia A. Smith of the Fort Wayne Journal Gazette have a lengthy and wide-ranging story today on regulation of dog breeders in Indiana and nationwide. S ome quotes:

In states throughout the country – including Indiana – a battle about how and where dogs are bred, or even whether breeding should be ended, is playing out in legislatures with an emotional intensity akin to that of abortion or gun laws. * * *

"It's just a nightmare," said Rep. Linda Lawson, D-Hammond, who is authoring a bill that, for the first time, would regulate dog breeders and the people who sell them in Indiana. "I've been called everything imaginable including an animal abolitionist. Does anybody even know what that is?"

Lawson said the only time she has received this much feedback was when she voted against a resolution banning marriage between same-sex couples.

Lawmakers have been deluged with e-mails, letters, phone calls – and even a few threats.

Indiana House Bill 1468 passed the House 80-14 and is under consideration in the Senate. It would require people who breed and sell dogs to register with the state, restrict breedable dogs to 30 or fewer, limit how often female dogs whelp and offer buyers their money back if a dog is diseased. * * *

At least 17 other states are considering similar legislation. National organizations are helping state activists frame the issue, often in emotional terms.

"It's a business like any other," said Ledy VanKavage, a member of the American Bar Association's animal law committee and senior legislative analyst for Best Friends Animal Society, which supports laws to regulate breeders. "And like any other business, it needs to be regulated, especially when these animals go into your home and sleep with your children."

The story explores all viewpoints. A side-bar provides the details of House Bill 1468.

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court:

This Tuesday, March 10th:

Next week's oral arguments before the Supreme Court:


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

This Wednesday, March 11th:

Next week's oral arguments before the Court of Appeals:
Webcasts will be available here.

Posted by Marcia Oddi on Monday, March 09, 2009
Posted to Upcoming Oral Arguments

Sunday, March 08, 2009

Ind. Courts - Judicial Center's Legislative Update #8

Not much to speak of this week. The second half of the legislative session is underway. Two civil law bills heard in second house committee.

Posted by Marcia Oddi on Sunday, March 08, 2009
Posted to Indiana Courts

Ind. Courts - "Six may seek U.S. attorney's job"

That is the headline today to this story by Andy Grimm in the Gary Post-Tribune. The NWI Times had a similar run-down on Feb. 9th. From today's story:

For the last eight years, the U.S. attorney has been one of the most powerful figures in Northwest Indiana politics.

The U.S. attorney is a region's top federal prosecutor, the federal Department of Justice figure responsible for prosecuting criminal cases like drug trafficking and civil lawsuits for breaking environmental regulations. Of course, in Northwest Indiana, the U.S. Attorney's office makes its biggest headlines not when it announces charges against drug lords or polluters, but when it targets public officials.

New names mentioned in the Tribune story are Roy Dominguez, Lake County Sheriff, and Mike Dvorak, St. Joseph County prosecutor.

Posted by Marcia Oddi on Sunday, March 08, 2009
Posted to Indiana Courts

Saturday, March 07, 2009

Courts - More on: Suit filed seeking to enjoin Florida’s canons that require judges to recuse themselves from cases involving issues that they responded to in questionnaire

Updating this ILB entry from Aug. 29, 2006, the AP is reporting:

ATLANTA (AP) -- A federal appeals court has decided against a Florida group seeking to nullify a rule that prevented many judicial candidates from answering survey questions on issues such as abortion, school vouchers and gay marriage.

The Florida Family Planning Council claimed its First Amendment rights to obtain information were thwarted by Florida Code of Judicial Conduct rules saying judges should disqualify themselves on issues where their public statements appeared to commit them to certain positions.

Family Planning said judicial candidates could hide behind the rules to avoid scrutiny of their judicial philosophy. A federal judge in Florida found no constitutional basis for the complaint.

An appeals panel said Friday the suit should have been dismissed for a different reason: lack of subject matter jurisdiction.

The 26-page decision, Florida Family Planning v. Freeman, et al, is available here.

For useful background on judicial questionnaires, readers are directed to this Sept. 13, 2006 ILB entry.

Posted by Marcia Oddi on Saturday, March 07, 2009
Posted to Courts in general

Law - More on "Citing Cost, States Consider End to Death Penalty"

Updating this ILB entry from Feb. 25th, the Washington Post has a similar story today by Deborah Hastings of the AP. The long story begins:

-- After decades of moral arguments reaching biblical proportions, after long, twisted journeys to the nation's highest court and back, the death penalty may be abandoned by several states for a reason having nothing to do with right or wrong:

Money.

Turns out, it is cheaper to imprison killers for life than to execute them, according to a series of recent surveys. Tens of millions of dollars cheaper, politicians are learning, during a tumbling recession when nearly every state faces job cuts and massive deficits.

So an increasing number of them are considering abolishing capital punishment in favor of life imprisonment, not on principle but out of financial necessity.

Posted by Marcia Oddi on Saturday, March 07, 2009
Posted to General Law Related

Ind. Courts - "Judge pledges quick decision in Liberty Township hospital case"

On Nov. 15, 2008, the ILB had an entry headed "Judge rules she will stick with hospital zoning suit." The case is described as "case where the landowners association is suing the county commissioners for rezoning land northwest of the intersection of Indiana 49 and U.S. 6 so that Porter hospital can build a new facility."

Yesterday the Gary Post-Tribune had this brief item:

The legal battle that Liberty Landowners Association has filed against Porter County and Porter hospital will continue at least another 30 days.

The next round will determine whether Liberty Landowners have the right to sue the Porter County Commissioners and Porter County Plan Commission for rezoning land northwest of the intersection of Indiana 49 and U.S. 6 so that Porter hospital can build a new facility.

Judge James A. Sarkisian gave both sides 30 days to file briefs on the matter.

Vicki Urbanik of the Chesterton Tribune had a much longer story. Here are some quotes:
Does a citizens group that opposes a proposed development in its community have the right to challenge the project in court even if it doesn’t own adjacent property? And if law doesn’t give such a right, should it?

That was the crux of the legal arguments presented Thursday, as the Liberty Landowners Association squared off with the county and Northwest Indiana Health Systems, the entity owned by Community Health System that plans to build a new hospital at U.S. 6 and Ind. 49 in Liberty Township.

The county and hospital are asking the court to dismiss the suit brought by the LLA challenging the county’s rezoning granted for the new 225-bed hospital.

Porter County Circuit Court Judge Pro Tem James Sarkisian, sitting in for Judge Mary Harper, gave both sides 30 days to file their findings of fact. He pledged to make a ruling quickly after that. * * *

The main issue Thursday focused not on the LLA’s actual objection to the new Porter Hospital and the group’s contention that the Porter County Commissioners violated county ordinances when they approved the necessary rezoning -- but whether the group even has standing to file suit.

[County Attorney Gwenn] Rinkenberger and the attorney representing the hospital, Michael Lewinski from the Ice Miller law firm in Indianapolis, cited case law that they said showed that LLA lacks standing and as such, the case should be dismissed.

Indiana courts, they said, have granted standing only to adjacent property owners or those aggrieved by a particular project who would suffer injury not felt by the community as a whole.

Lewinski said the court determinations on standing are a way to prevent unnecessary lawsuits, filed at any time and by anyone without cause.

He also said that neighboring property owners who would have had standing could have filed suit, but didn’t.

One of the cases Rinkenberger and Lewinski cited involved a ruling that an individual lacked standing because he or she didn’t own property within 150 feet of the proposed project.

“Our case is even stronger than that,” Lewinski said, noting that the LLA as a group doesn’t own any property at all.

Lucas didn’t disagree with the way that Rinkenberger and Lewinski described how courts have interpreted the legal definition of standing.

But he argued that the cases they cited don’t involve the same circumstances and that the LLA/hospital case involves larger, constitutional issues. If the law specifically says that groups that don’t own property do not have standing in all cases, “we are specifically challenging the impact as unconstitutional.”

[Martin Lucas, the attorney for the LLA] argued that it’s clear that the rezoning approved by the commissioners was in conflict with the county’s Unified Development Ordinance. Citing the Constitution’s equal protection clause and the right of citizens to petition their government, he said if the LLA and its members are expected to follow the UDO, then they have the right to protest when someone else -- in this case, the hospital -- doesn’t follow the UDO. * * *

Rinkenberger objected to Lucas’ line of argument, saying that he was straying from the actual issue of “standing” and instead arguing the merits of the case. She said before the other issues are addressed, the question of whether the LLA even has standing must be answered first.

Sarkisian overruled Rinkenberger’s objection, on the grounds that Lucas’ arguments on the substantive issues involving the hospital rezoning could influence the issue of whether the LLA has standing.

At the same time, though, Sarkisian told Lucas that he needed to hear a more convincing argument that the LLA’s concerns about the rezoning do, in fact, give the group legal standing. * * *

Sarkisian’s role in the court hearing came as a surprise to both sides. Both Rinkenberger and Lucas said they didn’t know that a temporary judge would handle the case until just before the hearing. LLA earlier tried to get Harper to recuse herself from the case, on the grounds that she was once married to Commissioner Harper; the judge rejected LLA’s request.

Posted by Marcia Oddi on Saturday, March 07, 2009
Posted to Indiana Courts

Ind. Courts - More on: Training on new loan modification programs

Updating this ILB entry from Feb. 26th, which announced:

"An Update on Foreclosure Prevention through Loss Mitigation and Loan Modifications," sponsored by Indiana Legal Services, Inc. the Indiana Supreme Court, and the Legal Aid Society of Southwest Ohio and the National Consumer Law Center, with support from the Indiana Housing & Community Development Authority and the Institute for Foreclosure Legal Assistance, will take place March 6th.
Today Jeff Swiatek of the Indianapolis Star reports in an interesting two-page story that begins:
The first of 30 training seminars on Friday filled all 100 seats in a meeting room in Indianapolis, which last year ranked among the 35 U.S. areas with the highest number of foreclosures. Marion County and 34 other counties across the country together accounted for more than half of all foreclosures filed last year.

Speakers doled out advice about mortgage modification plans, including President Barack Obama's just-released program to aid millions of homeowners in trouble. Participants at the all-day session also worked through a practice mortgage workout to get a feel for the legal steps.

Indiana Chief Justice Randall T. Shepard, who has pushed for the training program, wants attorneys who attend the seminar to each represent for free at least one homeowner facing mortgage foreclosure. That would help fulfill a lawyer's obligation to provide 50 hours of legal advice per year, said Indiana Court of Appeals Judge Melissa May, who chairs the Indiana Pro Bono Commission that oversees the free legal work provision.

"We'll take more" than one free foreclosure case a year from attorneys, said May, who attended Friday's training session. "A lot of people need help."

I had trouble seeing the entire story online, except by using the "print" opinion. The second part of the story points to the complexity of many foreclosure cases and the time they may consume.

Posted by Marcia Oddi on Saturday, March 07, 2009
Posted to Indiana Courts

Friday, March 06, 2009

Ind. Decisions - "Ind. regulators can be tougher than feds"

The Supreme Court's denial of transfer last week in the case of Indiana Department of Environmental Management v. Steel Dynamics, about which the ILB wrote here yesterday, is the subject of an AP story by Charles Wilson, appearing late this afternoon in the Chicago Tribune. Some quotes:

INDIANAPOLIS - State court decisions are allowing Indiana officials to interpret environmental regulations more strictly than the federal government does, even when the rules are based on federal standards.

The case involved a dispute between the Indiana Department of Environmental Management and Steel Dynamics Inc., which operates a small steel mill in the central Indiana town of Pittsboro. Initial reviews by the state Office of Environmental Adjudication and Marion County Superior Court yielded mixed results, and IDEM won the key issue on appeal.

The state Supreme Court last week opted not to hear the case, letting the decision stand.

IDEM had held that a silo used to store filtered dust and particulate matter from an electric arc furnace was a hazardous waste tank subject to regulation under federal law. But Steel Dynamics cited a reference by the U.S. Environmental Protection Agency saying such silos are part of the production unit and not regulated tanks.

The steel company argued that since IDEM had adopted relevant EPA rules rather than written its own, the agency was bound by EPA's interpretation of the federal Resource Conservation and Recovery Act.

The state appeals court disagreed.

"However, a state may choose to impose more stringent regulations than those imposed by RCRA, and 'RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes,"' said appeals court ruling, which cited a federal court decision.

"By incorporating these regulations, they became IDEM regulations, and subject to independent IDEM interpretation, just as much as if IDEM had promulgated them itself," the court said in an October ruling.

Indianapolis attorney David L. Hatchett, who represented Steel Dynamics, said Friday that * * * the IDEM action puts Indiana at odds with other states where Steel Dynamics, the nation's fifth-largest producer of carbon steel products, does business.

"This approach that IDEM is insisting on is putting any steel mills in Indiana at a disadvantage," he said, "because other states that SDI operates in do not interpret the regulation the way IDEM does."

