The Indiana Law Blog: April 2009 Archives

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Thursday, April 30, 2009

Ind. Decisions - Supreme Court decides two today re ex post facto challenges to the Indiana Sex Offender Registration Act

In Richard P. Wallace v. State of Indiana, an 18-page, 5-0 opinion, Justice Rucker writes:

The statutes collectively referred to as the Indiana Sex Offender Registration Act (“Act”) require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision. * * *

Having previously granted transfer we now reverse the judgment of the trial court on Wallace's ex post facto claim. In all other respects we summarily affirm the opinion of the Court of Appeals. * * *

[The opinion gives a thorough history of sex offender laws.]

Wallace contends that as applied to him the Act violates the ex post facto prohibitions of both the Indiana and federal Constitutions because he committed his crime, was sentenced, and served his sentence before any registration or notification was required. * * *

In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation. Thus, the non-punitive purpose of the Act, although of unquestioned importance, does not serve to render as non-punitive a statute that is so broad and sweeping. We conclude that the seventh Mendoza-Martinez factor favors treating the effects of the Act as punitive.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view - advancing a non-punitive interest – points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

In Todd Jensen v. State of Indiana, a 19-page, 3-2 opinion, Justice Rucker writes:

In an opinion handed down today we concluded the Indiana Sex Offender Registration Act ("Act"), as applied in that case, violated the prohibition against ex post facto laws contained in the Indiana Constitution. See Wallace v. State, No. 49S02-0803-CR-138, ___ N.E.2d___, (Ind. Apr. 30, 2009). As we explain below the Act does not violate the Indiana constitutional ban on ex post facto laws as applied here. * * *

But the effects of the Act apply to Jensen much differently than they applied to appellant Wallace. The "broad and sweeping" disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, "petition the court to consider whether the person should no longer be considered a sexually violent predator." Ind. Code § 35-38-1-7.5(g) (2006). We conclude therefore that the seventh Mendoza-Martinez factor favors treating the effects of the Act as non- punitive when applied to Jensen.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only three lean in favor of treating the effects of the Act as punitive when applied to Jensen. The remaining factors point in the other direction. Importantly, the last Mendoza-Martinez factor, which we afford "considerable weight in deciding whether the [Act is] punitive-in-fact," Wallace, ___ N.E.2d ___, slip op. at 17 (citation omitted), leans in favor of treating the Act as non-punitive when applied to Jensen. We conclude therefore that Jensen has not carried his burden of demonstrating that as applied to him the Act violates the Indiana constitutional prohibition against ex post facto laws. On this issue we affirm the trial court‘s ruling. We now address Jensen‘s remaining claims, which the Court of Appeals did not reach.

Jensen contends that "[r]equiring Mr. Jensen to register as a sex offender for life violates his right to life, liberty, and the pursuit of happiness under the State and Federal Constitutions." We make the following observations. First, although Jensen cites the Fourteenth Amendment to the United States Constitution and Article 1 section 1 of the Indiana Constitution he advances no argument concerning the Federal Constitution. This claim is thus waived. Second, Jensen devotes slightly more than one page to his Indiana constitutional claim. In doing so he cites to a single case * * * This claim is also waived. Trueblood v. State, 715 N.E.2d 1242, 1255 (Ind. 1999) (finding claim waived when defendant failed to cite authority or make cogent argument in its favor). * * *

We affirm the judgment of the trial court.

Shepard, C.J., concurs.
Sullivan, J., concurs in result with separate opinion.
Boehm, J., dissents with separate opinion in which Dickson, J., concurs.

[Justice Sullivan's concurring opinion begins] Jensen contends that he has been subjected to punishment on an ex post facto basis as a consequence of amendments to the Indiana Sex Offender Registration Act in 2006 that had the effect of converting his 10-year registration requirement into a lifetime registration requirement. I do not believe Jensen‘s claim that these 2006 amendments imposed additional punishment on him is ripe for adjudication. For this reason, I concur only in the result of the Court‘s opinion.

[Justice Boehm's dissent begins] I respectfully dissent. I agree with the implicit holding of the majority that this case is ripe for resolution. However, I believe the enhanced registration requirements enacted in 2006 constitute an additional punishment that violates the Ex Post Facto Clause as applied to Jensen, whose crimes were committed in 1998.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - Michigan High Court tackles juries' Googling

Doug Guthrie reports today in The Detroit News:

New rules to codify what seems like common sense: Barring jurors from making cell phone calls or Googling while deliberating cases. The rules under consideration by the Michigan Supreme Court also would prohibit them from taking computers or other communications devices to court -- and maybe even using them at home, should a judge see fit. * * *

"Historically, judges told jurors, don't read the paper and don't watch the news. Don't talk to anyone about this, not even your spouse. Well, this is just a modern extension of that," said Antrim County Prosecuting Attorney Charles Koop, past president of the state prosecutors association. "You would think that you could assume jurors know they shouldn't use the Internet to make comments or do independent research, but they say, 'You didn't say don't use my PDA.' It's a new technology and a new habit for people to find answers at their fingertips, and we have across the state found judges who are not willing to instruct jurors to stop Googling information."

Koop theorized, "What if you have a criminal sexual conduct charge against a guy and a juror calls up the State Police sex offenders list in the jury room on his iPhone? 'Hey, he's already on this list so he must be guilty.' That's a problem."

The ILB has had earlier related stories, such as this one from March 17th.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Courts in general

Ind. Courts - "State investigating Judge Spencer: Allegations stem from Ward murder trial"

From the Anderson Herald Bulletin, a story by Stephen Dick that begins:

Judge Fredrick Spencer of Madison Circuit Court is under investigation by the state Judicial Qualification Commission for alleged ethical violations.

Read the story here.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 8 today (and 18 NFP)

For publication opinions today (8):

In ACLS d/b/a Nations Transportation, and Mr. and Mrs. Bob Milutinovic v. George Bujaroski, a 5-page opinion, Judge Crone writes:

ACLS d/b/a Nations Transportation and Mr. and Mrs. Bob Milutinovic (collectively, “Nations”) appeal the determination of the Indiana Worker’s Compensation Board (“the Board”) that George Bujaroski was an employee of Nations and thus entitled to certain worker’s compensation benefits. We remand.

Nations raises three issues for our review, the dispositive issue being whether the full Board erred by purporting to affirm the decision of a single board member by a vote of less than the majority of the full Board. * * *

Therefore, pursuant to Indiana’s statutes and caselaw, it is clear that when the full Board accepted Nations’s application for review, the single Board member’s opinion was vacated. The full Board’s review was de novo. It was Bujaroski’s burden to prove to the full Board that he was entitled to compensation under the Worker’s Compensation Act. See Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008), trans. denied (2009). Bujaroski failed to carry this burden, as demonstrated by the full Board’s tie vote. Therefore, we remand to the Board for action pursuant to its options consistent with this opinion.

In Paoli Municipal Light Department, et al v. Orange County Rural Electric Membership Corp. , a 9-page opinion, Judge Riley writes:

The Town of Paoli constructed a recreational sports complex (Sports Complex) and sewage lift station entirely within REMC’s electric service territory. It has been providing electricity service to the sewage lift station for at least the last fourteen years. On November 5, 2007, REMC learned that the Town of Paoli was also constructing electric distribution facilities in REMC’s service area in order to furnish electricity service to the Sports Complex. * * *

Retail electric service is defined under the [Electricity Suppliers’ Service Area Assignments Act ] as “electric service furnished to a customer for ultimate consumption, but does not include wholesale electric service furnished by an electricity supplier to another electricity supplier for resale.” I.C. § 8-1-2.3-2(c).

Relying on the Act, the Town of Paoli now concedes that REMC has the sole and exclusive right to serve customers within its assigned service area. Nevertheless, the Town of Paoli argues that it has the right to serve the Sports Complex because it is owned by the Town and, by serving itself, it cannot be considered a customer. Maintaining that it cannot be its own customer, it necessarily follows that the electricity service the Town provides to the Sports Complex is not retail electric service as defined by the Act. Therefore, there is no violation of the Act and the Town of Paoli is free to cross the service territory boundary at will and with impunity. We find the Town’s argument to be without merit. * * *

Because the Town of Paoli did not petition the Indiana Utility Regulatory Commission to realign the utility service boundaries and allow the Town of Paoli to service its own Sports Complex pursuant to I.C. § 8-1-2.3-3, the Sports Complex is still properly located within REMC’s service territory. * * * As a result, REMC remains the exclusive supplier of electricity to the Sports Complex.

Additionally, the Town of Paoli asserts that because the Town has provided electricity for the past fourteen years to a now-defunct sewage lift station entirely located within REMC’s service area, REMC is time-barred from seeking relief. The Town of Paoli relies on Indiana Code section 8-1-2.3-4(b) which provides that an action to enjoin an electricity provider from rendering unlawful service must be brought within three years after the violation occurs. However, here, REMC does not bring an action to enjoin the Town of Paoli from rendering service to the sewage lift station; rather, it only wants to refrain the Town from extending electricity service to the Sports Complex. Therefore, we find that REMC’s action was brought in a timely manner.

Based on the foregoing, we hold that the trial court properly granted summary judgment to REMC and we remand to the trial court for determination of damages pursuant to I.C. § 8-1-2.3-4(b).

In Town of Munster Board of Zoning and Precision Homes, Inc. v. Dr. Paula Benchik Abrinko , a 9-page opinion, the issue is stated as "Whether the trial court erred in reversing the BZA’s grant of a developmental standards variance when the BZA found a practical difficulty pursuant to Indiana Code section 36-7-4-918.5." Judge Riley writes:

In sum, due to the very broad findings which solely focused on the size of the lot, the BZA’s basic findings come very close to being merely a general replication of the requirements of the ordinance at issue. See Network Towers, 770 N.E.2d at 845. We agree with the trial court that the quantum of legitimate evidence before the BZA was so proportionately meager that we cannot but conclude that the BZA’s finding does not rest on a rational basis.

CONCLUSION. Based on the foregoing, we hold that trial court properly reversed the BZA’s grant of a developmental standards variance because there was no rational basis for the BZA’s finding of practical difficulties. Affirmed.

TW General Contracting Services, Inc., Harland A. Wendorf, et al v. First Farmers Bank & Trust - Judge Crone concludes: "In sum, the Guarantors signed the Guaranties. The plain language of the Guaranties made the Guarantors responsible for unlimited, ongoing liabilities of TW. None of the Guarantors provided written revocation of their Guaranties. Therefore, when TW defaulted, the Guarantors should have expected that they would need to fulfill their promises under the Guaranties. Accordingly, summary judgment was properly granted to the Lender. "

In In the Matter of the Term. of Parent-Child Rel. of M.P., et al; L.P. v. IDCS, an 8-page opinion, Judge Barnes writes:

L.P. (“Mother”) appeals the termination of her parental rights to M.P. and A.S. We affirm.