As noted in this Oct. 7, 2008 ILB entry on the Court of Appeals ruling, the cases cited were from the 3rd and 4th Federal Circuits.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Environment | Indiana Transfer Lists

Ind. Decisions - Supreme Court dismisses as moot misconduct order against Judge Chapala

In the Matter of the Hon. Walter P. Chapala, Senior Judge, issued today, is available here. A list of ILB entries is available here. The Court writes:

The allegations of misconduct here are most serious. But the effect of the most likely sanctions that this Court would mpose if it were to find judge Chapala guilty have already been achieved with his resignation from the bench, the termination of his service as Senior Judge, and his retirement from the bar. We therefore find that the matter is effectively moot and the continued litigation of this matter an inefficient use of limited judicial resources.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "Justice Ginsburg, 'Alive and Well'"

"First, I wanted people to see that the Supreme Court isn't all male," the lone female justice said of the evening event Feb. 24. "I also wanted them to see I was alive and well, contrary to that senator who said I'd be dead within nine months."
That is a quote from Joan Biskupic's interview with Justice Ruth Bader Ginsburg today in USA Today, in answer to a question about "why, on her second day back on the bench, she attended President Obama's televised speech to a joint session of Congress.."

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Bledsoe's, Inc., et al. v. Steuben Lakes Regional Waste District, a 17-page, 2-1 opinion, Judge Riley writes:

Appellants-Defendants, Bledsoe's, Inc. (Bledsoe's) and John Cress d/b/a West Otter Lake Estates (Cress), appeal the trial court's grant of summary judgment to Appellee-Plaintiff, Steuben Lakes Regional Waste District (the District). * * *
Cress raises two issues, the first of which Bledsoe's joins, which we restate as: (1) Whether Ordinance No. 2002-03 is unconstitutionally vague for failing to define the terms “mobile home park” and “trailer park”; and (2) Whether Cress should be required to pay sewage fees for the period prior to which his property was connected to the sewage system.

Based on the foregoing, we conclude that the ordinances are not unconstitutionally vague. Further, we conclude that the trial court erred by granting summary judgment to the District on its claim that it had properly billed Cress prior to his property's connection to the sewage system.

Affirmed in part, reversed in part, and remanded for further proceedings.

DARDEN, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion. [which begins,on p. 15] I concur that Ordinance No. 2002-03 is not unconstitutionally vague for failing to define the terms “mobile home park” and “trailer park.” I also agree that Cress may be assessed his share of the “debt service costs” of building the sewage system despite the fact that he was not connected to it. I respectfully part ways with my colleagues on the lone issue of whether Cress is liable for paying his sewage usage fees during the time he refused to connect to the system. In my view, he is liable for these user fees.

In Artillius Washington v. State of Indiana , a 19-page opinion, Judge Bradford concludes:
In sum, we conclude that the trial court neither abused its discretion nor violated Washington's Sixth Amendment right to the counsel of his choice in denying Washington's request for a continuance on the morning of trial for the purpose of hiring private counsel, that the evidence presented at trial was sufficient to prove Washington's convictions, and that the deputy prosecuting attorney's comments during closing argument did not amount to fundamental error. Additionally, we conclude that Washington's sentence was appropriate and that the trial court neither abused its discretion nor erred in sentencing Washington, except to the extent that the trial court's sentencing statement should be modified to clarify that Washington was convicted of and sentenced for only Class B felony dealing in cocaine.

The judgment of the trial court is affirmed in part and remanded to the trial court with instructions.

In Jamison C. Hudson v. State of Indiana , a 17-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the State presented insufficient evidence to sustain Hudson’s conviction for child molesting as a Class A felony, and we reverse that conviction. However, the charging Information factually included the crime of child molesting as a Class B felony, and the jury necessarily found Hudson guilty of those facts when it returned a verdict of guilty of child molesting as a Class A felony. Therefore, we remand and instruct the trial court to enter a judgment of conviction for child molesting as a Class B felony, and to resentence Hudson accordingly. Additionally, we conclude that the trial court abused its discretion when it admitted evidence of Hudson’s uncharged acts of child molesting; however, the probable impact of this evidence upon the jury, in light of the powerful evidence regarding his acts for which he was charged, was so minor that this error was harmless. Affirmed in part, reversed in part, and remanded with instructions.

VAIDIK, J., concurs.
DARDEN, J., concurs in part and dissents in part with separate opinion. [which begins, on p. 14] I fully concur in the conclusion that the admission of H.K.’s testimony about the "flower stick' game was harmless error. As to the issue on which the majority reverses, I must acknowledge that the State could have easily avoided the situation that confronts this Court by simply inquiring of the defendant’s age during the testimony of several witnesses, including Hudson or his former wife, L.H., who is H.K.’s mother, hereinafter (Mother). Further, I don’t believe that Hudson’s age was a disputed issue of material fact in this case.4 As a result, I must respectfully dissent from the majority’s conclusion that Hudson’s conviction for child molesting as a class A felony must be vacated and judgment of conviction entered as a class B felony, because of the State’s failure to provide conclusive evidence that Hudson was at least twenty-one years of age at the time he committed the charged offense.

Travis Johnson v. State of Indiana - "Travis Johnson appeals his conviction for Carrying a Handgun Without a License, as a Class C felony, following a jury trial. He presents two issues for our review: 1. Whether the Prosecutor committed prosecutorial misconduct when, during trial, she repeatedly referred to Johnson’s post-arrest request for an attorney. 2. Whether Johnson was denied the effective assistance of trial counsel. We affirm."

NFP civil opinions today (2):

Michael Connor, et al v. Carol McDaniel, et al (NFP)

R.C. and C.C. and Madison County Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Sandra Neukam v. State of Indiana (NFP)

Antonio Rose v. State of Indiana (NFP)

Gregory Payne v. State of Indiana (NFP)

Donald Glynn Staker v. State of Indiana (NFP)

Jason Sexton v. State of Indiana (NFP)

Monique Nelson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Ind. Adm. Bd. Decisions

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

Updating earlier ILB entries, including this latest one from Feb. 25th, WNDU South Bend has this brief report:

St. Joseph County has challenged a judge's attempt to mandate pay raises for eight workers at the Juvenile Justice Center.

This week, the Indiana Supreme Court ordered that the case go to mediation.

Both sides have 15-days to select a mediator, or the Supreme Court will assign one to the case.

St. Joseph County Probate Court Judge Peter Nemeth sought to use his judicial mandate powers to order double digit pay raises for eight employees.

The raises were to be funded by fees paid by juvenile offenders--as opposed to tax dollars.

The Supreme Court has posted an Order Referring Case for Mediation, dated March 2. It deals with three matters: (1) real estate acquired and used for the juvenile justice center; (2) the funding of building and structural repairs and equipment for the center; and (3) the appropriation of funds from the juvenile probation services fund for certain salary increases.

The Supreme Court's Order states that, on Feb. 4th, it had amended TR 60.5, based upon recommendations of the Indiana Judges Association and the Indiana Association of Counties: "One of the new amendments to TR 60.5 authorizes this Court to order the parties to submit their dispute to mediation at any time in the process."

This is an effort to resolve the continuing problem at the local level between the local courts and the local government units with respect to control over finances. This ILB entry from Sept. 5, 2008 gives an overview of the problem. This paragraph indicates that thought was being given at that time to reviewing TR 60.5:

Re Rule 60.5, the CJ said it was adopted by the Court at the request of the counties, to establish something more orderly, a forum to address concerns of the counties in the 1970s and 80s. Our Court's view, said CJ Shepard, is that TR 60.5 is printed on paper, not carved in stone. In the last six months, the Indiana Judges Association has asked the Indiana Association of Counties to meet and talk about TR 60.5. The Supreme Court, he concluded, is open to restructuring.
Here is the revised wording of TR 60.5.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Indiana Courts

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

In US v. Martin Avila (SD Ind., Chief Judge Hamilton), a 27-page opinion, Judge Kanne writes:

From 2000 to 2001, law enforcement officers conducted an investigation that revealed extensive drug trafficking activities in the Indianapolis area. An organization comprised primarily of Mexican nationals was obtaining large amounts of controlled substances from individuals in Mexico, Texas, and Illinois, and redistributing the drugs throughout parts of Indiana. On October 17, 2002, defendant Martin Avila and eight other individuals were indicted for their roles in the conspiracy. Avila was tried alone in a two-day jury trial and convicted on March 13, 2007. He was sentenced to 396 months’ imprisonment and ten years of supervised release. Avila appeals his conviction and sentence. He argues (1) that he was prejudiced by a fatal variance between the charged crime and the proof adduced at trial; (2) that the district court erred in admitting several witnesses’ testimony or comments; and (3) that the Sentencing Guidelines range imposed was inaccurate. For the reasons that follow, we affirm Avila’s conviction and remand for resentencing.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Laws dampen malpractice victory"

That was the headline to this story reported by Bob Kasarda March 3rd in the NWI Times:

VALPARAISO | Attorney Ken Allen and his client should be celebrating this week's news that they won a malpractice judgement against a former Merrillville physician, who captured national attention after disappearing five years ago.

But Allen said the victory is bittersweet in that Indiana law has allowed bankers to get to Dr. Mark Weinberger's assets before his client, who will now have to wage another costly and lengthy legal battle in hopes of receiving a judgement capped at $1.25 million.

The delays and caps that were made part of the state's malpractice laws during tort reform in the late 1980s do a better job at protecting bad doctors and the insurance industry than the public, he said.

Allen said he won the first malpractice judgement against Weinberger from a panel of three physicians, which is the required first step when these types of cases are filed in Indiana. The case involves Valparaiso resident Phyllis Barnes, 50, who died after her cancer was misdiagnosed by Weinberger as a sinus condition, he said.

There are other civil malpractice lawsuits pending against Weinberger, including other clients represented by Allen.

The panel review in the Barnes case was dragged out for five years as a result of the current system and Allen's failed attempt to lay claim to Weinberger's assets along with the creditors.

The Indiana Department of Insurance has the discretion to respond to the panel's finding by paying out up to $1.25 million to Barnes' family, Allen said. But with little confidence that will happen, Allen said he plans to file a malpractice lawsuit in Lake County. Any judgement against the doctor would be paid out of the state's patient compensation fund.

Allen said he is using the case to shed light on what he sees as injustices in the state's tort reform laws. He down played the perception the changes were needed to protect against "runaway verdicts" by saying there are plenty of opportunities to appeal rulings in the courts.

Weinberger, who was to be featured late last year on the "America's Most Wanted" television show, remains at large, Allen said.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Ind. Trial Ct. Decisions

Environment - Clean coal in Illinois, coal gasification in Indiana

"New Life for 'Clean Coal' Project: Illinois Plant Was Abandoned by Bush; Now Its Backers Are in Power" is the headline to a lengthy story today in the Washington Post, reported by Kimberly Kindy. It begins:

Deep inside the economic stimulus package is a $1 billion prize that, in five short words, shows the benefits of being in power in Washington.

The funding, for "fossil energy research and development," is likely to go to a power plant in a small Illinois town, a project whose longtime backers include a group of powerful lawmakers from the state, among them President Obama.

They were unable to prevent the "clean coal" research project known as FutureGen from being abruptly killed last year by the Bush administration, which had created it and promoted it across the world as an environmentally sound way to produce power.

But now those same Illinois legislators -- including Rahm Emanuel, now White House chief of staff, and Ray LaHood, now transportation secretary -- control the White House and hold key leadership positions in Washington, and FutureGen is on the verge of resurrection.

Energy Secretary Steven Chu said yesterday that he would support the plant with "some modifications."

"I have to say, there are many, many good things about it," Chu said after testifying before a Senate committee.

If FutureGen lived up to its promises, it would revolutionize the use of coal. On what is now 400 acres of cornfields in Mattoon, Ill., backers plan to build a commercial-size power plant that would produce 275 megawatts of electricity, enough to power 150,000 homes. Instead of releasing the resulting carbon dioxide emissions into the air as pollution, however, the plant would pump them into deep geologic formations thousands of feet below Earth's surface.

The project's goal is to test and develop affordable technology, on a commercial scale, that can remove 90 percent of emissions produced by coal plants. Chu said he thinks that the plant -- which would be built with a group of private coal and utility companies known as the FutureGen Alliance -- will move forward with some changes that have not yet been determined and will become a part of larger "portfolio" of research plants developed with other countries.

The FutureGen plant is expected to create jobs, and backers are currently pushing it as a stimulus project that could employ as many as 11,000 workers. The alliance must compete for the stimulus funds, but Chu's support adds significant momentum to the effort.

FutureGen's destiny is being decided as the debate over clean coal technology takes center stage in Washington, drawing big money in lobbying fees and campaign contributions. More than $20 million has been spent to hire lobbying firms that have petitioned members of Congress on FutureGen and other clean coal issues, according to a Washington Post analysis. And employees of the energy companies in the FutureGen Alliance have donated $3 million to congressional and presidential candidates.

"Promise of saving millions: Coal-gas plant gaining traction" is the headline to a story today by Bryan Corbin of the Evansville Courier & Press. From the long story:
INDIANAPOLIS — The developer of the proposed coal-to-gas plant in Spencer County, Ind., is confident synthetic gas can be produced there less expensively than natural gas.

So confident is Indiana Gasification LLC that it made a promise to state lawmakers Thursday: If the coal-gasification plant does not achieve $400 million in savings over 30 years from what natural gas would have cost, the company will turn the plant over to the state or pay the state $400 million.

Indiana Gasification is trying to get state lawmakers to pass a bill that would allow it to apply for federal loan guarantees to build the plant — something it says it cannot do without the state legislation.

Upping the ante seemed to work. After a five-hour hearing, an Indiana House committee approved the bill the developer is requesting, Senate Bill 423, which now moves to the full House.

Since 2006, the developer has wanted to build a coal-gasification plant near Rockport, Ind., that would convert high-sulfur local coal into a substitute form of natural gas. The pipeline-quality synthetic gas then would be purchased by utilities to serve their home-heating customers.

The scope of the project in Southwestern Indiana would be massive: A $2 billion investment employing 1,000 construction workers for 31/2 years, followed by a permanent operational staff of at least 200. * * *

Under Senate Bill 423 that Rep. Russ Stilwell is sponsoring in the House, the Indiana Finance Authority would act as a go-between for the plant and utilities. The agency would purchase synthetic gas from the plant and immediately resell it to the utilities at the same price under 30-year purchasing contracts. Using the state as a pass-through would mean utilities would avoid long-term accounting implications that thwarted the earlier proposal, witnesses testified.

William Rosenberg of Indiana Gasification told lawmakers that with a 30-year contract, the Indiana Finance Authority could lock in a price for the synthetic gas refined from coal that would serve as a hedge against volatile price spikes in the market for natural gas.

If the plant produces the gas as promised, it would be paid the state-approved amount. If it doesn't produce, utility ratepayers wouldn't pay for it, and the developer is on the hook, Rosenberg said.

Sweetening the deal, he said the gasification plant will track daily the difference between the agreed-upon synthetic-gas price and the fluctuating price for natural gas, and guarantee a savings over time.

There is much more to read in this story.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Environment

Courts - "Live coverage boosts access to federal courtrooms"

A lengthy story today in the Washington Post, reported by Roxana Hegeman, datelined Wichita, includes these quotes:

n a victory for news technology in federal courts, a judge is allowing a reporter to use the microblogging service Twitter to provide constant updates from a racketeering gang trial this week.

It's not the first time online streaming has been allowed in courtrooms, but the practice is still rare in the federal system, especially in criminal cases.

A couple of lawyers voiced concern about the possibility that a juror might visit the online site to read the posts from Ron Sylvester, a reporter for the Wichita Eagle, but U.S. District Judge J. Thomas Marten said jurors are always told to avoid newspaper, broadcast and online reports.

"You either trust your jurors to live with the admonishment, or you don't," he said. * * *

Sylvester has been using Twitter for a year to cover hearings and trials in state courts, but the racketeering trial of six Crips gang defendants that he's covering online this week is his first in federal court. * * *

Across the country, tech-savvy federal judges are becoming increasingly receptive to live courtroom media coverage using emerging technologies. Such coverage from journalists reporting from trials in state courts is already common.

The federal judiciary has historically been more restrictive in criminal trials, with some U.S. Supreme Court justices adamantly opposed to cameras in their courts.

Federal judges have wide discretion on how to run trials when it comes to emerging online technologies.

"The more we can do to open the process to the public, the greater the public understanding _ the more legitimacy the public system will have in the eyes of the public," Marten said in an interview with The Associated Press.

"This is so far removed from cameras and, frankly, cameras are coming too," Marten said of the online blogging.

The long story includes a number of examples.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals rejects appeal in fatal OWI; flip-flop at issue

The Court of Appeals NFP decision March 4th in the case of Kara Crisp v. State of Indiana is the subject of a story today in the Lafayette Jourrnal Courier. Some quotes:

A Fowler woman should spend six years in prison for driving impaired and causing a single-vehicle crash two years ago that killed one of her passengers, Indiana's higher court has ruled

A Benton Circuit Court jury found Kara A. Crisp, now 24, guilty of reckless homicide, a Class C felony, after a trial this past June. Jeremy A. Bell, 25, died in the wreck.

Jurors determined that Crisp was the driver of a 1999 Jeep Grand Cherokee that rolled several times on Indiana 352 near Boswell the morning of May 26, 2007.

Crisp appealed her conviction and sentence on grounds that the trial judge should not have allowed testimony from Sheriff Butch Pritchett regarding a flip-flop style sandal -- which was never linked to Crisp -- on the vehicle's accelerator. The appeal also alleged that Crisp's rights to due process were violated because law enforcement officers did not preserve the shoe.

In a unanimous ruling issued Wednesday, the Indiana Court of Appeals disagreed, noting that Camp's brother testified that Crisp had been wearing flip-flops the night of the crash.

The mother of the second passenger, Ismael Carabello III, 22, of Bos-well, testified that Carabello never wore that style of sandal. Indiana's higher court ruled that the shoe and Pritcher's testimony were inculpatory evidence, or that it appeared to link Crisp as being the driver.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Helton oral argument reported today

The oral argument yesterday before the Supreme Court in the case of James H. Helton, Jr. v. State of Indiana (see ILB summary of COA opinion here) is the subject of a story today, reported by Justin Leighty, in the Elkhart Truth:

The five justices of the Indiana Supreme Court grilled attorneys Thursday morning on both sides of the case of James H. Helton Jr., 45, of Elkhart.

The Indiana Court of Appeals earlier said Helton's guilty plea in a methamphetamine case should be overturned because his lawyer didn't challenge some of the evidence, but the Supreme Court took over the case and will decide the outcome.

Justice Robert Rucker said Helton's trial attorney, Juan Garcia, planned to object to the evidence at trial, but Helton's guilty plea kept that from happening. However, the justices don't know whether Helton's attorney's misunderstanding of the law led to the guilty plea.

"We're dealing with a hypothetical," Justice Theodore Boehm said.

Justice Brent Dickson said, "A bigger issue for me is the fact that the defendant pled guilty. We accord a plea of guilty, a voluntary plea of guilty, a considerable significance. He voluntarily said yes, I committed the crime with which I'm charged. Why does anything else matter?"

John Chenoweth, an attorney representing Helton's appeal, said that while a guilty plea gives up some constitutional rights, it doesn't give up the right to effective assistance of counsel. Deputy Attorney General Cynthia Ploughe came to the defense of Garcia, saying his plan to wait to challenge the evidence at the trial was a tactical move that doesn't show he gave ineffective assistance.

She said ultimately, Helton regrets his choice to admit to the charge. "His conviction is not the result of proceedings that were against him. His conviction was due solely to him pleading guilty."

Chenoweth argued that if Garcia fought the evidence earlier in the case, Helton may not have pleaded guilty and the case might not have gone to trial.

Justice Frank Sullivan Jr. said, "We don't have anything in the record indicating why this man pled guilty." There could be reason to believe that "the reason he pled guilty after one day of trial is because things weren't going very well," Sullivan said.

Chief Justice Randall Shepard noted, "We simply know nothing about that."

You may watch the oral argument yourself here.

Posted by Marcia Oddi on Friday, March 06, 2009
Posted to Ind. Sup.Ct. Decisions

Thursday, March 05, 2009

Ind. Decisions - One transfer granted today

The transfer list will not be available until Monday, March 9, but the ILB has received notice of one transfer petition granted today, March 5th. The case is Che B. Carter v. State of Indiana , which was a 25-page, 2-1 opinion issued Dec. 11, 2008. Access the ILB summary here - 2nd case.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Tax Court issues two

The Tax Court has issued two NFP opinions today:

M.D. Curtis Management Co. Inc., et al v. Indiana Board of Tax Review, et al (NFP)

Raymond L. Curtis v. Calumet Twp. Assessor (NFP)

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court vacates transfer grant in Gunkel case

By an order dated March 4th, the Supreme Court has ordered:

By order dated January 15, 2009, the Court granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals to this Court. After further review, including oral argument, the Court has determined that transfer was improvidently granted.

Accordingly, the order granting transfer is VACATED. The Court of Appeals' Not for Publication Memorandum Decision is no longer vacated under Appellate Rule 58(A) and is REINSTATED. The transfer petition filed by Appellants is DENIED.

Oral arguments were heard Feb. 27th. The case, described in this Feb. 23rd "Upcoming Oral Arguments" entry, is particularly memorable because of Judge Kirsch's June 27, 2008 dissent, which began at p. 28 of 30 of the NFP COA opinion:
Multiple motions. Multiple hearings. Multiple judges. Parties admitting they entered into a contract, then denying that they entered into a contract. Bifurcated trials. Inconsistent positions. Inconsistent rulings. Summary judgments granted. Summary judgments denied. Summary judgments granted but not followed. Three appeals. Eight years and still unresolved. Attorney fees in excess of the amount in controversy.

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 also this report on the oral argument in this Feb. 27th ILB entry.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - "Settlement ends ongoing DTF forfeiture litigation"

Updating this ILB entry from Feb. 2th headed "Two stories today in continuing, and confusing, Delaware County saga," it seems there is a truce, of sorts, in the Delaware County saga involving the prosectuor, the mayor, and the judge.

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

Delaware Circuit Court 2 Judge Richard Dailey agreed Thursday to rescind all repayment orders and dismissed all civil drug forfeiture actions a week after the Indiana Court of Appeals stopped further court proceedings.

Dailey’s action, after a year of litigation, criminal accusations and the demise of the local drug task force, came by agreement from Delaware County Prosecutor Mark McKinney, Mayor Sharon McShurley and the Delaware County commissioners, led by President Todd Donati.

Dailey declined comment about the order, which has no effect on investigations or proceedings before the Indiana Supreme Court disciplinary commission into possible ethical misconduct by McKinney or a special prosecutor’s inquiry in alleged crimes involving the prosecutor and DTF.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Indiana Courts

Ind. Courts - Criminal charges filed against Plymouth attorney

From the Pilot News, a story by Carol Anders that begins:

PLYMOUTH — Criminal charges were filed Tuesday by the State of Indiana against Attorney Ronald Gifford of Plymouth.

Gifford was charged with two counts of forgery/counterfeiting (D felony) and two counts of deception (A misdemeanor).

According to court documents, the charges stem from actions taken in 2006 and 2007 by Gifford when he represented two Garden Court projects known as Fairfield Garden Court and Mentone Garden Court.

In late 2008, the Indiana Supreme Court ordered that the license to practice law of Gifford be suspended for a period of at least nine months starting Nov. 14 in connection with alleged professional misconduct concerning the projects.

Here is the Oct. 6, 2008 Supreme Court Order.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Indiana Courts

Law - Still more on unfinished or lost transcripts, and court transcripts in general

Updating this ILB entry from April 22, 2007, which looked at the problem of missing or unfinished court transcripts, here is one to add, from the Boston Globe.

"Missing trial tapes spawn an impasse: Stenographer denies she has them" is the headline to a story by Jonathan Saltzman. Some quotes:

When they do their jobs right, court stenographers attract little attention. They tap quietly on a shorthand machine at more than 200 words a minute to make a record of testimony or repeat verbatim everything said in court into a tape recorder. But among the cast of characters, they seldom play a starring role.

Jeanne Lentini, however, is getting a close-up, and not a flattering one. After working in the state courts under contract for eight years, she left Massachusetts in the spring of 2007 with tape recordings she made of 17 criminal and civil trials, court officials said. Despite demands to provide transcripts or return the tapes, which belong to the state, the officials said, she has sent back only seven recordings and some blank tapes.

Transcripts are the lifeblood of the appeal process, so the missing tapes have stymied litigants in 10 criminal and civil cases, preventing them from challenging the verdicts. * * *

Lentini, who lives in Virginia Beach, Va., said yesterday that she has returned all the tapes sought by the courts and is baffled and irritated by claims to the contrary.

"I thought this was taken care of," she said in a telephone interview. "I sent them all back. I did that last summer." * * *

The unusual dispute hardly marks the first time court reporters in Massachusetts have come under fire. In 2003, a committee of judges and lawyers appointed by the state Supreme Judicial Court issued a blistering report saying Massachusetts ranked among the worst states in providing timely, accurate transcripts.

The median time for a transcript to be delivered for appeals in criminal cases was 300 days and 141 days in civil cases. The committee headed by Appeals Court Judge Mark V. Green faulted "inadequate resources, systemic inefficiencies, and a lack of effective management."

But the allegations against Lentini are extraordinary, say court officials and lawyers involved, because she is thought to have deliberately ignored demands to provide transcripts or return the tapes so that another court reporter can prepare them.

In some instances, Lentini was one of several court reporters on a case; the other reporters have provided transcripts for the testimony they heard.

"These transcripts can't be produced without these tapes being returned," said Joan Kenney, a spokeswoman for the judiciary.

Long-time ILB readers may also recall the stories (and here) of the lengthy delay before completion of the transcript in the second David Camm murder trial. And there was the Fort Wayne case where the mother of a defendant took the court transcript and refused to return it.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to General Law Related

Ind. Decisions - Still more on: Transfer list for week ending Feb. 27, 2009

In this post earlier today I said I would have more later on the 3rd decision of note denied transfer last Thursday -- Indiana Department of Environmental Management v. Steel Dynamics.