Mother raises one issue, which we restate as whether the trial court impermissibly terminated her rights because she is mentally handicapped. * * *

Mother likens her situation to our State’s prohibition on the execution of mentally retarded criminal defendants. This association is misplaced and inapposite: our State’s criminal punishment of those with mental deficits has nothing to do with termination of parental rights. Indiana courts have repeatedly stated that termination proceedings are not designed to punish the parent, but rather to protect the best interests of the child. See A.J. v. Marion County Office of Family and Children, 881 N.E.2d 706, 717 (Ind. Ct. App. 2008), trans. denied.

Regardless of Mother’s mental deficits, she was unwilling to participate in the programs offered to her. She was also unwilling or unable to maintain suitable employment and housing, even with the help and resources of family members and programs. DCS met its burden under the termination statute.

Conclusion. There is clear and convincing evidence to support the trial court’s finding that the conditions resulting in the children’s removal from the home would not be remedied, that continuation of the parent-child relationship poses a threat to the well-being of the children, that there is an adequate plan for the care of the children, and that termination of Mother’s parental rights is in the children’s best interests. Mother’s mental deficits do not preclude this result. We affirm.

Isaiah Alvies v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to support Alvies’ convictions and that, but for one bad aggravator, the trial court properly sentenced Alvies. Because we can say with confidence that the trial court would have imposed the same sentence even if it had not considered the improper aggravator, we need not remand for re-sentencing. Finally, Alvies’ sentence is not otherwise inappropriate. Affirmed."

In Billy Atwood v. State of Indiana , a 14-page opinion, Judge Kirsch writes:

In McCullough v. State, 900 N.E.2d 745, 746 (Ind. 2009), our Supreme Court held that “in the exercise of the appellate authority to review and revise criminal sentences, a court may decrease or increase the sentence.” In that case, the State, on cross-appeal, had sought appellate review of McCullough's sentence arguing in favor of an increase in the sentence imposed. Our Supreme Court held that while appellate authority to review and revise criminal sentences did allow for an increase in a defendant's sentence, the State could not initiate review of the sentence on appeal or cross-appeal, but was restricted to making the argument in response to a request for sentence revision initiated by the defendant. 900 N.E.2d at 750.

Here, Atwood's appellant's brief was filed prior to our Supreme Court's February 10, 2009, decision in McCullough. However, Atwood did request sentence revision in his brief. The State responded, arguing that the sentence was unduly lenient, and cited our Supreme Court's opinion in McCullough. Atwood's reply brief, filed on March 18, 2009, was limited in its discussion to the State's cross-appeal argument about Atwood's belated notice of appeal. Accordingly, we turn now to the issue of whether the holding in McCullough can be applied to Atwood's appeal. * * *

Because Atwood's brief was filed before our Supreme Court decided McCullough and because we are unable to say with confidence that Atwood would have raised an issue regarding the appropriateness of his sentence had he known that he may face an increased sentence, we decline the State's invitation to revise the sentence upward. Affirmed.

In State of Indiana v. Jessi L. Campbell, a 9-page opinion, Judge Najam writes:

The State appeals the trial court's order granting the motion of Jessi L. Campbell to suppress evidence obtained when officers stopped her vehicle in order to investigate a report of conduct meeting the definition of criminal confinement. The State presents a single issue for review, namely, whether the trial court erred when it determined that the officers did not have reasonable suspicion to stop Campbell's vehicle.

In sum, the trial court erred when it found that the law enforcement officers did not have reasonable suspicion to initiate a stop. A witness told Deputy Marshall Clark that she had seen a husband drag his wife, named Jessi, into a white Tahoe. The witness also said that the couple lived in Peru and that they drove the Tahoe in that general direction. Officers from Cass County Sheriff's Department then intercepted the Tahoe on one of the routes from the tavern to Peru. The witness's accurate prediction of the Tahoe's likely location and direction of travel lent credibility to her information. Thus, we conclude that the officers had reasonable suspicion to stop Campbell's vehicle. As such, the trial court erred when it granted Campbell's motion to suppress evidence obtained as a result of the stop. Reversed and remanded.

NFP civil opinions today (5):

Auto Owners Ins., as Subrogee of Approval Auto Credit, Inc. v. Robert H. Drake, Jr. (NFP)

Michael Francis v. Lawrence T. Newman (NFP)

Susan Kerkhoff v. Jerry Kerkhoff (NFP)

The Term. of the Parent-Child Rel. of D.J.; and Melissa J. v. Indiana Dept. of Child Svcs., Hancock Co. (NFP)

The Term. of the Parent-Child Rel. of K.M., K.M.M., K.J.M., R.V.M., and R.E.M.; and M.K.B. v. Monroe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (13):

Derick Smith v. State of Indiana (NFP)

Diagentry L. Lewis v. State of Indiana (NFP)

Antonio Washington v. State of Indiana (NFP)

Herbert Johnson v. State of Indiana (NFP)

Lenn Ivy v. State of Indiana (NFP)

Vern Root v. State of Indiana (NFP)

W.L. II v. State of Indiana (NFP)

Robert L. Herrin, Sr. v. State of Indiana (NFP)

Jeffrey A. Rowe v. State of Indiana (NFP)

Jerry Allen Davis v. State of Indiana (NFP)

Bobby D. Plummer v. State of Indiana (NFP)

William Walton v. State of Indiana (NFP)

Jeffery Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - General Assembly adjourns without budget; special session looms; what passed

A number of reports today on the failure of the General Assembly to pass a budget before midnight last night:

Eric Brader of the Evansville C&P - "Statehouse gets special session: Education cuts send talks into overtime"

Leslie Stedman Weidenbener of the LCJ - "Special session looms over budget impasse: School funding splits parties"

Niki Kelly of the Fort Wayne JG - "Split vote kills hope for budget: Special session required after rejection by House"

Eric Bradner also has a story on what passed and what failed. Puppy mills finally passed, with language that limits local units of government, after the end of this year, from enacting measures stricter than the new statute. See also this brief story in the South Bend Tribune on puppy mills. That paper also reports that the "bill that opponents said would limit women's access to abortions in Indiana has died Wednesday after the General Assembly adjourned without reaching a compromise on the contentious legislation.."

[More] See also this AP story on what passed and what fails.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Indiana Government

Environment - "EPA seizes Crestwood Illinois files: Raid comes after tainted-well report"

All in all, this is a pretty amazing set of stories.

On April 19th the Chicago Tribune published a story by its enviromental reporter, Michael Hawthorne, headlined "Poison in the well: Crestwood officials cut corners and supplied residents with tainted water for 2 decades." The long story began:

Like every town across the nation, south suburban Crestwood tucks a notice into utility bills each summer reassuring residents their drinking water is safe. Village leaders also trumpet the claim in their monthly newsletter, while boasting they offer the cheapest water rates in Cook County.

But those pronouncements hide a troubling reality: For more than two decades, the 11,000 or so residents in this working-class community unknowingly drank tap water contaminated with toxic chemicals linked to cancer and other health problems, a Tribune investigation found.

As village officials were building a national reputation for pinching pennies, and sending out fliers proclaiming Crestwood water was "Good to taste but not to waste!," state and village records obtained by the newspaper show they secretly were drawing water from a contaminated well, apparently to save money.

Officials kept using the well even though state environmental officials told them at least 22 years ago that dangerous chemicals related to a dry-cleaning solvent had oozed into the water, records show.

The village avoided scrutiny by telling state regulators in 1986 that they would get all of their tap water from Lake Michigan, and would use the well only in an emergency. But records show Crestwood kept drawing well water on a routine basis—relying on it for up to 20 percent of the village's water supply some months.

The well wasn't shut off for good until December 2007, after the Illinois Environmental Protection Agency tested the water for the first time in more than 20 years. The agency found not only that the well was still contaminated but that Crestwood had been piping the water, untreated, to residents.

Since then, the EPA has cited Crestwood twice for violating environmental laws, yet has failed to notify people who drank the well water for years. The agency continues to investigate, and Illinois Atty. Gen. Lisa Madigan's office also is looking into the matter.

Nearly two weeks, and a number of stories later, Hawthorne and Carmen Greco Jr. have this story today in the Tribune. Some quotes:

Federal agents raided government offices in south suburban Crestwood on Wednesday, less than two weeks after a Tribune investigation revealed the village had secretly pumped drinking water from a polluted well for more than two decades.

Acting on a search warrant obtained by U.S. Atty. Patrick Fitzgerald's office, investigators from the U.S. Environmental Protection Agency spent most of the day collecting records from Crestwood Village Hall, the public works department and the Police Department. They carted away several boxes of documents and took computers for further review.

The involvement of federal prosecutors signals a significant turn in the case. Most violations of environmental laws are handled in civil court, and criminal pollution investigations typically are directed at corporations and individuals, not municipalities.

Agents on the scene in Crestwood wouldn't say much, nor would Fitzgerald's office. But the raid closely followed the Tribune's April 19 report that village residents for years drank water contaminated with chemicals linked to cancer, liver damage and other ailments.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Environment

Law - "Recession hits top law firms' profits: Many Chicago practices have cut staff and even the top firms are seeing their revenues fall or flat line"

That is the headline to this long story today in the Chicago Tribune, reported by Ameet Sachdev. It begins:

Partners at Chicago law firms may look back longingly at 2008.

American Lawyer magazine on Wednesday released its annual ranking of the nation's 100 highest-grossing law firms, which offers a picture of the financial health of the legal industry.

Amid weak results across the country last year, Chicago firms scored some bragging rights against their New York rivals. But business at the start of 2009 was so dismal that law firm managers and industry consultants have put last year's results in the rear-view mirror. In the first quarter, big firms made unprecedented cuts that put thousands of attorneys and staff on the street.

"The big story is what are this year's numbers going to look like," said Kay Hoppe, a Chicago-based legal consultant. "This is the first year in my memory that almost every law firm would take last year's numbers." * * *

The downturn is a new experience for many lawyers at the top 100 firms. Since the early 1990s, they have grown used to steady increases in revenue and profits. The increases accelerated between 2003 and 2007, fueled by surging demand for lucrative work in the corporate and finance sectors and annual rate hikes.

But the bursting of the housing bubble and the ensuing credit crunch have brought an abrupt end to the golden age for corporate lawyers. American Lawyer reported that profits per partner at the top 100 fell by 4.3 percent, to an average of $1.26 million, and revenue per lawyer dropped 1.2 percent, to $818,000. The magazine said it was the first time since 1991 that both average profits per partner and revenue per lawyer dipped among the top 100 firms.

And, although this story reports:

Amid the grim results, there were bright spots at some Chicago-based firms. Baker & McKenzie's revenue per lawyer grew 10 percent, to $605,000, and Jenner & Block's increased 6.7 percent, to $795,000.

another story today in the Tribune reports:

Baker & McKenzie laid off 38 attorneys and 86 paralegals and staff employees in North America on Tuesday, as the financial crisis continues to take its toll on corporate law firms.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to General Law Related

Ind. Decisions - Still more on: Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1

The April 17th Indiana Supreme Court decision in the case of In Re: T.S.; Indiana Dept. of Child Services, LaPorte County v. LaPorte County CASA, et al, (ILB entry here, follow-up here), is the subject of a lengthy story today by Tim Evans of the Indianapolis Star. Here are some quotes:

The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations.