Here is the ILB summary of the decision, from Oct. 7, 2008. And here is the language that attracted my interest:

However, a state may choose to impose more stringent regulations than those imposed by RCRA, and “‘RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes.’” Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 863 (4th Cir. 2001) (quoting Old Bridge Chems., Inc. v. N.J. Dep’t of Envtl. Prot., 965 F.2d 1287, 1296 (3d Cir. 1992)). This is not altered by the fact that IDEM simply incorporated the EPA regulations by reference. This incorporation does not, in our opinion, require IDEM to blindly follow the EPA’s interpretation of these regulations. By incorporating these regulations, they became IDEM regulations, and subject to independent IDEM interpretation, just as much as if IDEM had promulgated them itself.

As stated above, IDEM’s interpretation of the relevant statutes and regulations is reasonable, and we see no need to further address this issue, regardless of how EPA interprets these regulations, because the EPA simply sets the absolute minimums that must be met. The trial court erred by not accepting the reasonable interpretation of the agency charged with enforcing the statutes and regulations at issue.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Environment | Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Eric P. Sibbing v. Amanda N. Cave, a 19-page, 2-1 opinion, Judge Mathias writes:

Eric P. Sibbing (“Sibbing”) appeals the judgment of the Marion Superior Court in favor of Amanda N. Cave (“Cave”), individually and as the mother and guardian of Mercy M. Cave (“Mercy”), in Cave's negligence action against Sibbing stemming from an automobile accident. On appeal, Sibbing presents two issues: (1) whether the trial court erred in allowing into evidence testimony from Cave regarding medical test results and the cause of her pain, and (2) whether the trial court erred in granting Cave's motion to strike portions of the testimony of Sibbing's expert medical witness. We affirm. * * *

The trial court did not err in permitting Cave to testify as to what her physician told her about diagnostic tests and the cause of her pain. Even if this testimony did not fall within the hearsay exception contained in Evidence Rule 803(4), its admission is harmless because it was cumulative of other evidence, the admissibility of which is unchallenged on appeal. Further, Sibbing may not seek to reduce his liability by challenging the specific course of treatment chosen by Cave's medical care providers to treat the injuries caused by Sibbing's negligence. Therefore, the trial court did not err in striking those portions of Dr. Kern?s testimony in which he opined that certain treatments chosen by Cave's medical care providers was unnecessary. Affirmed.

BROWN, J., concurs.
BAKER, C.J., concurs in result in part and dissents in part with opinion. [that begins, at p. 16] I agree with the majority's conclusion that that the trial court properly allowed Cave to testify as to what Dr. Saquib told her about the diagnostic tests and the cause of her pain. However, I part ways with the determination that the trial court did not abuse its discretion in granting Cave's motion to strike Dr. Kern?s videotaped testimony regarding the reasonableness and necessity of the passive treatment and nerve conduction study that Dr. Saquib ordered.

Joseph J. Reiswerg and Cohen Garelick & Glazier v. Pam Statom - "For the foregoing reasons, we grant the petitions for rehearing but affirm the original opinion in all respects."

In D.M. v. State of Indiana , a 7-page opinion, Chief Judge Baker writes:

Appellant-respondent D.M. appeals his adjudication as a juvenile delinquent for having committed acts that would have been two counts of Theft, a class D felony, had they been committed by an adult. Specifically, D.M. argues that the finding of delinquency must be set aside because the trial court erred in admitting stolen credit cards and car keys that a school teacher seized from his jacket into evidence. We conclude that the search of D.M.'s jacket was not justified at its inception because there were not reasonable grounds for suspecting that the search would produce evidence that D.M. violated either the law or a school rule. Accordingly, we reverse and remand with instructions for the trial court to vacate D.M.'s delinquency adjudication. * * *

In addressing D.M.'s argument that the search of his jacket was improper, we note that the leading case governing searches conducted by public school officials is New Jersey v. T.L.O., 469 U.S. 325 (1985). In T.L.O., the United States Supreme Court determined that school officials are state actors fulfilling state objectives and are therefore subject to the strictures of the Fourth Amendment. Id. at 333-36. The T.L.O. court observed, however, that a school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Accordingly, the T.L.O. court dispensed with the warrant requirement and modified the probable cause requirement, holding that the legality of a search of a student depends on the reasonableness, under all of the circumstances, of the search.

For purposes of determining the reasonableness of the search, the T.L.O.. court announced a two-part test: (1) the action must be justified at its inception; and (2) the search as conducted must be reasonably related in scope to the circumstances that justified the interference in the first place. * * *

Although this court is reluctant to interfere with a school's disciplinary policies, the standard enunciated in T.L.O. commands that students' legitimate privacy rights must, nonetheless, be balanced against the need of school officials to deal effectively with the threat of drugs and violence. Because Cetto's search did not comport with the T.L.O. requirements, we are compelled to conclude that the search of D.M.'s jacket was unreasonable and the evidence seized from the jacket was improperly admitted into evidence. Accordingly, we reverse and remand with instructions for the trial court to vacate D.M.'s delinquency adjudication.

NFP civil opinions today (2):

Gradex, Inc. v. Patrick Arbuckle (NFP) - "Gradex argues that the Board erroneously concluded that (1) Arbuckle‟s employer, M&W Septic and Excavating (“M&W”), was a subcontractor of Gradex pursuant to Indiana Code section 22-3-2-14(c); and (2) M&W was financially unable to pay the worker‟s compensation award, so Gradex was required to foot the lion's share of the bill. Finding no error, we affirm."

Eric Wolfe v. Melissa Wolfe (NFP) - "The trial court did not abuse its discretion by partially denying Father’s Parenting Time Modification Petition, by denying Father’s Child Support Contempt Petition, by finding Father in contempt, and by ordering Father to pay Melissa Wolfe’s (“Mother”) attorney fees and the fees of the custody evaluator. Affirmed."

NFP criminal opinions today (2):

Rodney Deckard v. State of Indiana (NFP)

Anthony Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Be prepared to move fast if transfer is granted

Monday morning I looked at the Supreme and Appellate Court online calenders and made up the Monday ILB entry, "Upcoming oral arguments this week and next."

It was only last week that I decided to post a two-week calendar, thinking to give readers more lead time.

On Monday morning, the Supreme Court calendar listed no oral arguments for next week -- the week of March 9th.

This morning a reader dropped me a note: "I just noticed the February 19 transfer grants are set for oral argument on March 10. Is it just me or does nineteen days seem like a short time period to prepare for an oral argument before the Indiana Supreme Court?"

Actually, it is more like 11 days.

As indicated in this Feb. 19th ILB entry, Tommy D. Alvey v. State of Indiana, and Brennen Baker and Moisture Management v. Tremco Inc. and Rick Gibson, were granted transfer Feb. 19th.

A check of the docket shows the Brennen Baker parties were notified on Feb. 27 of the oral argument to take place on March 10th, the Alvey parties were also notified Feb. 27th.

Hence, be prepared to move fast if transfer is granted.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Indiana Courts | Indiana Transfer Lists

Courts - "Reasonable or Discriminatory? The Peremptory Strike Conundrum"

Some interesting reading in the WSJ Law Blog today.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Courts in general

Ind. Law - "A little push to open door to public"

The Indianapolis Star has a second editorial today supporting SB 232. Some quotes:

As expected, the measure to put teeth into enforcement of open-records and open-meetings laws had its fangs filed down considerably in committee. Yet it still meets its essential purpose of imposing consequences on public servants who refuse to carry out their legal duty to let citizens know what their government is up to.

Headed to the House on the wave of a 49-0 vote by the Senate, the bill has several provisions to promote transparency.

The principal feature would allow judges to impose fines of up to $100 for the first violation and up to $500 for succeeding offenses after citizens have sued over denial of access to information and have won.

Originally, the bill sponsored by Sen. Beverly Gard, R-Greenfield, set a maximum fine of $1,000. Even the reduced penalties are a welcome improvement upon the current situation, in which neither the courts nor the state Public Access Counselor have any force to bring to bear on an agency or public official found in defiance of the law. * * *

The Indiana Association of Counties, for one, says the proposed law would be OK if individuals were spared and agencies took the punishment. That will be an issue in the House and may wind up as another compromise for the cause. That said, we would agree with Stephen Key, general counsel to the Hoosier State Press Association, that consequences are more compelling when they're personal.

There's still more value in SB 232. It calls for Web notices of meetings and would authorize the courts and the access counselor to review blotted-out parts of records that are released to requesters.

Those requesters, it bears repeating, are not the news media in the vast majority of cases. While self-interest may play its part in a newspaper's advocacy of open government, unaffiliated taxpayers seek help from the access counselor far more often than news-gatherers. It's the people who own those records and meeting rooms. They should have the clout to do more than politely knock to be let in.

Here is the Feb. 11th editorial.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Indiana Law

Environment - "Pick of the Chick" in the news again

Updating these two ILB entries on "Pick of the Chick," Alicia Gallegos of the South Bend Tribune reports today:

A St. Joseph County farm has made some progress toward waste disposal compliance, according to a state official, after decades of reportedly violating health requirements.

Pick of the Chick egg farm, 16901 Madison Road, was the subject of a January Tribune article reporting that the farm had received orders beginning in 1991 to build a system to collect wash water from eggs and chicken waste.

Despite repeated fines and orders by the Indiana Department of Environmental Management, the farm had never completely complied, according to Marc Nelson, St. Joseph County Health department environmental manager, and had for years allowed chicken waste to overflow into county ditches, streams and groundwater. * * *

Pick of the Chick's compliance was also a discussion subject at the most recent St. Joseph County Agricultural Advisory Board meeting.

Nelson told the board that since the recent Tribune article and a resulting editorial about the farm, IDEM officials have stepped up their regulation.

Nelson said IDEM has expressed embarrassment for the decades-long case of noncompliance and the lack of enforcement.

"A couple articles in the newspaper seemed to get action very quickly," Nelson told the board.

The Pick of the Chick case has since been reassigned to different case managers, he said, who seem to have a better commitment to regulating the issue. Nelson expressed his own confidence that if the issue is not soon resolved, the farm could actually be closed.

IDEM officials plan an upcoming joint inspection of the farm with the health department, according to Sneed, "to help the farm understand what they need to do."

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Environment

Courts - "No Legal Shield in Drug Labeling, Justices Rule"

Updating yesterday's brief ILB entry on the Wyeth decision, here are some quotes from Adam Liptak's front-page story today in the NY Times:

The Supreme Court has been sympathetic in recent years to arguments that federal law should pre-empt state injury suits. Last year, in Riegel v. Medtronic, an eight-justice majority of the court ruled that many state suits concerning injuries caused by medical devices were barred by the express language in a federal law. Wednesday’s decision addressed implied pre-emption, a different legal standard.

Drug companies and other businesses, supported by the Bush administration, had hoped the Vermont case would establish broader protections. They relied not on express language in a statute enacted by Congress, as in Riegel, but on what might be implied from federal regulatory standards and policies — in this case, from the drug agency’s authority to approve drug labels.

Producers of goods as different as antifreeze, fireworks, popcorn, cigarettes and light bulbs have sought to take refuge behind federal oversight in recent years to fend off litigation. After Wednesday’s decision, those efforts are most likely to succeed if they are based on express language in a Congressional statute or a specific regulatory action that makes compliance with state requirements impossible.

The Times also has a story in the business section, by Barry Meier and Natasha Singer, headed "Drug Ruling Puts Devices in Spotlight." It begins:
An injured consumer can sue a drug maker — but not a medical device maker?

That seemed to be the contradictory result of a decision Wednesday by the Supreme Court, ruling that federal law does not protect drug companies from product liability suits in state courts.

In contrast, the Supreme Court ruled last year that federal law does bar such lawsuits against the makers of heart stents, artificial joints and other critical medical devices.

The discrepancy reflects the different legal issues in the two cases. But the fallout from Wednesday’s decision, legal experts said, could be considerable for drug and device makers alike.

Drug makers, for their part, may now face a flood of new lawsuits. They may also feel compelled to settle current litigation that would have been dismissed if the Supreme Court decision had gone their way.

Meanwhile, influential members of Congress plan to introduce a bill soon that would supersede last year’s Supreme Court device ruling, their aides say. If that legislation became law, injured people or their survivors would have the same right to sue device makers that the Supreme Court on Wednesday gave to people claiming injury or death from unsafe drugs.

The ILB has had a number of early entries, such as this one, about federal agencies, by regulation, attempting to override or preempt state laws -- stealth pre-emption. I'm unclear, however, about how or if they fit into the picture of the current decisions.

[More] Okay, this is right on point, according to an article today in the WSJ by Avery Johnson, Alicia Mundy and Jess Bravin, headed "Ruling Ripples Beyond Drug Firms ." Some quotes:

One of Wyeth's strongest arguments drew on a 2006 regulation in which the Bush administration declared that permitting product-liability suits conflicted with the FDA's role "as the expert federal agency responsible for evaluating and regulating drugs."

But Justice John Paul Stevens wrote in his majority opinion that the Bush position "is entitled to no weight." He wrote that the 2006 regulation was "inherently suspect," because it provided no evidence to support its position and gave neither states nor the public an opportunity to comment before it was issued.

The White House strategy to pre-empt state laws, which got under way in 2001, used agency regulations as a way to sidestep Congress, according to former Bush domestic policy adviser Jay Lefkowitz, who was a leader of the strategy. The policy had strong backing from the U.S. Chamber of Commerce and its Institute for Legal Reform.

In early 2005, The Bush Consumer Product Safety Commission issued a regulation barring state product-liability suits against mattress makers whose products catch fire. By the end of 2008, the administration had inserted pre-emption language into 50 different regulations from agencies including the Federal Railroad Administration, the Pipeline and Hazardous Materials Safety Administration, and the National Highway Traffic Safety Administration.

Mr. Lefkowitz said he and other officials working for Mr. Bush had believed the rule changes would be hard to undo. But the move to adopt some pre-emption outside the formal rule-making process may have backfired. Justice Stevens's harsh criticism may hold "significant implications for areas other than the regulation of prescription drugs," Mr. Lefkowitz said. It will make certain pre-emption cases "far more difficult to maintain," he said. * * *

The impact on each industry will depend on the specific laws governing it. A year ago, for instance, an 8-1 Supreme Court found that medical devices were exempt from state product-defect lawsuits as long as the manufacturer had complied with the FDA approval process. In that case, Congress had specifically pre-empted state regulation of medical devices, and implied that private suits under state law were also barred.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Courts in general

Ind. Decisions - More on: Transfer list for week ending Feb. 27, 2009

Updating this ILB entry from March 2nd ....

The entry noted: "Notable among the cases not granted transfer was LHT Capital, LLC v. Indiana Horse Racing Comm., et al."

Two more cases denied transfer last week should be noted.

The first would be Bruce Herdt, et al v. City of Jeffersonville -- the denial was the subject of a story today in the Louisville Courier Journal, reported by Ben Zion Hershberg. Some quotes:

Ending an 18-month battle, the Indiana Supreme Court has declined to take up a lawsuit challenging the biggest part of Jeffersonville’s bid to annex more than 7,800 acres and 9,000 people in Clark County.

Supporters and opponents of the takeover of the Oak Park Conservancy southeast of Allison Lane said today the decision ends the case.

“The annexation is complete,” said Larry Wilder, lawyer for the City Council.

Bruce Herdt, a leader of opponents, agreed the court battle is over.

“I’m disappointed we never got to court, because I truly believe the evidence we had” would have convinced a judge to stop the annexation, he said.

The challenge was based on opponents’ belief that Jeffersonville consultants undercounted the number of households in Oak Park by about 40 percent, leaving the plan to pay for providing municipal services to the area seriously underfunded.

But the challenge was rejected by Clark County Circuit Court and the Indiana Court of Appeals because the signatures of residents required to fight the annexation were filed two days after the lawsuit—and after the deadline for filling the challenge.

The second would be IDEM v. Steel Dynamics. I'll have more about that later this morning.

Posted by Marcia Oddi on Thursday, March 05, 2009
Posted to Indiana Transfer Lists

Wednesday, March 04, 2009

Ind. Courts - "Terre Haute Lawyer Arrested for Drunk Driving Again"

Jon Swaner reports at MyWabashValley.com:

A Terre Haute attorney previously arrested for drunk driving was arrested by police once again for the same crime.

William Earls also failed to appear at his hearing in front of a judge.

Early Saturday morning, West Terre Haute police arrested attorney William Earls for driving while intoxicated. Earls not only failed field sobriety tests, the police report also indicates he was twice the legal limit.

During his court appearance on Tuesday, the judge said Earls initially made it to his hearing set for Monday, but he left and never returned.

That forced the judge to issue a warrant for Earls' arrest.

Terre Haute police caught up with his just after 9 p.m. Monday.

Earls offered no comment as he walked to court Tuesday afternoon. His most recent arrest is his second OWI in a year and a half. * * *

It's unclear at this time how Earls' latest arrest will impact his legal career. What we do know is that Earls faces stiffer charges now that he did back in 2007. The prosecutor's office charged Earls with a felony since this was his second OWI within a five year time frame.

The Indiana Disciplinary Commission also told us he likely faces additional discipline from the state Supreme Court. * * *

After his 2007 drunken driving arrest, the state Supreme Court disciplined Earls the following year. In the complaint filed by the Disciplinary Commission, they claimed Earls admitted to drinking six beers while awaiting a trial verdict to a murder trial in which he was prosecuting in Vigo County. That happened back on August 10, 2007. The commission also cited the October 22, 2007, accident that led to Earls’ arrest.

The Supreme Court suspended earls for 180 days, however they stayed the suspension, and placed him on 24 months probation. That probation period was to begin once Earls completed his criminal probationary period on November 13 of last year. The court further said if Earls violates his probation, the commission will not only move to revoke his probation, but also asked he serve his suspension without automatic reinstatement.

Earls has been entered into the jail linkage program, which is a six-week program with Hamilton Center. He will remain jailed for the duration of that program. Judge Michael Rader recused himself from the case, and a special judge will have to set a hearing date for the new charge.

Here are several earlier ILB entries on Mr. Earls.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Indiana Courts

Law - Various gay marriage issues in the news

(1) California's Prop. 8 challenge will be argued before the California Supreme Court tomorrow. Maura Dolan of the LA Times has a story headed "California Supreme Court may reveal stance on Prop. 8 on Thursday". Some quotes:

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days. * * *

"It is one of the most important cases in the history of the California Supreme Court," said Mark Rosenbaum, legal director of the ACLU of Southern California. "The core tenet of our constitutional democracy is that fundamental rights of historically disadvantaged minorities are not dependent on the whim of the majority."

The challenges to the initiative are based on novel legal theories. Gay rights lawyers argue that the measure was an illegal constitutional revision, rather than a more limited amendment. The court has struck down constitutional amendments passed by voters as impermissible revisions only twice in its history, and there are relatively few precedents on the subject.

"While no case forecloses the revision argument, there is no case that really supports it, and most of the cases mildly cut against it," said UC Davis law professor Vikram Amar.

Upholding existing same-sex marriages would be a lower hurdle for the court, Amar and other scholars said.

"There is enough ambiguity in Prop. 8 that the court could easily interpret the measure as not applying to existing marriages," Amar said. "That is a legally plausible interpretation, and it is so clearly the just interpretation that I think getting four votes for that seems easier."

State Atty. Gen. Jerry Brown's office will ask the court to uphold the marriages and strike down the initiative as an illegal repeal of an inalienable right without compelling justification. Brown's argument is even more novel than the revision challenge, which his office said had no merit.

The Proposition 8 case has attracted more friend-of-the-court briefs than the marriage dispute that led to last year's historic ruling -- the previous record-holder. Most of the outside groups that have weighed in have asked the court to overturn the initiative.

The San Francisco Chronicle has a "viewer's guide":
How to watch: The hearing is scheduled from 9 a.m. to noon at the court's chambers at 350 McAllister St. in San Francisco. It can be viewed live on the California Channel, which is carried on Comcast cable systems in the Bay Area. The channel number varies from city to city, so check local listings.

-- A group favoring same-sex marriage will sponsor a public viewing of the oral arguments on a JumboTron in San Francisco's Civic Center Plaza.

-- A live Webcast will also be available at www.calchannel.com.

Opponents: Lawyers for two groups of same-sex couples challenging Prop. 8 will have 30 minutes each to present their case. The city of San Francisco, representing local governments opposing Prop. 8, will also have 30 minutes.

Proponents: Kenneth Starr, representing Protect Marriage, sponsor of Prop. 8, will have one hour.

Attorney general's office: Attorney General Jerry Brown's office will have 15 minutes for arguments that Prop. 8 is unconstitutional because it denies fundamental rights to a minority group. His office also will have 15 minutes, however, to counter Prop. 8 opponents' arguments that the measure is an invalid revision of the state Constitution and a violation of separation of powers.

(2) Same-sex unions with federal status.Two writers, David Blankenhorn and Jonathan Rauch, published an op-ed in the Feb. 21st NY Times headed "A Reconciliation on Gay Marriage." It is described as "A federal compromise on the issue of gay marriage that could satisfy both sides in the short run.." NPR's Talk of the Nation for March 2nd has a 17-minute discussion on the proposal.

(3) "Same-sex spouses sue federal government: Legally married couples say they suffered injustices under the Defense of Marriage Act, which deprives them of benefits accorded others." That is the headline to this story today, by Carol J. Williams, in the LA Times. It begins:

Saying they suffered injustices under the Defense of Marriage Act, a dozen legally married same-sex spouses filed suit against the federal government Tuesday, alleging that the 1996 law deprives them of a range of benefits accorded other couples.

The suit filed in Boston by the Gay & Lesbian Advocates & Defenders, or GLAD, challenges a section of the federal law denying gay couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

Legal analysts predicted it will be years before the suit makes its way through the federal court system, but said they believed it had a good chance of eventually leading to the invalidation of the act's power to discriminate on the basis of sexual orientation.

"The statute wouldn't be ripped to shreds," said Laurence H. Tribe, a constitutional law professor at Harvard Law School, "but it would be unconstitutional as applied to circumstances like these where you have two couples identically legally married in the states where they live but one is entitled to financial or other tangible benefits that the other couple can't get."

From the Boston Globe, a story by Jonathan Saltzman that begins:
Fifteen gay and lesbian residents from Massachusetts who wed after this state legalized same-sex marriages filed a discrimination suit today, challenging a federal law that defines marriage as a union between a man and a woman.

Six same-sex couples and three men whose husbands have died -- one of the deceased was retired congressman Gerry E. Studds -- said in the suit that the 1996 Defense of Marriage Act treats them like second-class citizens and is unconstitutional. The 92-page complaint was filed in US District Court in Boston.

The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples.

Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse's last name on a passport.

"Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples " is the headline to this story in the NY Times. NPR's Morning Edition has this nearly 5-minute story March 3rd.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to General Law Related

Ind. Decisions - 7th Circuit rules in one Indiana case today

In Williams v. Lemmon (SD Ind., Judge McKinney), a per curiam 15-page opinion in a case argued Oct. 2, 2007, the Court writes:

An Indiana jury found Ronald Williams guilty of murder, and the state trial court sentenced him to 75 years’ imprisonment. Williams’s conviction and sen- tence were upheld on direct appeal and on collateral review in the Indiana courts. Williams then petitioned for a writ of habeas corpus. The district court denied that petition. We issued a certificate of appealability on the question whether his trial counsel rendered constitution- ally deficient assistance. On appeal Williams faults trial counsel for failing to interview one of two other people who arrived at the scene where the murder was com-mitted. * * *

Unless counsel never can rely on statements taken by the police, a state court does not act unreasonably when holding that choices such as Inman’s fall short of ineffective assistance. Because the Supreme Court has not established such a per se rule we do not have a single “egregious” omission that spoils what was otherwise a competent defense. Given the state court’s findings of fact, and the context of the complete work Inman did for his client, the state judiciary’s decisions cannot be set aside under the standard of §2254(d). AFFIRMED

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Gina Johnson v. Robert C. Johnson, a 10-page opinion, Judge Darden writes:

Gina Johnson (“Wife”) appeals the trial court’s order granting Robert Johnson’s (“Husband”) motion to have Wife’s judgment lien subordinated. * * *

More importantly, however, the parties failed to specifically address Wife’s lien or its priority, if any, over other liens in the Settlement Agreement. In fact, the Settlement Agreement did not even recognize that Wife would have a judgment lien. Such an omission occurred despite both parties having knowledge of the line of credit; its necessity for maintaining Sunset Dairy’s operations; and representation of both parties by counsel. Thus, we cannot say, where Wife’s judgment lien originally was subordinate to the Bank’s lien and the Settlement Agreement did not address the priority of Wife’s judgment lien, the trial court modified the Settlement Agreement. Rather, it sought to enforce the Settlement Agreement as written. Cf. Phillips v. Delks, 880 N.E.2d 713, 723 (Ind. Ct. App. 2008) (finding no improper modification of a property settlement agreement, which provided that the husband would become the sole owner of the parties’ vehicle, where trial court did not order the husband to transfer the ownership of the vehicle to the wife, but rather ordered him to sell or refinance it). We find no error. Affirmed.

Jason McReynolds v. State of Indiana - "Jason McReynolds appeals his conviction for class D felony battery of a person less than fourteen years of age, asserting that the evidence is insufficient. We affirm. * * *

" Clearly, the force was disproportionate to the offense, unnecessarily degrading, and could even result in permanent scarring and long-term emotional trauma. Accordingly, we affirm McReynolds’s conviction for class D felony battery."

NFP civil opinions today (0):

NFP criminal opinions today (5):

Reginald R. Bragg v. State of Indiana (NFP)

Willie L. Joseph v. State of Indiana (NFP)

Ricky Bingham v. State of Indiana (NFP)

Robert Freeman v. State of Indiana (NFP)

Kara Crisp v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Is a city attorney working on contract subject to the statutory prohibition against advance payment?

Jill Blocker of the Muncie Star-Press has an interesting story today. Some quotes from the story, headed "Gaston attorney's contract stirs up controversy":

[Ralph E.] Dowling's contract stated he would be paid his $5,000 compensation in two installments: $2,500 by Jan. 31, and $2,500 by Sept. 1. He also receives $150 an hour for his attorney services.