It is an important decision, legal experts and child welfare advocates agree, because a law that went into effect Jan. 1 seemed poised to discourage such rulings.

The new law, which was included in a property tax measure, shifts the cost of providing care for children in DCS custody from the counties to the state.

But there's a catch: If a local judge disagrees with the DCS recommendation, the county must pick up the tab unless the judge can prove the agency's recommendation is unreasonable or contrary to the welfare and best interests of the child. The fear among some is that the requirement would pressure judges to go along with DCS to avoid costing the county money.

A LaPorte County judge's decision to overrule DCS was the first case challenged since the law went into effect.

An appellate court agreed in March with the judge's recommendation, and now so has the Indiana Supreme Court.

But perhaps more importantly, the court said in its April 17 decision that the proper test for the appellate court in such disputes is that it must find the judge's decision was "clearly erroneous" and not merely assume a DCS recommendation is correct.

"To say this decision was eagerly awaited would be an understatement," said Marion County juvenile court Judge Marilyn Moores. * * *

LaPorte Circuit Judge Thomas Alevizos, whose court issued the ruling that conflicted with the DCS recommendation, said he was pleased.

"I thought the process worked well," he said, "and I'm happy with the legal decision."

What also appeared to work was the expedited "rocket docket" appeals process that was put in place to handle such cases.

Alevizos said it took a little more than a month for the appeals court to issue a ruling -- much faster than usual. The Supreme Court handed down its decision in about the same amount of time. * * *

Alevizos also said "the courts interpreted the law the only way it could have been interpreted, in my opinion.

"To interpret it any other way," he said, "would violate any semblance of separation of powers. If the courts had ruled the way DCS wanted, it would have been unconstitutional, in my opinion -- basically, it would put them on the judge's bench."

That was a concern some critics had when the change was being deliberated last year in the legislature. Many judges were initially upset by the change because the legislation looks like it "assumed we are the problem," Alevizos said.

St. Joseph County Probate Judge Peter Nemeth is among those who don't like the practice that requires judges to defend their decisions if DCS disagrees. He calls it "fiscal intimidation."

Nemeth said the approach puts at least some degree of pressure on judges to follow DCS recommendations. Nemeth said he fears some judges may be reluctant to go ahead with alternative plans because they know that if they lose, they must go to their counties -- which no longer budget for child services -- for funding.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: "Appeals court calls non-violent protective orders defective"

Updating this ILB entry from yesterday on the COA's decision April 16th in the case of Moore v. Moore, Heather Gillers of the Indianapolis Star writes today:

For years, advocates concerned with domestic violence have argued that court-issued "nonviolent contact orders" provide no meaningful protection to victims.

And now the courts also have taken a step in that direction.

A state appeals court has deemed one such order "defective," an opinion advocates hope will encourage judges to take stronger measures to protect potential victims of domestic abuse.

"It's obviously a yellow flag," said Marion Circuit Judge Louis Rosenberg. "We will all read it, and we will follow it."

When abuse victims or those who fear for their safety seek protection from a known person, judges typically have issued a common protective order that bars any contact. But sometimes they issue nonviolent orders that allow abusers to see their victims -- as long as they don't hurt them.

The practice made news last summer when an Indianapolis man under such an order shot and killed his ex-wife, April Wills, in front of her 13-year-old daughter.

The appellate opinion this month does not stop judges from allowing contact between victim and abuser, said Seth Lahn, who directs the Protective Order Project at Indiana University's Maurer School of Law. But it discourages that practice in cases where there is past abuse. * * *

Judges use nonviolent contact orders primarily in cases where some contact is deemed necessary for reasons such as counseling or parenting arrangements.

But domestic violence advocates say the orders provide an easy way out for judges who basically allow any contact as long as it's not violent when they should make the effort to set strict rules for such contact.

"The judge has to say, 'I'm granting a protective order. That means no showing up on her doorstep, no phone calls, no texts, no nothing. So while we're here and while we're in court, let's talk about parenting,' " said Kerry Hyatt Blomquist, legal director for the Indiana Coalition Against Domestic Violence. "That takes time."

Lahn said the ruling means "the court should lean on the other side and say, 'We're going to prohibit all contact except for what is necessary to exchange the child for visitation.' "

Blomquist's group, which filed a friend of the court brief in the case, argues that the orders often are misunderstood and give victims a false sense of security.

"If the parties could have nonviolent contact," Blomquist said, "she wouldn't be asking the court for protection."

Blomquist said DeVone Moore, the Marion County woman whose nonviolent contact order the appeals court deemed defective, believed the measure barred visits from her husband, who had abused her.

Still, the Marion Superior Court judge who gave April Wills a nonviolent protective order against her ex-husband does not believe any kind of order would have kept her alive. He said he was in the process of making permanent an emergency protective order prohibiting contact when Wills interrupted him, saying she needed to see her ex-husband for parenting reasons.

"I get angry when people suggest that it was a defective order that led to (Wills' death)," said Marion Superior Court Judge David Certo. "He's a murderer."

In the two years before Certo handed down the nonviolent protective order in the fall of 2007, Carl Wills had slashed Wills' tire, kicked in her door and punched her in the face. She never pressed charges. On July 22, 2008, Carl Wills killed Wills' boyfriend, John L. Cunningham III, then dragged Wills and her 13-year-old daughter into his car. Minutes later, he killed April as the girl watched. As police approached, Carl Wills fatally shot himself.

Certo, who also handed down the nonviolent contact order in the Moore case, said he issues 30 to 50 protective orders per day and two or three nonviolent contact orders a month. He said he appreciates the appeals court's guidance but will continue to evaluate each case individually and hand down nonviolent contact orders when he thinks they're appropriate.

The ILB hopes to obtain copies of the briefs in this case. Here is a link to the ILB summary of the opinion, which links to the ruling.

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge Hamilton sails through 2nd hearing"

So reports Maureen Groppe / Gannett News Service today in the Indianapolis Star. Some quotes:

WASHINGTON -- Despite Republicans' insistence that they needed more time to question Hoosier Judge David Hamilton, the GOP showed little interest in him Wednesday during the second confirmation hearing held for his nomination to the 7th Circuit Court of Appeals.

Oklahoma Sen. Tom Coburn, the only Republican who attended the hearing, asked two mild questions before praising Hamilton's uncle, former Indiana Rep. Lee Hamilton, as one of his heroes.
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The Senate Judiciary Committee held the second hearing after Republicans boycotted an April 1 hearing, complaining that it was held too quickly to give them a chance to review Hamilton's record.

Committee Chairman Pat Leahy, D-Vt., who also did not attend the second hearing, said in a statement that he agreed to hold it because of requests made by Sen. Jon Kyl, R-Ariz., and Sen. Arlen Specter of Pennsylvania.

"I hope that Republican members will reciprocate by not further delaying this nomination," Leahy said.

Specter, who had been the top Republican on the panel, announced Tuesday that he's becoming a Democrat. He did not attend the hearing in either capacity. Kyl also did not attend. * * *

Coburn asked Hamilton about his view of using international law as guidance and about a comment he had made about judges writing the footnotes to the Constitution. Hamilton said he was making the point that judges are not trying to do something new, but are applying old principles and constitutional provisions to new situations.

Coburn thanked Hamilton, adding: "I would say that Lee Hamilton is one of my heroes. I have great admiration and respect for him."

The Seventh Circuit Court of Appeals is the last stop before the Supreme Court for cases from Indiana, Illinois and Wisconsin.

An interesting earlier ILB entry is this one from March 22, 2009, which includes a link to the questionnaire Judge Hamilton filled out for the Judiciary Committee. The ILB entry remarks on the answer on p. 55, at the end of question 10, where Hamilton writes: "Judge Zore has retired, and his current address is unknown."

Posted by Marcia Oddi on Thursday, April 30, 2009
Posted to Indiana Courts

Wednesday, April 29, 2009

Ind. Courts - More on: Conferees agreed to version of St. Joe judges selection bill [Updated]

Updating this entry from last evening, the Senate has now adopted the Conference Committee Report on HB 1491. Here is the CCR. Here is the rollcall showing the votes of the individual senators. The vote was 32 yeas, 18 nays.

What remains? The House must adopt it before midnight tonight, then it will be sent to the Governor.

[Updated at 6:13 PM] The House has now adopted the CCR. The vote was 68 yeas, 22 nays, 3 excused, and 7 "not voting." (I don't recall that this option was permitted years back.) Here is the rollcall showing the votes of the individual representatives.

It is now up to Governor Daniels.

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Indiana Courts

Ind. Decisions - "Appeals court calls non-violent protective orders defective"

The Court of Appeals decision April 16th in the case of Moore v. Moore (see ILB summary here) is the subject of a story on WTHR 13 Eyewitness News:

The Indiana Court of Appeals has found that "non-violent protective orders" don't do enough to stop violence. The court called the orders "defective."

The Indiana Coalition Against Domestic Violence (ICADV) pursued an appeal of the use of "non-violent protective orders." The group says it was concerned that the remedy was a protective order without "teeth" and did not fulfill the statutory mandate for the Court to take action necessary to prevent further violence.

The Indiana Court of Appeals agreed. In the case summary, the Appeals Court said non-violent protective orders were defective.

The appeal also addressed an issue of gun ownership in regard to a protective order. According to an attorney on the case, the decision states that prohibiting "firearms is not a discretionary action on the part of the trial court judge." If the parties concerned are "intimate partners" as defined by federal law, and a hearing is held, the Brady prohibitions that limit the purchase and ownership of firearms must be ordered if the protective order is granted.

The law regarding protection orders is the Indiana Civil Protection Order Act (ICPOA), IC 34-26-5.

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Ind. App.Ct. Decisions

Environment - More on: Track swine flu via google maps [Updated]

Updating this ILB entry from April 28th, here is an article on the Pittsburgh researchers behind the online tracking map.

Here is IC 16-41-9, Indiana's law on Communicable Disease: Imposition of Restrictions on Individuals With Certain Communicable or Dangerous Communicable Diseases. This chapter covers isolation, quarantine, immunization programs, exclusion from school of infected students, etc.

Additional chapters of IC 19-41, Public Health Measures for the Prevention and Control of Disease, cover other aspects of communicable disease.

ICLEF has just sent out a note re a CLE seminar on May 5th: "Putting The Law In Public Health: The 10 Essential Public Health Services." Note that:

Reduced tuitions for this program have been made possible by funding received through the Indiana State Department of Health from the Department of Health & Human Services and the Centers for Disease Control & Prevention

Tuition for the 3-hour program for ISBA members is $35.00.

[Updated] For the Google map techies, check here for more maps and information.

{Updated Again] Check here for "How to Track Swine Flu Online."

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Tru Cal, Inc. v. Conrad Kacsik Instrument Systems, a 13-page opinion, Judge Friedlander writes:

Tru-Cal, Inc. (Tru-Cal) appeals from the trial court’s grant of summary judgment in favor of Conrad Kacsik Instrument Systems, Inc. (CKI) on all of Tru-Cal’s claims asserted in its complaint against CKI. On appeal, Tru-Cal presents the following restated issues for review: 1. Does the integration clause in the settlement agreement between Tru-Cal and CKI act to bar Tru-Cal from seeking rescission based upon fraudulent inducement? 2. Did the trial court err in granting summary judgment on Tru-Cal’s Indiana Crime Victims Relief Act claim? * * *

This is the type of case described in Prall and Circle Ctr. Dev. Co. where a party can overcome the effect of an integration clause and bring a fraud in the inducement claim to rescind the contract. Questions of fact remain regarding, among other things, whether Tru-Cal reasonably relied upon the alleged false representations made by CKI in the Ohio litigation. The trial court erred in granting summary judgment on this basis.

The parties briefly address an additional issue with respect to Tru-Cal’s Indiana Crime Victims Relief Act (the Act) claim. CKI argued to the trial court that the criminal acts alleged by Tru-Cal (conversion, forgery, deception, identity deception, and criminal mischief) all occurred in Ohio, not Indiana, and, therefore, Tru-Cal failed to state a claim under the Act. * * *

It is sufficient for our purposes at this stage of the proceedings to conclude that there exists a question of fact as to whether the conduct and/or the result of any of the alleged offenses occurred in Indiana. * * * CKI is not entitled to summary judgment with respect to Tru-Cal’s Indiana Crime Victims Relief Act claim on this alternative ground argued by CKI.

Judgment reversed and remanded.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Brady Frost v. State of Indiana (NFP)

David Rutherford v. State of Indiana (NFP)

Sylvester Buckingham v. State of Indiana (NFP)

Desmond Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Terre Haute Lawyer Arrested for Drunk Driving Again"

Updating this ILB entry from March 4, the most recent in a list of several entries, the Supreme Court has issued this order dated April 27, titled "Order Revoking Probation and Imposing Suspension."

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two Indiana rulings today from 7th Circuit

In Rick Madden v. Royles Royce Corp. (SD Ind., Judge McKinney), a 6-page opinion, Judge Posner writes:

The Uniformed Services Em- ployment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq., forbids discrimination in employment on the basis of military service. The plaintiff is a member of the U.S. Air Force Reserve (oddly, the record does not indicate the precise nature of his work for the Air Force, but it seems to involve the refueling of aircraft). He was hired by Rolls Royce, which though it is a famously English company has American facilities, for a temporary position as a “process engineer,” who designates the steps to be followed in a manufacturing process. Robin Savin, who hired and supervised the plaintiff, was a graduate of Purdue’s engineering program and was suitably impressed when the plaintiff told him that he had a degree in aeronautical engineering from Purdue. But the plaintiff made many mistakes in his new job—which is not surprising, because he was not a grad- uate of Purdue; he had flunked out. At the end of the 90- day period for which he had been hired, Savin (who did not know about the resumé fraud), because there was not enough work for all the process engineers, decided to terminate the plaintiff rather than giving him a permanent position or terminating another temp, who had done a better job than the plaintiff. But according to the plaintiff, Savin, when he told the plaintiff the bad news, did not complain about the plaintiff’s performance but instead said that since the plaintiff was about to be called for a stint of active duty with the Air Force, he should be the process engineer to be terminated.
Later the plaintiff applied for an engineering job with the codefendant, DS&S (Data Systems and Solutions), a supplier to (and now owned by) Rolls Royce. He was turned down and again says that the hiring officer referred (albeit obliquely) to his military obligations as a factor in turning him down. But before he would have been hired for the permanent job that he was seeking, there would have been a check of his credentials and work record, and not only his resumé fraud but also his poor work for Savin (the first probably, the second cer- tainly) would have come to light and doomed his chances for being hired, regardless of his military obligations. Although Savin had hired him without a careful check of his credentials, it was for a temporary job for a fellow alumnus (he thought) of Purdue. In fact, the hiring officer for DS&S did try to verify the plaintiff’s references and was unable to do so, which may well have been the real reason he didn’t offer the plaintiff a job.
The district judge granted summary judgment for the defendants with respect to both the refusal to give the plaintiff a permanent job and the later refusal of DS&S to hire him. * * *
[T]he first refusal to hire was based on his incompetent performance, discovered before the refusal, and the defendant in the second episode would have discovered the disqualifying facts about the plaintiff (certainly his poor work record and probably his resumé fraud as well) before hiring him, so the discriminatory motive could have had no consequence. In the McKennon case the discriminatory motive did have a consequence—it resulted in the plaintiff’s discharge sooner than would otherwise have happened.
There are other issues, but none that requires discussion. AFFIRMED.

In Westfield Insurance v. Sheehan Construction (SD Ind., Judge Young), a 7-page opinion, Chief Judge Easterbrook writes:

Sheehan Construction Co. was the general contractor for the Crystal Lake residential subdivision in Indianapolis. A few years after moving in, the owners began to notice moisture in places that should have been dry. An investigation traced the problem to defective work by one of Sheehan’s subcontractors. Litigation in state court ended with a settlement of about $2.8 million. Sheehan wants its insurer, Westfield Insurance Co., to indemnify that expense. (The settlement assigned to the homeowners Sheehan’s rights in the policy, but for simplicity we refer to Sheehan.) Westfield declined and filed this declaratory-judgment action. Indiana supplies the rules of decision. * * *
Sheehan scarcely tries to argue that the policy’s actual language covers the loss that the homeowners incurred. Nor does Sheehan deny that several Indiana decisions, addressing functionally identical situations, have held that the insurer need not indemnify a general contractor. * * * Sheehan contends that these opinions are “outdated” (as if judicial decisions came stamped with expiration dates!) because of the 1986 change to the trade association’s form policy. How a change in 1986 can supersede judicial decisions rendered in 1997 and 2004 is anyone’s guess. * * *
The parties’ other arguments do not require discussion. We cannot refrain from remarking, however, that Sheehan’s insistence that it is entitled to punitive damages because Westfield’s denial of coverage was “in bad faith” is the sort of argument that calls into question the bona fides of all other contentions. How can an insurer exhibit “bad faith” by taking a position that not only follows the policy’s language but also is endorsed by a district judge? We can imagine a procedural form of bad faith—refusal to take any stance on the policy’s coverage while leaving the insured to fend for itself in the underlying litigation—but Westfield addressed Sheehan’s claim with dispatch and filed a prompt declaratory-judgment suit to have the dispute resolved. Sheehan’s insistence, even after losing on the merits in the district court, that the insurer acted “in bad faith” implies that its strategy has been to strong-arm a settle- ment by in terrorem claims, rather than to vindicate its legal entitlements. Lawyers should think carefully about the message that their contentions convey to the court, as well as the effect they may have on the other litigants. AFFIRMED

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "East Chicago on a roll in battle for casino funds"

The Court of Appeals decisions yesterday in the case of Foundations of East Chicago v. City of East Chicago and State of Indiana (see ILB summary here) is the subject of a story today in the NWI Times by Bill Dolan. Some quotes:

EAST CHICAGO | Mayor George Pabey's lucky streak continued Tuesday's with another court judgment that could allow him to rack in tens of millions of dollars in new casino revenues for the city.

The Indiana Court of Appeals announced Tuesday it has upheld a 2007 state law giving the mayor and the East Chicago City Council permission to gain control of an additional 2 percent of Ameristar Casino and Hotel's adjusted gross receipts.

It came as a blow to The Foundations of East Chicago, an agency created under former Mayor Robert Pastrick, that had been receiving the 2 percent in casino revenues and distributing it to charities, churches, private schools and other public agencies until the money became tied up in litigation two years ago.

Carmen Fernandez, the city's corporate counsel, welcomed the ruling, saying Tuesday, "We have shovel-ready projects waiting for that money."

Foundations' attorney, Peter J. Rusthoven, said his client will appeal to the Indiana Supreme Court.

This comes one week after city officials welcomed an Indiana Supreme Court ruling giving them hope they can win -- through a parallel lawsuit -- additional millions of dollars previously channeled to Second Century, a politically connected East Chicago development firm also favored by Pastrick's administration. * * *

Pastrick brokered deals with Foundations and Second Century in 1994 that had subsidies flowing freely to the entities. Then Pastrick's 2003 re-election was overturned by the Indiana Supreme Court, and Pabey won office the following year in a special election.

Pabey successfully lobbied passage of a new law giving his administration the ability to rewrite the casino deals and cut the Foundations and Second Century out of future casino funds.

Foundations sued to have that law declared unconstitutional. Appeals court judges decided in a 2-1 ruling that East Chicago always had the authority to reshuffle the casino deals.

The Indiana Attorney General yesterday issued a press release (not yet available online, the AG press page seems to be running several days behind) that reads in part:

The Indiana Court of Appeals has ruled in the State of Indiana’s favor, finding that the new administration in the City of East Chicago had the legal right to break development contracts with two nonprofits that received casino money. * * *

Tuesday, the Court of Appeals ruled in a case brought by Foundations of East Chicago Inc., an entity created by the merger of East Chicago Community Development Foundation Inc. and Twin City Education Foundation Inc. Under a 1995 agreement with Pastrick’s administration, the two foundations each were to receive 1 percent in revenue flowing from the casino in East Chicago to use for economic-development purposes. That deal and one involving a for-profit entity, East Chicago Second Century Inc., have been the subjects of investigation and scrutiny for several years.

In January 2005, the newly-elected administration of Mayor George Pabey came into office and sought by ordinance to cancel the prior Pastrick-era contracts with the foundations. The Indiana General Assembly in 2007 passed a state law to give the city legal authority to break the local development agreements so the city could decide for itself how to use the revenue.

In the litigation that ensued, the foundations tried to block the city from canceling the agreements, contending the state law was unconstitutional. A lower court sided with the city, but the foundations appealed. The Office of the Indiana Attorney General defended the statute and argued that the new administration had the right to cancel prior deals.

Tuesday, the Indiana Court of Appeals affirmed the lower court. The majority opinion written by Chief Judge John Baker noted that the city had the right to change the recipient. Enforcing the old agreements would have been a “patent violation of public policy,” he wrote.

“To enforce this policy would be akin to permitting a corrupt public official to enter into an agreement that would bind his or her constituents in perpetuity; it would also bind a community to its current needs, notwithstanding the fact that it might need a park today and a hospital five years from now. To enforce such a policy would be profoundly unwise,” Judge Baker wrote in the 10-page decision.

This comes on the heels of the April 13 decision by the Indiana Supreme Court that reversed a lower court and reinstated the attorney general’s lawsuit against East Chicago Second Century Inc. That for-profit company received $16 million in revenue from the East Chicago casino over 10 years in a deal brokered by Pastrick. The attorney general’s lawsuit now will be heard in Marion County.

“These two recent appellate court rulings have validated the efforts of our office to demand accountability and openness in the use of gaming revenue to support economic development,” Attorney General Greg Zoeller said. “Moreover, we believe that former Mayor Pastrick’s upcoming racketeering trial will shed light on the abuses of the public trust that existed in East Chicago for far too long.”

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Ind. App.Ct. Decisions

Courts - Where does new Democrat Spector stand on Dawn Johnsen and David Hamilton's nominations?