Believing the contract is against Indiana Code, because Dowling would be getting paid in advance of any work he performed, Gaston Clerk-treasurer Jennifer Shell initially withheld his first payment.

"When I talked to State Board of Accounts they said that you can't pay in advance for services not yet rendered," Shell said.

Indiana Code 5-7-3-1 states that public officers may not draw or receive their salaries in advance.

Dowling told The Star Press his contract was the same as that of previous city attorneys. [Andrea Koontz, Gaston board president], however, acknowledged that she wrote the early payment into the contract herself because there were a number of cases Dowling needed to work on right away. She said the code doesn't apply to Dowling's case because he is not a public officer. The second board member who signed the contract, Joe Hardwick, said he was unaware of any clauses that allowed Dowling to be paid in advance of services.

"He's not appointed or elected to office," Koontz said. "He just applied."

Indiana Code 5-13-4-21 states that a public officer is anyone elected or appointed to any office of the state or any political subdivision, including an officer of all boards, commissions, departments, institutions, and other bodies established by law, that are supported wholly or partly by appropriations of money made from the treasury of the state or political subdivision or that are supported wholly or partly by taxes or fees. State Board of Account officials contend that includes a town attorney like Dowling.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Indiana Government

Courts - SCOTUS rules federal approval of labels giving warnings about effects of drugs does not bar lawsuits under state law

This was a much anticipated ruling - see earlier ILB entries here.

See Lyle Denniston's summary of today's ruling here, at SCOTUSBlog. Here is the opinion.

[More] The WSJ Law Blog's just-posted entry notes: "The decision is the second this term that rejected business groups’ arguments that federal regulation effectively preempts consumer complaints under state law.."

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Courts in general

Ind. Decisions - Supreme Court holds that the shopping center owners are not entitled to consequential damages from street reconfigurations that affect traffic flow

In State of Indiana v. Kimco of Evansville, Inc., et al, a 14-page, 3-2 opinion, Justice Boehm writes:

In State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960), this Court held that roadway improvements that reduce or interfere with traffic flow to a commercial property do not constitute takings of a property right of the owner of the property. We reaffirm Ensley and hold that the shopping center owners are not entitled to consequential damages from street reconfigurations that affect traffic flow through the center and prevent expansion of existing points of ingress or egress, but leave existing points in place. * * *

The jury awarded Kimco $2,300,000.

The State appealed, arguing that the trial court erred by admitting Kimco‘s loss-of-access evidence and by giving the quoted instruction. See State v. Kimco of Evansville, Inc., 881 N.E.2d 987 (Ind. Ct. App. 2007). The Court of Appeals affirmed, concluding that the sum of the State‘s roadway improvements created an injury to Plaza East that amounted to more than mere inconvenience, and that Kimco suffered a taking of its access rights as a matter of law. The Court of Appeals held that the trial court therefore properly admitted Kimco‘s loss-of-access evidence and that the court properly instructed the jury on the compensability of lost access. We granted transfer. * * *

There is no question that an exercise of eminent domain, such as the condemnation of the 0.154-acre strip in this case, is a constitutional "taking." Other forms of governmental action, however, are "takings" only if they meet the prevailing federal standard, which is that govern-ment action effects a taking if it deprives an owner of all or substantially all economic or produc-tive use of his or her property. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538–40 (2005). Factors considered under the foregoing test include the economic impact of the regulation on the property owner, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the government action. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). The effects of the road improvements on Plaza East, if viewed separately from the taking of the 0.154-acre strip, plainly do not meet the Lingle test. Presumably for this reason Kimco presents its case in terms of Indiana case law. Because recent constitu-tional takings cases to some extent have modified Indiana case law, a discussion of these consti-tutional cases is useful background. [ILB - the review follows on pp. 6-7.] * * *

Indiana law has specifically addressed the damages to adjacent landowners from reconfigured highways. Many of the principles applicable to this case come from this Court‘s opinion in State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960). * * *

The principles announced in Ensley have since been applied and clarified in a series of eminent domain cases dealing with traffic flow issues and rights of ingress/egress. Each of these cases addresses a unique set of facts, but collectively they affirm the distinction first drawn in Ensley: although an elimination of rights of ingress and egress constitutes a compensable taking, the mere reduction in or redirection of traffic flow to a commercial property is not a compensable taking of a property right. * * *

Given the record testimony assessing the compensable takings at no more than $100,700, the $2,300,000 verdict is excessive as a matter of law. The judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

Shepard, C.J., and Sullivan, J., concur.
Dickson and Rucker, JJ., dissent, believing that the Court of Appeals correctly decided this case.

Appendix A - [Before and after diagrams]

Here is the ILB entry from Aug. 25, 2008 that includes links to the COA opinion and oral argument webcast.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Muncie mayoral election dispute set for oral argument

Updating this ILB entry from Feb. 24th, that includes links to earlier related stories, plus court filings ...

"Mansfield v. McShurley ... the saga continues" is the headline to a story today in the Muncie Star-Press, reported by Rick Yencer:

MUNCIE -- The legal challenge of Republican Mayor Sharon McShurley's election by Democrat James Mansfield is still very much alive.

The Indiana Court of Appeals set a hearing for next month after denying McShurley's move to dismiss the case last year. The court will hear oral arguments on Mansfield v. McShurley and the Delaware County Election Board during "Know Your Rights Week" on the Purdue University campus April 14. * * *

Mansfield, executive director of the Muncie Visitors Bureau, initially prevailed in the 2007 city election, but then lost by 13 votes after 19 absentee ballots were thrown out because they were not initialed by a Republican election clerk. Special Judge Joel Roberts of Jay County then denied Mansfield's effort to hold a special election for disenfranchised voters in Precinct 46 where the absentee ballots were tossed out.

Indianapolis attorney William Groth, representing Mansfield, said Tuesday that the trial court erred by dismissing Mansfield's statutory contest as being untimely, although he had no way of knowing McShurley's recount petition would result in absentee ballots being thrown out.

"Mansfield filed his contest petition promptly after the recount commission certified his opponent as the winner," Groth said, adding that under a 2003 Indiana Supreme Court decision, Pabey v. Pastrick, the trial court should have entertained Mansfield's contest petition even though it was filed beyond the deadline in the statute.

By failing to give Mansfield access to the court, Groth also argues the trial court violated Mansfield's constitutional rights to equal access to election remedies in the law, as well as disenfranchising voters.

Mansfield seeks a special election in Precinct 46 that would ultimately decide who won the 2007 election.

"Indiana law typically allows for special elections," said Groth.

Indianapolis attorney David Brooks, representing McShurley, said the law also was clear on absentee ballots, saying those without the initials of both Republican and Democratic clerks were invalid.

"You don't have statutory or case law authority for a special election under these circumstances," said Brooks, adding he was comfortable that the trial court followed the law in dismissing Mansfield's complaint.

Brooks said there was nothing new or different in Mansfield's appeals arguments that the trial court rejected, although he said he was unsure what the appeals court would do.

Mansfield hopes the appeals court will correct problems in the law that allows only an election loser to contest election results with no remedy for a winner who becomes a loser in a recount, he said.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Indiana Courts

Law - "You’re Dead? That Won’t Stop the Debt Collector "

So reads the headline to this long story today in the NY Times by David Streitfeld. Some quotes:

MINNEAPOLIS — The banks need another bailout and countless homeowners cannot handle their mortgage payments, but one group is paying its bills: the dead.

Dozens of specially trained agents work on the third floor of DCM Services here, calling up the dear departed’s next of kin and kindly asking if they want to settle the balance on a credit card or bank loan, or perhaps make that final utility bill or cellphone payment.

The people on the other end of the line often have no legal obligation to assume the debt of a spouse, sibling or parent. But they take responsibility for it anyway. * * *

Dead people are the newest frontier in debt collecting, and one of the healthiest parts of the industry. Those who dun the living say that people are so scared and so broke it is difficult to get them to cough up even token payments.

Collecting from the dead, however, is expanding. Improved database technology is making it easier to discover when estates are opened in the country’s 3,000 probate courts, giving collectors an opportunity to file timely claims. But if there is no formal estate and thus nothing to file against, the human touch comes into play.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to General Law Related

Courts - Sandra Day O'Connor was on The Daily Show last night

Here is a USA Today pre-story. The clips to parts 1 and 2 are available here and here.

Posted by Marcia Oddi on Wednesday, March 04, 2009
Posted to Courts in general

Tuesday, March 03, 2009

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

In US v. Brazelton (ND Ind., Judge Miller), a 10-page opinion, Judge Coffey writes:

Appellant Brazelton argues that his conviction should be set aside, arguing that one of the jurors seated was related to the victim in the shooting that led to Brazelton’s arrest and the search of his home. He makes this argument even though the victim did not testify and his name was not mentioned again after it was mentioned at voir dire. More importantly, though, Brazelton waived the issue raised for argument at trial even though he was aware of the juror's relationship at voir dire, and told the judge during the juror selection process that he did not want the juror to be struck for cause.

Brazelton also claims, and the government concedes, that he should be resentenced in light of Kimbrough v. United States, 128 S. Ct. 558 (2007) because the district court followed the then-governing case law rejecting Brazelton’s argument that the court had discretion to impose a below-guidelines sentence based on a disagreement with the crack-powder ratio. We agree and remand for resentencing and we affirm Brazelton’s conviction. * * *

In this circuit, there is no ambiguity on the question whether the right to an impartial jury can be waived. We have held that “[t]he Sixth Amendment right to an impartial jury, like any constitutional right, may be waived.”

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Ind. (7th Cir.) Decisions

Environment - More on: "IDEM updates compliance and enforcement policy to reflect changes to agency structure"

Updating yesterday's ILB, Gitte Laasby reports today in the Gary Post-Tribune in a story that begins:

The Indiana Department of Environmental Management is not backing down from its controversial new enforcement policy.

IDEM posted a version with minor changes on its Web site Monday. The agency mainly revised its October draft to reflect that it no longer has a separate enforcement branch. The new draft does not address concerns that the policy would make it tougher for IDEM staff to enforce against polluters who violate their permits. * * *

The policy is now up for public comment for 45 days. After that, IDEM will take it to the state's air and water pollution control boards and to the solid waste management board before it takes effect.

The procedure for IDEM's putting a nonrule policy document (NPD) into effect is set out in IC 13-14-1-11.5(b) Subsection (a) states: "the proposed policy or statement may not be put into effect until the requirements of subsection (b) have been met."

Basically under subsection (b), for at least 45 days before it presents the policy to the appropriate environmental board or boards, IDEM must post the proposed NPD and associated information on the IDEM website, along with the date, time, and location of the presentation to the appropriate board, and information on how to submit comments.

That is it. After presentation of the proposed NPD to the appropriate board (the board really has no say, there is no provision for a vote, etc.), IDEM is to send it to the Indiana Register for publication. But the last step for effectiveness is presentation to the board(s).

Thus, I would disagree with that part of the Tribune story that quotes an environmental representative as stating:

* * * the public comment period must be noticed in the Indiana Register, but wasn't.

"If they did, they certainly didn't follow the statutory requirements," she said. "I have checked listings of the Indiana Register for September, October and November and there are no such notices."

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Environment

Ind. Decisions - "Special prosecutor to take impersonation case "

The Court of Appeals decision Feb. 27th in the case of Bruce Jones v. State of Indiana -- see ILB summary here, 4th case --- is the subject of a story today by Justin Leighty of the Elkhart Truth. The story begins:

The Indiana Court of Appeals ruled last week that Curtis Hill's office shouldn't be prosecuting a man accused of impersonating Hill, and ordered the re-appointment of a special prosecutor to handle the case.

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Mishawaka loses bid to hold Uniroyal liable for Mishawaka’s clean up costs

Updating this ILB entry from Feb. 27th, Sue Lowe of the South Bend Tribune today has this story. The story begins:

MISHAWAKA — The company that is all that’s left of Uniroyal does not have to pay the city of Mishawaka for costs it incurred cleaning up pollution at the old Ball Band/Uniroyal site near downtown.

A federal judge has ruled that Uniroyal Holding Inc. is not responsible for the cost of cleaning the site on the St. Joseph River at Main Street.

"It’s not good news for the city," Mayor Jeff Rea said of the ruling by U.S. Magistrate Judge Christopher A. Nuechterlein.

He said lawyers representing the city are exploring the city’s options.

"We believe the people we’re dealing with (Uniroyal Holding) have some responsibility," Rea said.

The suit is being handled by the law firm of Plews Shadley Racher & Braun.

Rea said the firm won’t get paid unless they collect money for the city.

However, he said the city is probably out as much as $6,000 for producing documents and other evidence.

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Ind Fed D.Ct. Decisions

Environment - "Prison for toxic polluter;" Hassan Barrel site in Fort Wayne

An ILB entry from July 4, 2007 quotes an AP story headed "Company president indicted over toxic waste storage."

Today Rebecca S. Green reports in the Fort Wayne Journal Gazette:

Before he was sentenced for causing millions of dollars in damage with toxic waste, Alan D. Hersh had plenty to say.