From a story today by David Ingram in Legal Times:

Sen. Arlen Specter's switch to the Democratic Party brings his new colleagues a little closer to controlling 60 seats in the Senate, but it's not clear that the switch will have much of an effect on the fate of nominees for the federal bench and the Justice Department. * * *

Specter provided a fresh example of that independence Tuesday, saying for the first time that he is "opposed" to the nomination of Dawn Johnsen to be assistant attorney general in charge of the Office of Legal Counsel. Her confirmation is a priority for the Democratic Party's base, in part because the office has been at the center of the battle over interrogation policies. Specter did not elaborate on his reasons for opposing her or make clear whether he would vote for cloture. (Only one Republican, Sen. Richard Lugar of Indiana, has said he will support Johnsen. Johnsen is a law professor at Indiana University at Bloomington.) * * *

Asked whether he would change his approach to potential judges in particular, Specter said he would not. "I am willing to listen to any judicial nominee," Specter said. He then alluded to the Republicans' boycott of the April 1 confirmation hearing for David Hamilton, nominated for the 7th U.S. Circuit Court of Appeals, and he said his only concern had been inadequate time to prepare for the hearing. "I will counsel the chairman to have adequate time to prepare," he said.

[More] Maureen Groppe of the Gannett News Service has a story this morning that begins: "Allies of Indiana University law professor Dawn Johnsen are trying to counter Republican opposition to her nomination to a top position in the Justice Department."

Sylvia Smith, Washington editor for the Fort Wayne Journal Gazette, has a story headed: "Lugar to support IU law professor's nomination: First in GOP to back Obama's pick to head internal law office."

Posted by Marcia Oddi on Wednesday, April 29, 2009
Posted to Courts in general

Tuesday, April 28, 2009

Ind. Courts - Conferees agreed to version of St. Joe judges selection bill [Updated]

So reports Ed Ronco for South Bend's WSBT. Here is the story (BTW - no CCR is available yet online, as of this writing):

Representatives of the Indiana House and Senate have agreed on a measure to move St. Joseph County Superior Court judges to nonpartisan elections.

The four legislators — a Republican and Democrat from both the House and Senate — signed off on House Bill 1491 on Tuesday, state Rep. Craig Fry said.

The nonpartisan elections called for in the measure would replace merit selection, the current system for selecting Superior Court judges under which a committee in the county submits finalists for the bench to Gov. Mitch Daniels, who makes the final decision.

Supporters of the bill said elections are necessary to hold judges accountable to the public. Critics said the bill would expose jurists to undue political influence and pressure.

The bill also puts fundraising limitations on Superior Court judges and expands the state’s appellate court.

The conference committee members were Fry, D-Mishawaka; state Rep. Jackie Walorski, R-Jimtown; state Sen. Ed Charbonneau, R-Valparaiso; and state Sen. Jim Arnold, D-LaPorte.

Fry was the bill’s original author.

Procedurally, the conference committee’s report still must be approved by both the full Senate and House, but Fry said he didn’t anticipate any problems in the process.

Jane Jankowski, press secretary to Daniels, said the governor has yet to review the measure and she couldn’t comment on whether he’ll sign it.

[Updated at 7:41 PM] The CCR has now been posted. The language of the CCR would still establish a 6th COA panel, but would delay its operation until July 1, 2011 (rather than Jan. 1, 2011). That would mean no major additional funding would be required in the upcoming biennial budget.

Here are a number of earlier ILB entries on the St. Joseph County judges selection issue.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues two today

In Dreaded, Inc. v. St. Paul Guardian Ins. Co., a 5-0, 9-page opinion, Justice Dickson writes:

Facing an environmental damage claim, the appellant, Dreaded, Inc., waited over three years to notify its insurer, the defendants-appellees (collectively referred to as "St. Paul"), and now seeks reimbursement for defense costs and expenses incurred during the pre-notice period. We affirm the trial court's grant of St. Paul's motion for summary judgment and hold that, as to claims seeking recoupment of an insured's pre-notice defense costs predicated on an alleged breach of an insurer's duty to defend, the insurer's duty to defend did not arise and prejudice is an irrelevant consideration. * * *

Dreaded's complete failure to comply with the notice requirement is undisputed. For more than three years, Dreaded was aware of IDEM's environmental claim against it and failed to inform St. Paul. Yet Dreaded now asserts that St. Paul breached its policy obligation to defend Dreaded during the time St. Paul knew nothing about the claim. Under the facts of this case, prejudice is irrelevant. The issue is simply whether the insured had any duty to defend at all. St. Paul's duty to defend did not arise until Dreaded complied with the policy's notice requirement. St. Paul is entitled to summary judgment as a matter of law.

Dreaded does not prevail in any of its appellate claims. St. Paul was under no duty to defend the IDEM claim in the absence of any knowledge of the claim, and St Paul did not need to present any separate proof of prejudice to justify its failure to defend during the pre-notice period. We affirm the trial court’s grant of summary judgment in favor of St. Paul.

In Lake County Trust Company v. Advisory Plan Commission of Lake County, a 5-0, 8-page opinion, Justice Dickson writes:

This appeal challenges the trial court's use of sanctions in the course of its enforcement of a mediated settlement in a dispute arising from the denial of an application for subdivision plat approval. We hold that government entities are subject to sanctions under the Indiana Alternative Dispute Resolution Rules, but that in this case the Advisory Plan Commission did not act in bad faith for failing to approve the mediation agreement because it remained subject to the Advisory Plan Commission's final approval at a public meeting. * * *

Until now, this Court has not had occasion to review the proposition espoused in Carter that a trial court may not impose A.D.R. Rule sanctions against a governmental entity. In con- trast to the punitive damage rationale employed in Carter, we find that the sanctions authorized by the A.D.R. Rules are more analogous to the exercise of inherent judicial authority than to the imposition of punitive damage awards in civil law suits. Like other parties to litigation who may be involved in a mediation proceeding, governmental entities are equally obligated to comply with the applicable rules and thus should be equally subject to the sanctions authorized to en- courage compliance. We therefore disapprove of the portion of Carter that expresses a contrary view, and we now hold that governmental entities are not immune from the power of courts to impose sanctions under the A.D.R. Rules, particularly Rules 2.7(E)(3) and 2.10. * * *

We conclude that this statutory scheme operates to preclude the delegation of plan commission authority for final approval of subdivision plats, but instead requires final approval by a majority of the commission members at meetings subject to the Open Door Law. Because the settlement agreement resulting from the mediation was thus not final until its approval by a majority of the Plan Commission at a public meeting, the Commis- sion's failure to promptly approve the subdivision did not constitute bad faith conduct warranting sanctions.

While we generally favor the amicable settlement of disputes and encourage the use of mediation to facilitate such agreements, these processes cannot substitute for legislatively mandated official and public assent to the resulting settlement agreements. Resort to mediation can be extremely beneficial to all parties, but, as observed by the Court of Appeals, it is wise practice "to include language in a settlement agreement that the agreement is contingent upon compliance with the Open Door Law and that it must be approved at an open meeting." Lake County Trust Co., 883 N.E.2d at 136.

Because we conclude that the Plan Commission did not act in bad faith, we do not ad- dress the parties' dispute regarding whether Indiana Code § 36-7-4-1010(a) provides a basis to recover attorney fees in this case.

Conclusion. The trial court's order that the Plan Commission shall reimburse the Developers for their costs of mediation in the sum of $1,578.55 is vacated.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - NFP COA annexation decision reclassified

The Court of Appeals has reclassified its decision issued March 19th, in the case of Madison County Board of Commissioners and Madison County Auditor v. Town of Ingalls , from "Not for Publication" to "For Publication." Although the action was taken April 24th, ithe change has just been posted.

Here is some information from the Clerk's Docket:

4/16/09 -- APPELLANT'S PETITION FOR TRANSFER (9) CERTIFICATE OF SERVICE (9) BY MAIL DATE 04/16/09
4/16/09 ****RECEIVED 04/16/09: APPENDIX TO APPELLANT'S REQUEST FOR TRANSFER (1). JS 04/16/09
4/24/09 ISSUED THE ENCLOSED ORDER:
4/24/09 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
1. THE VERIFIED MOTION TO APPEAR AS AMICUS CURIAE AND MOTION TO PUBLISH IS GRANTED.
2. IACT AND IMLA ARE GRANTED LEAVE TO APPEAR AS AMICUS CURIAE IN THIS CASE.
3. THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON MARCH 19, 2009, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION, IS NOW ORDERED PUBLISHED
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE RILEY, J., AND DARDEN, J., CONCUR, AND VAIDIK, J., VOTES TO DENY SAID MOTION. KM
4/27/09 ****** ABOVE ENTRY MAILED ******

Here is the March 19th ILB summary of the opinion.

Here is a March 21st entry quoting a newspaper report that begins: "A controversial annexation by the town of Ingalls will stand under a ruling by the Indiana Court of Appeals. ."

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP) [Updated]

For publication opinions today (6):

Foundations of East Chicago v. City of East Chicago and State of Indiana - see ILB entry here.

In Thomas A. and Elizabeth A. Neu and Wells Fargo Bank v. Brett Gibson , a 23-page opinion, CJ Baker writes:

It has long been held that “equity will not suffer a wrong without a remedy.” King v. City of Bloomington, 159 N.E.2d 563, 564 (Ind. 1959). The parties in this case are engaged in a dispute regarding the foreclosure of their respective liens upon real estate located on Edgewood Avenue in Indianapolis (real estate). And this appeal follows our ruling in Gibson v. Neu, 867 N.E.2d 188 (Ind. Ct. App. 2007). * * *

We conclude that the appellants have properly preserved the issues and hold that the trial court properly determined that they were not entitled to a decree of foreclosure pursuant to their equitable subrogation lien. Also, while we find that the trial court properly denied the appellants' claims for interest amounts and attorney's fees under the terms of the prior mortgage that had been extinguished, remand is appropriate for the trial court to calculate the amount of statutory interest to which the appellants may be entitled. Finally, we conclude that the appellants are entitled to proceed with a sheriff's sale of the real estate. * * *

In our view, the legislature—in enacting the above statutes—desired to prevent situations occurring in circumstances such as these, where title to real property is left in limbo by a mortgagee who intends to take no action. Thus, we conclude that the trial court erred in refusing to allow the appellants to enforce their lien by way of foreclosure, and they should be able to request a sheriff's sale of the real estate in order to recover the value of their lien.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for the calculation of statutory interest to which the Neus may be entitled, and for further proceedings consistent with this opinion.

In The Kroger Co., d/b/a Kroger Supermarket v. Lu Ann B. Plonski, a 14-page opinion, Judge Brown writes:

In this interlocutory appeal, the Kroger Co., d/b/a Kroger Supermarket (“Kroger”), appeals the trial court's denial of its motion for summary judgment regarding a complaint filed by Lu Ann B. Plonski. Kroger raises several issues, which we consolidate and restate as whether the trial court erred by denying Kroger‟s motion for summary judgment on Plonski's negligence claim. We affirm.