He chatted with attorneys and investigators inside the massive U.S. District Court room Monday afternoon, talking about driving with his dog in the car and making small talk about Indiana industry.

But when U.S. District Judge Theresa Springmann asked him whether he had anything to say before she sentenced him to 15 months in federal prison and ordered him to start paying immediately on $1.7 million in restitution, Hersh fell silent.

And when approached in the hallway after his hearing for comment on the environmental disaster he created at the former Fort Wayne-based Hassan Barrel Co., he offered no more than a grunt and a dismissive wave of his hand.

So the last word went to Springmann, who in court and in a 12-page sentencing memorandum found Hersh's remorse and understanding of the damage he caused less than complete or convincing. * * *

[The] crime involved walking away from the company's 7-acre Summer Street site, leaving thousands of barrels leaking paint wastes and caustic chemicals and open pits where the company apparently dumped hazardous material into the ground, according to court documents.

The Hassan Barrel site was a few blocks from Adams Elementary School. The soil at the abandoned facility is contaminated with what leaked from the barrels, including butanone, ethyl-benzene and toluene, cadmium, chromium, lead and mercury. The chemicals cause a range of health problems from cancer to kidney and liver damage and lung problems.

At last tally in November, the Environmental Protection Agency had spent $1.7 million on cleanup at the site.

Here are earlier ILB entries on Hassan Barrel.

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Environment | Ind Fed D.Ct. Decisions

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

For publication opinions today (1):

In Gary West, et al. v. The City of Princeton , a 12-page opinion, Judge Bradford writes:

Appellants/Remonstrators Gary West, et al., (“Appellants”) appeal from the trial court’s denial of their motion for summary judgment and its judgment in favor of Appellee/Respondent the City of Princeton. Appellants contend that the trial court erred in denying their summary judgment motion because Princeton allegedly failed to strictly comply with the relevant notice statute. Moreover, Appellants contend that the trial court’s judgment is clearly erroneous in several respects. We affirm the judgment of the trial court and its denial of Appellants’ summary judgment motion.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Donald Cassetty v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court Seeks Public Comment as it Considers Clarifying What Constitutes Pro Bono Work and a Rule Change Regarding Change of Venue

The Indiana Supreme Court is interested in obtaining comments from judges, attorneys and the public as it considers changes in two specific areas.

Here is the notice and request for comments. These are due April 30, 2009.

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Indiana Courts

Ind. Courts - Indiana Supreme Court is interested in receiving comments concerning whether custodial interrogations in criminal investigations should be electronically recorded

From the Supreme Court:

The Indiana Supreme Court is interested in receiving comments from the bench, bar and public concerning (1) whether it should adopt a rule requiring that custodial interrogations in criminal investigations be electronically recorded in some circumstances, and (2) if so, the appropriate content of such a rule. To that end, the Court asked the Committee on Rules of Practice and Procedure to develop and publish such a rule.
In the request, two prototypes of a custodial interrogation rule are presented, along with some arguments for and against. Comments will be accepted through April 30, 2009.

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Indiana Courts

Ind. Decisions - Marion County Judge rules cap on punitive damages is unconstitutional [Updated]

Note this is about the punitive damages cap itself, not the allocation requirement. Jon Murray reports today in the Indianapolis Star in a lengthy story. Here are a few quotes:

A Marion County judge has ruled that state lawmakers violated the Indiana Constitution when they set a limit on monetary damages juries could impose to punish defendants in lawsuits.

For now, Marion Superior Court Judge David Dreyer's ruling won't directly affect other cases. Limits on punitive damages -- to three times the compensatory damages or $50,000, whichever is greater -- likely will stand until Indiana's appeals court weighs in.

Some legal experts think the ruling will be overturned. They say lawmakers exercised a valid power when they restricted punitive damages and did not infringe on the authority of the courts. While Indiana law restricts punitive damages, it doesn't limit damage awards that compensate a plaintiff for actual losses or pain and suffering.

The ruling came Friday in case where a jury had awarded a Greene County man $5,000 in compensatory damages in his sexual abuse lawsuit against a priest. Jurors also added $150,000 in punitive damages, which would have to be reduced under the cap to $50,000.

But when the priest's attorneys asked Dreyer to reduce the award, he ruled the limits were unconstitutional. * * *

As his rationale, Dreyer cited the separation of powers between the legislative and judicial branches as well as the right to a trial by jury that is among the core values of the state constitution.

"The Statute's two provisions . . . interpose the will of the General Assembly to supersede otherwise valid jury verdicts," Dreyer wrote in the decision. * * *

The Indiana Supreme Court hasn't ruled directly on the punitive damage limits the General Assembly approved in 1995. But it has addressed another part of the law, upholding in a 3-2 ruling in 2003 a provision requiring successful plaintiffs to cede 75 percent of punitive damage awards to the state. The Indiana Violent Crime Victim Compensation Fund gets those funds.

The 2003 Indiana Supreme Court decision referenced in the story is Cheatham v. Pohle. Here is what the ILB wrote at the end of a 5/15/2004 entry:
And what of Indiana? Indiana's punitive damages allocation statute, IC 34-51-3 [Sec. 4 is the cap; Sec. 6 is the allocation] , provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. This law was enacted in 1998. The law was challenged and upheld by the Indiana Supreme court in the case of Cheatham v. Pohle (5/30/03). Access the ILB coverage of the opinion here. The 7th Circuit recently relied on Cheatham in its opinion in Juarez v. Menard, Inc. (April 2004). See ILB coverage here. A quote from the 7th Circuit opinion:
Punitive damages, however, go beyond compensating a tort victim for a cognizable wrong. They are designed to deter and punish wrongful activity, and as such, are quasi-criminal in nature. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). Under Indiana law, which we must apply in this diversity action, (see Erie R.R. Co. v. Tompkins, 304 U.S 64, 78 (1938)) civil plaintiffs have no right to receive punitive damages. Cheatham, 789 N.E.2d at 472. And, in fact, the Indiana General Assembly has demonstrated a disinclination toward allowing unchecked punitive damages awards by enacting legislation that limits the amount of money a plaintiff may receive from a punitive damages award (IC 34-51-3-6) and by requiring that a plaintiff establish the facts warranting an award of punitive damages by clear and convincing evidence rather than the usual preponderance of the evidence standard. IC 34-51-3-2. Thus in Indiana, before a court may award punitive damages, a plaintiff must demonstrate by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness that was not the result of mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. [cites deleted] Moreover, a trier of fact is not required to award punitive damages even after finding all of the facts necessary to justify the award. Cheatham, 789 N.E.2d at 472. The requirements for an award of punitive damages, therefore, go far above and beyond those required for a finding of negligence.
The Indiana Supreme Court also ruled, in the case of Stroud v. Lints (6/25/03), issued a few weeks after Cheatham, that "the amount of punitive damages awarded by a trial court is subject to appellate review de novo." In Stroud the Court remanded "so that the trial court may enter an award of punitive damages in an amount reflecting proper consideration of the defendant's financial status." [ILB - The IC 34-51-3-4 limit is not addressed.]
In an Oct. 16, 2005 ILB entry, a Court of Appeals Sept. 14, 2005 decision, Ricky Westray, et al v. Delores Wright, et al., is discussed. The COA addressed a trial court ruling reducing the punitive damages award from $15,000,000 to $3,435,000. The trial court reduced the punitive damages award based on IC 34-51-3-4. See p. 8 and ftnote 4. The COA, however, does not further address the statute. Instead it concludes:
Ultimately, therefore, the punitive damages award was inappropriate insofar as it was designed to punish Bekins directly. * * *

In sum, we conclude as follows: (1) the jury’s finding of negligence with respect to appellants and its corresponding award of compensatory damages are appropriate; and (2) the jury’s award of punitive damages was inappropriate inasmuch as there was not clear and convincing evidence that Westray or Bekins acted with the mental state sufficient to sustain such an award.

The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

[Updated] Here is a copy of Judge Dreyer's order in the case, John Doe v. Father Jonathan Lovill Stewart.

Posted by Marcia Oddi on Tuesday, March 03, 2009
Posted to Ind. Trial Ct. Decisions

Monday, March 02, 2009

Environment - "IDEM updates compliance and enforcement policy to reflect changes to agency structure"

IDEM has today issued a press release headed "IDEM updates compliance and enforcement policy to reflect changes to agency structure." What I understand it to mean is that they have amended the long-pending revised policy document, 08-006-NPD, which has suddenly disappeared from their webpage, and updated it to reflect the fact that the Office of Enforcement was abolished. However, I can't be sure because the earlier proposal is no longer available. Here is the new document.

For background, see this list of ILB entries, and particularly this one from Dec. 19, 2008.

Here is today's press release:

Today, the Indiana Department of Environmental Management (IDEM) unveiled a new policy to help businesses and citizens understand the agency’s compliance and enforcement process. The Compliance and Enforcement Response Policy (CERP) is available for public comment over the next 45 days.

“Revising the CERP was necessary to bring the policies and procedures up-to-date with current agency structure and operations,” said IDEM Commissioner Thomas Easterly. “The updated policy will inform Hoosiers about IDEM’s compliance process. I encourage everyone to read the policy for themselves and participate in the public comment process.”

Revising and formally adopting the CERP establishes a clear process for referring compliance violations to IDEM’s enforcement program. Changes in the current document reflect the integration of IDEM’s enforcement activities into the compliance branches.

Additionally, the CERP categorizes compliance violations into three classes and prioritizes severe violations. Based on the severity of the violation, the policy directs IDEM’s initial response, ranging from an immediate enforcement referral to technical assistance provided by compliance staff. The policy defines how enforcement will be used as a tool to achieve compliance in the three classes of violations.

“IDEM’s goal continues to be increased compliance with environmental regulations,” said Commissioner Easterly. “This revision has been an extensive process to provide a clear and accurate document that will be helpful to agency staff, Hoosiers and businesses.”

The CERP can be found online [here]. Details on the public comment process, including how to submit comments, are included on the Web page. After the public comment period, the policy is reviewed by four of Indiana’s environmental boards before going into effect.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Environment

Ind. Decisions - Supreme Court issues one today,

In In the Matter of Robert E. Lehman, a 4-page per curiam opinion in an attorney disciplinary action, the majority writes:

We find that Respondent, Robert E. Lehman, engaged in attorney misconduct by committing the federal felony of willfully making a false tax return. * * * For his misconduct, we find that Respondent should be disbarred from the practice of law in this state. * * *

For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent. * * *

Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan and Rucker, JJ., concur, except that they would impose a three-year suspension without automatic reinstatement.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending Feb. 27, 2009

Here is the transfer list for the week ending Feb. 27, 2009. It is six pages long.

Six transfers were granted last week, in five cases; see details in this ILB entry from Feb. 27th.

Notable among the cases not granted tranfer was LHT Capital, LLC v. Indiana Horse Racing Comm., et al. - see ILB entry from August 7, 2008 here, and on reh. den. here. For even more, see this ILB entry from Jan. 2, 2009, headed "Quirks of the Rules of the State Lottery Commission and Horse Racing Commission."

Five 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, March 02, 2009
Posted to Indiana Transfer Lists

Courts - "Supreme Court Enters the YouTube Era "

Adam Liptak's column in tomorrow's NYT will be titled "Supreme Court Enters the YouTube Era ." The article begins:

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or legal precedent but rather to a video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence verité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

In 2007, for instance, the Supreme Court considered the case of a Georgia man who was paralyzed when his car was rammed by the police during a high-speed chase. The chase was recorded by a camera on the squad car’s dashboard, and that video dominated the court’s analysis.

The 70-page, Jan. 2009 Harvard Law Review article, "WHOSE EYES ARE YOU GOING TO BELIEVE? SCOTT V. HARRIS AND THE PERILS OF COGNITIVE ILLIBERALISM," by Dan M. Kahan, David A. Hoffman, and Donald Braman, is available here. More from the NYT column:
The court posted the video on its Web site. “I suggest that the interested reader take advantage of the link in the court’s opinion and watch it,” Justice Breyer said in a concurrence.

Three law professors accepted that invitation and made it the basis of an interesting study published in January in The Harvard Law Review. They showed the video to 1,350 people, who mostly saw things as the justices did. Three-quarters of them thought the use of potentially deadly force by the police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who don’t make much money and those who live in the Northeast were, the study found, “much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris’s vehicle unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by judges.

Many judges do not seem to understand, said Jessica Silbey, a law professor at Suffolk University in Boston, that video is not categorical or irrefutable proof like DNA but only a partial, volatile and dangerously persuasive account of what happened.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Courts in general

Ind. Courts - Judicial Center's Legislative Update #7

This is the mid-session review:

We have reached the halfway point of the session. This installment is a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Indiana Courts

Courts - "W.Va. mining case could shape U.S. judicial races"

A good preview of tomorrow's SCOTUS argument in Caperton v. Massey can be found here, written by Lyle Denniston, at SCOTUSBlog.

The Charleston West Virginia Gazette-Mail has a story Sunday headed "W.Va. mining case could shape U.S. judicial races".