In Beazer Homes Indiana v. Carriage Courts Homeowners Assoc., Inc. , a 7-page opinion, CJ Baker writes:

Here, we must determine when a lot becomes a lot for the purpose of assessing homeowner assessment fees pursuant to the contract between the parties. Under the facts of this case, a lot becomes a lot upon the filing of the final plat.

Appellant-defendant Beazer Homes Indiana, LLP f/k/a Crossman Communities Partnership (Beazer), appeals the entry of partial summary judgment in favor of appellee- plaintiff Carriage Courts Homeowners Association, Inc. (the Association), arguing that the plain language of the parties’ contract requires the entry of partial summary judgment in Beazer’s favor. Finding that the trial court erroneously interpreted the contract as a matter of law, we reverse and remand with instructions to enter partial summary judgment in Beazer’s favor and for further proceedings.

A.C., Alleged to be CHINS; M.C. v. IDCS

Teresa Torres v. Individual Family and Social Svcs. Admin.

NFP civil opinions today (4):

J.O., Alleged to be CHINS; K.O. v. IDCS (NFP)

In the Matter of D.W. et al.; A.W. v. Marion Co. Dept. of Child Svcs. (NFP)

In the matter of T.F. v. Indiana Dept. of Child Svcs. (NFP)

Clinton W. Gibson III v. Review Board of Ind. Dept. of Workforce Development, et al. (NFP)

NFP criminal opinions today (9):

Joshua Wynn v. State of Indiana (NFP)

Richard N. Sayles v. State of Indiana (NFP)

Chas J. Harper v. State of Indiana (NFP)

Tyler R. Hinds v. State of Indiana (NFP)

Adrian M. Rios v. State of Indiana (NFP)

J.D.C., II v. State of Indiana (NFP)

Jimetha Goree v. State of Indiana (NFP)

Kevin E. Taylor v. State of Indiana (NFP)

Blas Olais-Corrales v. State of Indiana (NFP)

[Updated at 2:22 PM] One more opinion has been added to the list:

Gregory S. Brown v. State of Indiana, a 15-page opinion, where Judge Najam concludes:

In sum, Detective Branham, who both applied for and executed the search warrant, relied on information from a caller completely unknown to him and did not corroborate the information or the caller's credibility. With no indicia of reliability, corroboration was necessary. The warrant was defective for lack of probable cause.

Neither can the State invoke the good faith exception to save an otherwise invalid warrant based on evidence that was not presented at the probable cause hearing. An officer's personal belief in the existence of a warrant is not objectively reasonable when the purported factual basis for that belief is information the officer kept to himself. The good faith exception requires that the probable cause determination be made based on evidence in the record presented to a judicial officer. Because Detective Branham's telephone conversation with Deputy Dixon played no part in the probable cause determination and issuance of the warrant, those facts cannot be used to invoke the good faith exception.

Detective Branham's reliance on the search warrant was not objectively reasonable because it was plain that probable cause had not been established. See Hirshey, 852 N.E.2d at 1014; Spillers, 847 N.E.2d at 957. Thus, we conclude that the good faith exception does not apply in this case. The trial court erred when it denied Brown's motion to suppress.

Reversed and remanded.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Ind. App.Ct. Decisions

Environment - Indiana Court of Appeals named as a Law Office Climate Challenge Partner by the ABA

From a release issued yesterday:

NDIANAPOLIS – The Court of Appeals of Indiana is pleased to be named as a Law Office Climate Challenge Partner by the Section of Environment, Energy, and Resources (SEER) of the American Bar Association.

By participating in the Best Practices for Office Paper Management and WasteWise components, the court has met all requirements needed to become a partner.

“We are very pleased to be recognized by the American Bar Association as a Law Office Climate Challenge Partner,” said Chief Judge John G. Baker. “As the first court in the country to join this program, I think our dedication to the betterment of the environment is clearly displayed.”

The Law Office Climate Challenge provides the legal profession with the opportunity to join in the environmental sustainability movement. The Court of Appeals of Indiana has taken a number of steps to improve the environment, including implementing a paper recycling plan in all offices, changing purchasing practices such that all copier and printer paper is 100% recycled and other office supplies are 30-100% recycled content, and implementing a policy whereby opinions to be handed down are circulated electronically instead of making a hard copy for each office.

In addition to becoming a Law Office Climate Challenge Partner, the Court of Appeals of Indiana has also been recognized by the U.S. Environmental Protection Agency as a WasteWise Partner.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Environment | Indiana Courts

Ind. Decisions - COA rules in Foundations of East Chicago case

Well, it could have been a pretty spectacular ruling, coming on the next to last day of the session, and addressing the issue of the constitutionality of non-related legislation inserted into the budget bill. But it was not to be, although the Court of Appeals issued its 2-1 decision today in the case of Foundations of East Chicago v. City of East Chicago and State of Indiana, with three separate opinions.

This case name may sound familiar to you, the ILB wrote a long entry about it just this last Sunday, talking about both an order issued by CJ Baker some days ago about the admissibility of "legislative history" in Indiana, and about the ILB's take on the constitutionality of provisions shoveled together into a budget bill at the end of a legislative session.

CJ Baker clears the decks of the constitutionality issue in the first paragraph of the opinion today, writing:

In this appeal, the issue as presented by the appellant is the constitutionality of a statute. Inasmuch as we find that the constitutionality of the statute has no effect on the ultimate relief sought, however, we decline to answer the question.

Law - "Maryland State Law Targets 'Minimum Pricing'"

Joseph Pereira of the Wall Street Journal reports today in a long story that begins:

In a move that could lead to lower prices for consumers across the country, Maryland has passed a law that prohibits manufacturers from requiring retailers to charge minimum prices for their goods.

The law, which takes effect Oct. 1, takes aim at agreements that many manufacturers have been forcing on retailers, requiring them to charge minimum prices on certain products. The practice has surged since a controversial 2007 U.S. Supreme Court ruling that no longer makes such agreements automatically illegal under federal antitrust law.

Under the new state law, retailers doing business in Maryland -- as well as state officials -- can sue manufacturers that impose minimum-pricing agreements. The law also covers transactions in which consumers in Maryland buy goods on the Internet, even when the retailer is based out of state. That could potentially affect manufacturers throughout the country.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to General Law Related

Courts - More on "Pushing the Supreme Court Toward Transparency"

Updating this ILB entry from April 26th, a nearly two-hour C-SPAN video of the hearing is now available. In addition, Tony Mauro of The Blog of Legal Times has a second story today on the hearing, this one headed "Thomas and Breyer Discuss Supreme Court Clerk Diversity at Budget Hearing."

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Courts in general

Ind. Decisions - More on: Appeal withdrawn by Terre Haute Tribune-Star in $1.5 million defamation case

Updating this ILB entry from April 21st, Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, writes today:

One of the concepts I teach students in my communications law class at Indiana University-Purdue University Fort Wayne is that of qualified privilege, sometimes called fair report privilege.

The basic concept is that if journalists report accurately and fairly on what happens in government – in Congress or in a City Council meeting or in a courtroom – they are immune from a libel conviction connected to that reporting. The same idea applies to information that journalists obtain from court records and other government documents open to the public.

“The fair report privilege protects media reports of official government actions, regardless of possible defamatory elements in those reports,” Kyu Ho Youm, a First Amendment expert and professor at the University of Oregon, writes in the textbook “Communication and the Law.”

“The rationale is that citizens in a participatory democracy are entitled to such information,” Youm writes.

Courts have upheld the concept. But in a notable exception last July, a Sullivan County jury ordered the Terre Haute Tribune-Star to pay a Clay County deputy sheriff $1.5 million for accurately reporting about a complaint filed against him. * * *

The jury’s decision to award damages against the newspaper in spite of its accurate reporting sent chills through the journalism community, which regularly – and rightly – reports when official allegations are made against police officers.

The Tribune-Star filed an appeal, which First Amendment experts expected to be successful. But suddenly and surprisingly, the newspaper dropped its appeal. Court records indicate it was dropped after settlement negotiations began.

The newspaper owners aren’t talking about it – out-of-court settlements typically forbid either side to give any terms of the settlement. The Sullivan County ruling does not set a legal precedent, but it is a shame that it never made it to the Indiana Court of Appeals.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Ind. Trial Ct. Decisions

Environment - "After near-record lows, Lake Michigan's water level rises nearly 2 feet"

A lengthy story Sunday in the Milwaukee Journal-Sentinel, by Dan Egan, reported:

Lake Michigan is on the rebound after flirting with near-record low water levels in 2008.

In January 2008 the water was so low that the human polar bears taking their annual New Year's Day plunge off the Door Peninsula had to navigate around yellow police tape so they didn't slash their feet on an offshore shipwreck.

Sixteen months and two cold and wet winters later, the lake has added more than 2 feet of water, and it continues to rise almost daily.

Numbers provided by the Army Corps of Engineers last week showed the lake is about 9 inches higher than at this time last year, and the agency is predicting it to continue to add inches into late summer.

Despite the big gain, Lake Michigan remains about 9 inches below its long-term average for April.

The news is bringing sighs of relief up and down Wisconsin's east coast, because low water means more than just shrinking numbers on a chart.

It can render docks useless, create hull-cracking hazards for recreational boaters, force freighters to lop their cargo loads and stick marina operators with steep dredging bills.

Lake Michigan's official water level has been in steady flux ever since record keepers planted their first gauges in the lake in the 1800s. It typically fluctuates about a foot during any given year, peaking in late summer. In addition to seasonal dips and rises, the lake level has historically swung by as much as 6 feet over periods of decades because of long-term weather patterns.

People who live along its shoreline or spend a lot of time on the water have learned to live with the natural fluctuations. But after hitting near-record highs in the late 1990s, levels dropped dramatically and have remained well below their long-term average for the last decade or so - an unusually long period.

In January of last year, water experts said if the lake continued to drop over the winter - as it normally does - it appeared headed toward record-low territory.

Then during the nasty winter of 2008, Lake Michigan actually started to climb during the winter months, and the rebound has been picking up steam since. * * *

Lake levels have been a hot political topic in recent years due to the low water and a group of Canadian property owners who claim an Army Corps dredging project is a big part of the problem.

In 2005, the Georgian Bay Association released a report contending that the Army Corps essentially opened a drain hole on Lakes Michigan and Huron in the early 1960s when it dredged the St. Clair River to allow oceangoing freighters access to the upper Great Lakes.
Dredging's effects

Everyone agrees that the 1960s dredging, combined with early dredging and riverbed mining on the St. Clair River, resulted in a permanent loss of about 16 inches in the long-term average of Lakes Michigan and Huron, which are actually one body of water connected at the Straits of Mackinac. The reason: The St. Clair is the major outflow for the two lakes, and dredging led to more water flowing down the river and into Lake Erie.

The Georgian Bay study, however, claimed that the 1960s dredging removed the rocky riverbed down to erosion-prone clay and sand, and the river has been carving a deeper channel ever since.

The study pointed to the relative difference in lake levels between Lake Erie and Lakes Michigan and Huron as evidence of the water loss. Although both Erie as well as Lakes Michigan and Huron fluctuate, the relative difference between the two basins has historically remained constant. If, for example, Lakes Michigan and Huron dropped 8 inches, Lake Erie would as well. That has not been happening.

Politicians have been demanding answers from the International Joint Commission, a binational board charged with handling Canadian and U.S. boundary waters issues. The IJC commissioned a study to get to the bottom of the question, and a draft of that study is scheduled to be released May 1.

IJC officials are mum about the details of the study results, but they have previously said other forces could be at play, including a change in the relative amounts of precipitation over both basins; Lake Erie might simply be getting more rain and snow than the lakes above it. * * *

Regardless of the study results, three separate times in the last century the federal government authorized the installation of some sort of flow-slowing structure on the St. Clair River to compensate for the acknowledged 16-inch loss to Lakes Michigan and Huron, but the work was never done.

Pressure is mounting for the Army Corps to finally do the job, given that some studies evaluating the effects of climate change on the Great Lakes in the coming decades predict their long-term averages will drop by as much as 3 to 6 feet, according to the Environmental Protection Agency, though not everyone agrees that a warmer climate will mean lower lake levels.

Georgian Bay Association homeowners don't want to wait to see what happens. They say now is the time for the Army Corps to plug the hole in the St. Clair River created by the earlier dredging projects, even if the IJC's new study reveals that the hole is not getting any bigger.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Environment

Courts - "Court Weighs Funding For Special Education"

Robert Barnes and Daniel de Vise of the Washington Post reported in this story yesterday that begins:

The Supreme Court will consider a question this week that that has riled parents, cost local school boards here and around the country hundreds of millions of dollars, and vexed the justices themselves: When must public school officials pay for private schooling for children with special needs?

The issue has emerged as one of the fastest-growing components of local education budgets, threatening to "seriously deplete public education funds," which would then detract from the care of students with disabilities who remain in the system, according to a brief filed by the nation's urban school districts.

It has also become one of the most emotional and litigious disagreements between frazzled parents and financially strapped school officials, with the battles often ending in court. District of Columbia schools allocated $7.5 million of this year's $783 million budget just for such legal costs.

Congress and the court have already made it clear that every child with disabilities has a right to a "free appropriate public education." If the school system can't provide one for a child with a disability, it must reimburse parents for private school costs.

But the question for the court now is whether schools must be given a first chance to provide those services before placing the child in a private school. Some parents say that could force students, especially poor ones, to spend time in an undesirable situation before getting the help they really need.

The argument is today, the case is Forest Grove School District v. T. A. (08-305). Here are the documents, via the SCOTUSBlog Wiki.

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Courts in general

Environment - Track swine flu via google maps

Check it out here. The map takes a moment to populate. Then move the slider bar down to get a view of the entire U.S. or a world view. Then zero in on Indiana. According to the key:

Pink markers are suspect
Purple markers are confirmed or probable
Deaths lack a dot in marker
Yellow markers are negative

Posted by Marcia Oddi on Tuesday, April 28, 2009
Posted to Environment

Monday, April 27, 2009

Ind. Law - More on: Golf cart bill is on third reading

Updating this ILB entry from April 13th, which gives the background, the House today concurred in the Senate amendments to HB 1483, by a vote of 93 to 0. The bill is on its way to the Governor. Here is the digest:

Off-road vehicles, farm wagons, and golf carts.

Defines "farm wagon" as including three, four, and six wheeled motor vehicles with a folding hitch that is used for certain purposes. Prohibits a certain type of farm wagon from operation on an interstate highway, or a state highway, except under specific circumstances. Authorizes an individual at least 15 years of age to operate a motorized farm wagon on a highway. Prohibits the use of a motorized farm wagon operated on a highway to tow another vehicle.

Prohibits an individual from operating a golf cart on a highway, except when a city or town has adopted an ordinance (ordinance) authorizing the use of golf carts on the city's or town's highways. Specifies that an ordinance: (1) may require that a golf cart display a slow moving vehicle sign or a red or amber flashing lamp; and (2) must require an individual operating a golf cart in the city or the town to hold a driver's license. Requires financial responsibility for golf carts operated pursuant to an ordinance. Requires a person removing a wrecked or damaged golf cart from a highway to remove any glass or other foreign material dropped upon the highway from the golf cart. Makes conforming amendments.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Indiana Law

Ind. Law - Even more on: "Farm interests oppose Indiana's puppy mill bill" [Updated]

Updating this ILB entry from earlier today, Bill Ruthhart of the Indianapolis Star just posted this story to his paper's site:

Lawmakers found new areas on which to disagree this afternoon over legislation that would regulate Indiana's commercial dog breeders.

In the second meeting of a joint House-Senate conference committee on House Bill 1468, Sen. Brent Steele, R-Bedford, recommended changes to the legislation that were met with objections from its author, Rep. Linda Lawson, D-Hammond.

Steele proposed inserting provisions into the bill that would change the state's laws for bail bondsman. Democrats have opposed those changes, and Lawson characterized the move as a "poison pill" aimed at killing the stiffer animal-cruelty laws and commerical breeding regulations in HB 1468.

Steele's proposal also would not allow local cities and towns to have their own, stricter breeding laws. Some communities such as Fort Wayne and Bloomington already have their own licensing requirements and regulations for kennels.

Lawson said she also opposed that change.

The conference committee recessed this afternoon without taking action on the bill. A next meeting has not been scheduled yet.

The story speaks for itself . . .

[Updated 4/28/09] Ruthhart reports this morning:

Lawson said she didn't know whether she could agree to a bill that would prevent local communities such as Bloomington and Fort Wayne from enforcing their own ordinances.

"There are communities that have much stronger language than this bill is going to have," she said.

"This is disgraceful. It's bad public policy."

Steele disagreed and said he would not budge on his insistence that breeders be subjected to the same requirements across the state.

"It's a business that can be conducted statewide," he said, "and I think the laws ought to be uniform statewide."

Lawson also objected to a change by Steele that would exempt breeders who raise hunting and law enforcement dogs, calling it "absolutely unreasonable." She said the changes were not about protecting dogs, but about looking out for the interests of breeders.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Indiana Law

Law - Amid continued rumblings that the Senate might not confirm her, supporters of Dawn Johnsen are stepping up efforts for a vote

So reports David Ingram of The Blog of Legal Times this afternoon.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to General Law Related

About this blog - 6th birthday of ILB; how to become a supporter; and an important heads up

6th Birthday. The Indiana Law Blog had its 6th Birthday on March 16th. To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the NewBlog Site - the one you are reading now.

High Stats. The ILB quietly made its SiteMeter stats accessible last year.

In addition, check Justia, a site that ranks around 2,000 law blogs. The ILB consistently ranks in the top ten, and is often ranked first.

Supporters. Many thanks to the Indiana State Bar Association, which signed on as an annual supporter July 1st, 2007. And Doxpop, LLC, which has been an ILB supporter since April 1, 2008.

Become an Annual Supporter. Your firm or company can join the list of annual ILB supporters. I hope you will consider doing so, thereby permitting me the time to keep the ILB operating at a consistently high level.

What will be your benefits? Your name listed as a supporter in the right-hand column and on the supporters' page with a link to your site. Exposure to a statewide and national legal readership. The knowledge that you are contributing to an effort that has demonstratively enhanced communication and knowledge, both within the Indiana legal community, and with the general public.

Non-benefits of supporting the ILB. The ILB speaks with an independent voice, supporters have no influence on our editorial judgment.

Contact me to find out about adding your firm or organization to the list of annual supporters of the Indiana Law Blog.

Individual Donations. Of course, individual donations also are very welcome.

An Important Heads Up: At least once a year the ILB posts a plea for supporters, with no result. Aside from the supporters listed above, the ILB is entirely self-funded. During the six years I have been producing the ILB, I have moved from active law practice to the category of semi-pensioner. This summer I will be evaluating whether I can afford to continue to contribute an average of four hours a day to the ILB, or whether I might better use that time otherwise. Financial support will be a determining factor.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to About the Indiana Law Blog

Ind. Decisions - Transfer list for week ending April 24, 2009

Here is the transfer list for the week ending April 24, 2009. It is three pages long.

Two cases were granted transfer last Thursday, April 23rd. They are detailed in this ILB entry from April 25th. Note on today's transfer list that the entry for each grant is: "Granted (No vote line)" -- something not seen previously.
_________

Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.

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, April 27, 2009
Posted to Indiana Transfer Lists

Environment - IDEM enforcement during the Daniels' adminisration

A companion-piece to her story yesterday on IDEM permits during the Daniels' administration is today's story by Gitte Laasby of the Gary Post-Tribune on IDEM enforcement. Here is a quote from the lengthy story:

IDEM sent 21.6 percent fewer violation letters to facilities in 2008 than it did in 2003. The letters are the first notice to a facility that IDEM has found violations.

Janet McCabe, former head of IDEM's air division, pointed out that top managers with IDEM decide when to enforce.

"Enforcement is a discretionary action. Like the police don't have to stop every speeder. They make decisions about whom to stop," said McCabe, now executive director of Improving Kids' Environment. "The agency has said their approach is to use the least onerous approach in trying to return sources to compliance. This would be consistent with that."

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Environmental Issues

Courts - "Justices Asked to Weigh Free Speech vs. License Plates"

Updating these earlier ILB entries on "Choose Life" license plates, Adam Liptak of the NY Times devotes his "Sidebar" column today to the topic, concluding: "The next great First Amendment battleground, it turns out, is on the back of your car." More quotes:

Illinois, on the other hand, has refused to issue a “Choose Life” plate, a decision that was challenged by a group called Choose Life Illinois, which promotes adoption. The federal appeals court in Chicago upheld Illinois’ refusal in November [ILB entry here], and this month the losing side asked the Supreme Court to return to the question of what the constitution has to say about speech on license plates. [Here is the cert petition]

The Supreme Court has turned back at least four requests to hear cases concerning “Choose Life” license plates in recent years. But the volume of litigation on this question and the doctrinal free-for-all it has given rise to in the lower courts have convinced many legal scholars that the court must soon step in.

There have been lawsuits in Arizona, California, Missouri, New York and New Jersey challenging denials of “Choose Life” plates. And there have been a similar number of suits on the other side, challenging approvals of such plates, in Florida, Louisiana, Ohio, Oklahoma, South Carolina and Tennessee.

There are apparently only two states with specialty plates sympathetic to abortion rights. Montana has a plate that says “Pro-Family, Pro-Choice,” and Hawaii has an official decal that says “Respect Choice.”

Though Illinois refused to approve a “Choose Life” plate, it does have some 60 other specialty plates, including ones for the alumni of 18 different colleges, for people who support youth golf and for those who wish to assure you that they are “pet friendly.” Five different plates put hunters to the choice of declaring whether they like to shoot deer, ducks, geese, pheasants or turkeys.

The state also recently sold a “special event” license plate, good for only two months, saying “Illinois Salutes President Barack Obama.”

Illinois says that it should be allowed to decide what goes on its license plates because they convey government rather than private speech. If that is right, the First Amendment drops out of the equation, as the government is free to say what it likes.