"Case May Define When a Judge Must Recuse Self: W.Va. Justice Ruled for a Man Who Spent Millions to Elect Him," is the headline to a story today by Robert Barnes in the Washington Post.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Courts in general

Ind. Law - This week at the General Assembly - Week 8

Bryan Corbin's weekly "Legislative Notebook" report appears today in the Evansville Courier & Press with this headline: "State Senate, House to swap bills." It begins:Like turning over an old LP record onto its flipside, the Indiana General Assembly starts afresh this week.

The Indiana House passed and sent bills to the state Senate, and the Senate sent its bills to the House, ahead of last Wednesday's midsession deadline.

Now each side will take apart the other's bills, often recrafting or entirely rewriting them, setting the stage for late-session haggling to reach compromises before the April 29 adjournment deadline.

Senate President David Long warned there could be an "overtime" special session if the Legislature cannot agree on how to fix the state's insolvent unemployment insurance trust fund by that deadline.

"If people aren't willing to roll up their sleeves and work to find a solution, we could be here until the end of May working on this particular issue," Long, R-Fort Wayne, said last week.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Indiana Law

Ind. Decisions - 7th Circuit considers doctrine of impossibility in Wisconsin opinion

Wis. Electric Power Company v. Union Pacific RR is a 13-page opinion by Judge Posner that begins:

WEPCO, an electric utility that is the plaintiff in this diversity suit for breach of contract (governed by Wisconsin law), appeals from the grant of summary judgment to the defendant, the Union Pacific railroad. The contract was for the transportation of coal to WEPCO from coal mines in Colorado between the beginning of 1999 and the end of 2005. The appeal presents two issues: whether a force majeure clause in the contract authorized the railroad to increase its rate for ship- ping the coal, and whether the railroad breached its duty of good-faith performance of its contractual obligations by failing to ship the tonnage requested by WEPCO on railcars supplied by the railroad.

The doctrine of impossibility in the common law of contracts excuses performance when it would be unreasonably costly (and sometimes downright impossible) for a party to carry out its contractual obligations.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit withdraws Feb. 27th opinion

In this ILB entry from Feb. 27th, the ILB reported the 7th Circuit opinion in US v. Dunson, where the per curiam panel affirmed a SD Ind. opinion by Judge Tinder.

Today this 7th Circuit has posted this document, withdrawing the Feb. 27th opinion and vacating the judgment.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Kernan-Shepard local government reform bills scorecard

The Evansville Courier & Press has a mid-session scorecard of the commission on local government reform's recommendations.

It accompanies this long story by Bryan Corbin on SB 512, headed "Warm welcome unlikely for reform bill: Diluted rewrite on townships may not get House hearing."

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In In the Matter of the Stuart Cochran Irrevocable Trust; Chanell and Micaela Cochran v. Keybank, N.A., a 22-page opinion, Chief Judge Baker writes:

Appellants-petitioners Chanell and Micaela Cochran (the Beneficiaries) appeal the trial court’s order entering final judgment in favor of appellee-respondent KeyBank, N.A. (KeyBank), on the Beneficiaries’ petition seeking an accounting and alleging that KeyBank had breached its obligations as Trustee. The Beneficiaries argue that the trial court erroneously concluded that KeyBank did not violate the prudent investor rule and or breach its duties as trustee. Finding no error, we affirm. * * *

In sum, we find that the trial court did not erroneously conclude that, while KeyBank’s decisionmaking process and communication with the Beneficiaries was not perfect, it was sufficient. Although it is tempting to analyze these cases with the benefit of hindsight, we are not permitted to do so, nor should we. KeyBank chose between two viable, prudent options, and given the facts and circumstances it was faced with at that time, we do not find that its actions were imprudent, a breach of any relevant duties, or a cause of any damages to the Beneficiaries.

NFP civil opinions today (0):

NFP criminal opinions today (3):

David Nibbs v. State of Indiana (NFP)

John Dixon v. State of Indiana (NFP)

Benjamin Zell v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - "Minitruck" bill passes first house, while golf cart bills remain in committee

A discussion in the middle of LCJ Reporter Lesley Stedman Weidenbener's lengthy interview today on Sen. Richard Young, D-Milltown caught my attention:

Q: You authored a bill that would legalize the use of minitrucks, which are tiny versions of pickup trucks. What happened with that bill?

A: It didn't get a hearing in the Senate, but it has been heard and passed out of the House and that bill is coming to me (to sponsor in the Senate).

It's important to me because I have dealers in my Senate district that are selling these vehicles and they feel like that by allowing these to be used on state roads, other than interstates, as they are in many other states, they will have a broader market for their products.

It could bring some economic improvement to my district and to the state.

Q: What are minitrucks?

A: They run about 60 mph. That's about the top speed. They have enclosed cabs, unlike ATVs. They have to have all the safety devices, turn signals that any other vehicles used on the highway would have. But their gas mileage is infinitely better than traditional vehicles.

Like the reporter, the ILB has never before heard of "mini-trucks." But it has posted many entries on golf carts and on the sustained interest of citizens all around the state in being able able to legally use the economical golf cart as transport on city streets. Five bills to accomplish this goal were introduced this year, all remain in first house committee.

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court:

This Thursday, March 5th:

9:00 AM - James H. Helton, Jr. v. State of Indiana - Helton pleaded guilty to possession of methamphetamine with intent to deliver, a class A felony. The Elkhart Superior Court denied post-conviction relief. The Court of Appeals reversed, finding that Helton had been denied the effective assistance of trial counsel as a matter of law with respect to the failure to file a motion to suppress evidence. Helton v. State, 886 N.E.2d 107 (Ind. Ct. App. 5-16-2008), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

9:45 AM - Thomas Williams v. Kelly Tharp - Plaintiffs filed a complaint against Papa John's restaurant and its employee, alleging defamation, false imprisonment, intentional infliction of emotional distress and other claims. A Papa John's employee reported one of the plaintiffs had "pulled out a gun" while in the restaurant, but police found no gun. The Hamilton Circuit Court entered summary judgment for the employee and Papa John's. The Court of Appeals reversed. Williams v. Tharp, 889 N.E.2d 870 (Ind. Ct. App. 7-/11/2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of 7/11/08 COA opinion here. Here is a list of earlier ILB entries on this case, including several press stories.]

Next week's oral arguments before the Supreme Court:

None currently scheduled.

Webcasts will be available here.
_______________________________________________________________________________

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

None scheduled

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

This Tuesday, March 3th:

3:00 PM - Indiana Patient's Compensation Fund v. Gary Patrick - This is an appeal from the trial court's entry of judgment in favor of a father after witnessing the death of his adult son. The issue on appeal is whether the trial court erred in denying PCF's Motion For Summary Judgment and awarding emotional distress damages to father where (a) such damages are not recoverable under the Adult Wrongful Death Act and (b) father does not have an "independent claim" under the Medical Malpractice Act for the emotional distress he alleges he incurred as a result of the malpractice in the treatment of his son. The Scheduled Panel Members are: Judges Riley, May and Robb. [Where: Baxter Hall, Campus of Wabash College, 301 Wabash Avenue, Crawfordsville, Indiana]

This Thursday, March 5th:

1:00 PM - Bruce C. Scalambrino, et al vs. Town of Michiana Shores, et al - Appellants-Plaintiffs filed suit against the Town of Michiana Shores, several individual defendants, and T-Mobile regarding a lease between the Town and T-Mobile allowing erection of a cell phone tower on Town property. Appellants-Plaintiffs sought a temporary restraining order, preliminary injunction, declaratory judgment, and permanent injunction against the lease. Appellants-Plaintiffs appeal the trial court's grant of summary judgment to the Defendants, contending there are genuine issues of material fact regarding whether the lease violates Town zoning ordinances, whether purported amendments to the zoning ordinances were properly adopted, and whether the amendments constitute illegal spot zoning. The Scheduled Panel Members are: Judges Riley, Robb and Barnes. [Where: Hammond City Hall, City Council Chambers, 5925 Calumet Avenue, Hammond, Indiana]

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

Next Wednesday, March 11th:

1:30 PM - Wymberley Sanitary Works, Inc. v. Earl L. Batliner, et al - Appellant, Wymberley Sanitary Works, signed a contract to provide sewer service to two new residential subdivisions in Floyd County. It selected a route for its sewer lines that crossed four parcels of private property, and it sought to take easements by eminent domain when offers to purchase the easements failed. The trial court dismissed Wymberley's complaint. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Crone. [Where: Indiana Supreme Court Courtroom]

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

None currently scheduled
__________

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

Posted by Marcia Oddi on Monday, March 02, 2009
Posted to Upcoming Oral Arguments

Sunday, March 01, 2009

Ind. Law - More on: "New Albany will tighten adult-club regulations"

Updating this ILB entry from Dec. 19, 2008, Danial Suddeath reports in the New Albany News & Tribune:

The New Albany City Council will amend the adult cabaret ordinance that passed on first and second readings when it convenes Monday.

The new measure switches the closing time for live adult entertainment clubs from midnight to 3 a.m. and shifts the 6-foot no-touch rule to 5 feet.

Councilman Bob Caesar — who introduced the ordinance and headed a committee based on restricting adult clubs — said the amendments are to ensure the city is following legal precedent.

“We’re trying to cover all our bases, and we don’t want to be discriminatory,” he said.

The Indiana Seventh District Court of Appeals [ILB - sic] ruled a 5-foot no-touch rule was constitutional, Caesar said. As for the extension of hours, Caesar said legal counsel advised that state alcohol rules permit a club to stay open until 3 a.m.

Caesar said the committee did not meet with representatives from the Rustic Frog — a club located at 1720 Old River Road — because the measure isn’t just about one establishment.

“This is to protect the citizens from all businesses of this nature,” Caesar said. “This does not single out one business — this legally applies to all businesses.”

Posted by Marcia Oddi on Sunday, March 01, 2009
Posted to Indiana Law

Courts - More on: Carl Malamud fights to improve Pacer

Updating this ILB entry from Feb. 13th, this story Feb. 27th from Wired, by Ryan Singel, reports a step in tthe right direction. From the story, headed "Lieberman Asks, Why Are Court Docs Still Behind Paid Firewall?"

The head of a powerful Senate committee wants the federal courts to explain why its online database still charges 8 cents a page for court documents, and why many of those documents still contain Social Security numbers and other sensitive information.

Sen. Joe Lieberman (I-Connecticut), who helms the Senate's government affairs committee, is annoyed enough that he bypassed the administrators of the system and sent a letter Friday straight to the Judicial Conference of the United States.

He's asking Judge Lee H. Rosenthal to explain why in the age of Google the Public Access to Court Electronic Records, or PACER, system isn't free for citizens. He'd also like to know why federal courts still aren't blacking out sensitive information in court documents as required in the 2002 E-Government Act (a piece of legislation dear to Lieberman).

Here is a lnk to Senator Lieberman's letter.

Posted by Marcia Oddi on Sunday, March 01, 2009
Posted to Courts in general

Ind. Gov't. - "Township jobs: all in the family"

Updating this ILB entry from Feb. 24th, quoting from the Indianapolis Star investigative series on township government, today's story by Tim Evans, Mark Alesia, Heather Gillers and Mark Nichols is subheaded: "In 617 townships examined, 2 out of 3 trustees had a relative on the payroll." A quote from the lengthy story:

Urban or rural, large or small -- whether the job pays a pittance or a pretty penny -- nepotism is a tie that binds Indiana's disparate 1,008 townships.

A continuing examination of township government by The Indianapolis Star shows that, based on a sample of 617 townships, two-thirds of trustees had a relative on the payroll.

In addition, those relatives received more than $1.4 million in taxpayer money -- a conservative estimate of the overall picture that, like other aspects of township government, is nearly impossible to ascertain because of the autonomy of trustees, lax oversight and inconsistent record-keeping.

More than 300 townships didn't file the payroll disclosure form required by the state and used by The Star to help determine family relationships in township government.

Numerous other examples of nepotism go uncounted because only spouses and dependents are required to be reported on conflict of interest forms -- a process that excludes parents, siblings, grandchildren and other extended family members from the overall tally.

In many townships, often in rural areas, nepotism is taken for granted as innocuous and even essential to running a low-budget, hyper-local operation.

But no matter how quaint the operation, when the family business is local government, it raises ethical issues, real and perceived: Is the trustee or board lining the pockets of friends and family? Are there other deserving applicants being shut out of the process? Is your son-in-law really the most competent person for the job? And, if not, are you willing to fire the father of your grandchildren?

Peggy Kerns, director of the Center for Ethics in Government, said family hires sometimes can make sense, but added, "Generally, when public money is involved, there should be a lot of effort to make (hiring) an open process."

The issue is front and center in the legislature. Senate Bill 512, which originally called for the elimination of township government, was amended and now includes a provision that ends nepotism in township government.

"Anytime you use taxpayers' dollars you have to have standards for employees and contracts," said Sen. Connie Lawson, R-Danville, the bill's author.

"It's for the protection of taxpayers."

The current anti-nepotism language in SB 512 can be seen on pp. 19-20 of the bill as it passed the Senate.

Posted by Marcia Oddi on Sunday, March 01, 2009
Posted to Indiana Government