But most of the appeals courts to consider “Choose Life” license plates have ruled that specialty plates convey the positions of the motorists involved. The appeals court in Chicago, the United States Court of Appeals for the Seventh Circuit, ruled against Illinois on this point. Specialty plates, the court said, are “mobile billboards” for “organizations and like-minded vehicle owners.”

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Courts in general

Ind. Law - Still more on: "Farm interests oppose Indiana's puppy mill bill"

Updating this ILB entry from Sunday, the Indianapolis Star today has an editorial that is in my opinion much too "cutsie". Here is the gist, omitting many of the unnecessary puns:

Faced with ferocious resistance from the farm lobby and some legislators, along with a sort of stealth opposition from the state Department of Agriculture, the chief sponsor has offered new concessions to an already watered-down dog-breeder bill.

Key doubters in the legislature say they might be able to go for it. The ag department calls itself a backer of the bill -- as long as "a few changes" were thrown in.

The changes have been more than few since state Rep. Linda Lawson, D-Hammond, introduced House Bill 1468 in response to numerous reports, including The Star's, of crowded, brutal conditions at commercial breeding operations.

Aimed at one of the nation's weakest anti-cruelty laws, HB 1468 would have required the kennels to register with the state, undergo inspections, provide exercise and other health necessities, allow purchasers to return sick or defective pets, and limit the number of dogs a kennel could produce and the frequency with which a female could be bred. It sounded good to animal lovers and those concerned about the scourge of canine overpopulation. Too good.

The Senate version, driven by breeders and the Indiana Farm Bureau, omitted several elements, including the consumer safeguard and the population caps. Lawson and her allies hoped to close gaps in conference committee. But funny things happened on the way.

The Humane Society of the United States, which supports Lawson's bill and also has criticized conditions at large livestock farms in other states, became the bogeyman in a scare campaign by the Farm Bureau and some legislators, who made the laughable charge that Indiana agriculture was the target. While refusing to fess up to any stance, the state ag department played along behind the scenes, passing out anti-Humane Society literature to lawmakers.

As thousands of suffering animals waited for the barking to subside, Lawson on Thursday dropped the breeding caps and the inspections, plus other demands on the shadowy world of puppy mills.

The danger, of course, is that HB 1468 may become a bill that legalizes puppy mills, rather than a bill that regulates them.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In James R. Recker, II v. State of Indiana, a 7-page opinion, Judge Kirsch writes:

Recker [ILB: an attorney who the Roll of Attorneys indicates has both "concluded Discipline" and is "Pending Discipline"] argues that the trial court erred when it denied his motion to modify his Class D felony conviction for operating a vehicle while intoxicated to a Class A misdemeanor conviction. He relies on Indiana Code section 35-38-1-1.5 for these contentions. He asserts that the trial court was required to grant his motion because the prosecutor had consented to the proposed modification in the original plea agreement, the trial court agreed to the condition by implementing it into the judgment of conviction, he had not committed any prior felony which had been reduced to a misdemeanor, and he had completed all of the terms of his probation prior to being arrested on January 3, 2008.

Whether Recker is entitled to modification of conviction is a matter of statutory interpretation. * * *

Indiana Code section 35-38-1-1.5(c) states that the trial court is not required to convert a judgment to a Class A misdemeanor if the court finds that the defendant violated a condition set by the court or if the period of probation expired prior to the defendant successfully completing the conditions. Ind. Code § 35-38-1-1.5(c)(1)(2). The subsection states further that the trial court may not convert the judgment if a defendant commits a new offense before the conditions set by the court expire. Id. Recker violated two of these provisions. First, he did not successfully complete his 180 hours of community service before his probationary period expired on February 25, 2007; instead, he sought and obtained four extensions of time in which to do so. Therefore, the trial court was not required to convert his conviction because he had not successfully completed the conditions of his probation before his probationary period expired.

Second, at the December 18, 2007 hearing, the trial court extended Recker’s probationary period until a hearing on January 22, 2008 to verify that he had completed his community service hours. Recker was subsequently arrested on January 3, 2008 and charged with operating a vehicle while intoxicated as a Class D felony. Thus, he was still on probation at the time that he committed the new offense. Under Indiana Code section 35-38- 1-1.5(c), the trial court may not convert a conviction when a defendant commits a new offense before the probationary conditions expire. We, therefore, conclude that the trial court did not err when it denied Recker’s motion to enter judgment as a Class A misdemeanor.

NFP civil opinions today (7):

William Gilham v. North Vernon Beverage Co. Inc. (NFP) - "William “Toby” Gilham was injured during the course of his employment at North Vernon Beverage Company (“Beverage”). Less than a month after filing a worker’s compensation claim, Gilham was discharged from employment. Gilham then filed a retaliatory discharge suit against Beverage, who responded that Gilham was discharged for violating its alcohol policy. The trial court granted summary judgment in favor of Beverage. Gilham now appeals, arguing that he presented sufficient evidence that Beverage’s stated reason for termination was pretextual to survive a motion for summary judgment. Concluding that Gilham did designate sufficient evidence of retaliatory intent, we reverse the trial court’s grant of summary judgment and remand for further proceedings. "

Richard M. Davis v. Judith K. Davis n/k/a Judith K. Gunther (NFP) is a 2-1 opinion with the majority writing: "Richard Davis appeals the trial court‟s second amended dissolution decree issued following a prior remand with instructions from this court. For our review, Richard raises two issues, which we restate as: 1) whether the trial court abused its discretion when it calculated the added value of an oil and gas lease to a 110-acre farm owned by the parties during the marriage; and 2) whether the trial court abused its discretion when it calculated Richard's 2003 farming expenses. Finding no error, we affirm." From the dissent: "I concur with the majority as to the calculation of the 2003 farming expenses but respectfully dissent as to the valuation of the farmland."

David W. Garrett v. Fifth Third Bank (NFP) - " Concluding that Garrett has failed to prove that a genuine issue of material fact exists regarding whether he was contractually liable for the debts of his company pursuant to a guaranty he signed in his own name, we affirm the trial court’s entry of summary judgment on this
issue. However, concluding that Garrett has established that a genuine issue of material fact exists regarding whether the assets of his company were liquidated in a commercially reasonable manner and then applied to reduce the amount of money for which he was held personally liable pursuant to the guaranty, we remand for a trial on this issue."

The Term. of the Parent-Child Rel. of T.D.; S.D. v. State of Indiana Dept. of Child Svcs. (NFP)

Term. of the Parent-Child Rel. of Z.S.L.W. and A.W. v. State of Indiana, Dept. of Child Svcs. (NFP)

Term. of the Parent-Child Rel. of Ky.B., Da.T., De.T., and Ko.B; B.T. v. State of Indiana, Dept. of Child Svcs. (NFP)

Involuntary Term. of the Parent-Child Rel. of R.H., R.H., R.H., and R.H.; L.W. v. Marion Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (3):

Richard Scott Snyder v. State of Indiana (NFP)

Phillip J. Jessup v. State of Indiana (NFP)

James A. Dobbs v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Ind. App.Ct. Decisions

Indiana Law - "Midwest's Midsize Law Firms Faring Better Than Large Urban Rivals"

This article by Lynne Marek and Tresa Baldas in today's issue of The National Law Journal mentions two Indianapolis firms - here are some quotes:

Barnes & Thornburg and Ice Miller, both firms based in Indiana, have also evaded the need to chop their work forces and are bringing on new associates this fall, unlike some larger firms that are delaying start dates.

"We haven't [cut lawyers] because we don't need to," said Byron Myers, the chief managing partner at Ice Miller. "The business climate is a bit different here than New York, Los Angeles and Chicago."

The midsize firms in the Midwest were more conservative about bringing in associates in recent years, said David Van Zandt, the dean of Northwestern University School of Law.

The big firms, which have been increasing the size of their classes by 10 percent annually during the past few years, "weren't planning well," Van Zandt said.

Ice Miller also has eight associates coming in September, down slightly in number from last year. The firm's 10-week summer program for 12 associates was reduced from 11 weeks but is still longer than at many firms this year. Litigation, labor and employment, and intellectual property matters have kept Ice Miller's 250 lawyers busy despite flagging transactional work, Myers said.

Barnes & Thornburg, which has about 460 lawyers, has taken the downturn as an opportunity to expand significantly, adding offices in Atlanta and Columbus, Ohio, this month. The firm will still bring on 12 new associates in the fall, down from 15 last year, said Alan Levin, Barnes & Thornburg's managing partner. "It's a funny environment now with all the stuff that's happening, and we're trying to take advantage of it," he said.

The Midwest firms also say they've more conservatively managed their costs, avoiding overhead in expensive cities and the fast-paced ramp-up in attorneys and offices that have overloaded some firms up with debt. While Barnes & Thornburg may be expanding its footprint with new U.S. offices, it isn't spending money on expensive overseas outposts, Levin said. Ice Miller's Myers said his firm "carries no debt."

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Indiana Law

Ind. Law - "It's the Law: State law allows most tattoos, body piercings"

Ken Kosky's NWI Times' "It's the Law" column for today, looks at Indiana's tattoo and body piercing law. Some quotes:

There was a time when some tattoo artists would be prosecuted for practicing medicine without a license, but Indiana law now states it is perfectly legal to give people tattoos or body piercing.

Porter County Prosecutor Brian Gensel said Indiana law states a tattoo artist or body piercer can only be prosecuted for performing their services on a person under the age of 18. And tattoo artists and body piercers may perform their work on someone under 18 as long as the minor's parent or guardian provides written permission and is present when the work is performed.

Gensel said that years ago, he recalls some cases of parents complaining that their minor children got tattoos, but it turned out the children lied about their ages. Gensel said he hasn't heard of problems recently, perhaps because tattoo parlors and piercing facilities now require identification.

If someone violates the tattooing or body piercing a minor statute, they can be charged with a Class A misdemeanor, which is punishable by as much as a year in jail.

Even though Indiana law largely allows tattooing and body piercing, the statute states that a unit of government (like a city, town or county) may adopt an ordinance that is at least as restrictive or more restrictive.

Gensel said tattoo parlors are also required to follow state health regulations.

Next week It's the Law will focus on the health regulations placed upon businesses offering such services.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Indiana Law

Ind. Courts - Proposed changes to the Rules for Court-Administered Alcohol and Drug Programs

Check here for more information.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/27/09):

Thursday, April 30th

9:00 AM - Juan C. Lucio v. State of Indiana - Lucio was convicted on two counts of murder and one count of conspiracy to commit murder. The jury recommended a sentence of life without the possibility of parole, and the Hamilton Superior Court sentenced him accordingly. In this direct appeal, Lucio argues the trial court should have declared a mistrial after a State's witness violated a motion in limine.

Next week's oral arguments before the Supreme Court (week of 5/4/09):

None currently scheduled.

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.

This week's oral arguments before the Court of Appeals (week of 4/27/09):

None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 5/4/09):

Tuesday, May 5th:

1:30 PM - Eric Dowdell vs. City of Jeffersonville - Whether Jeffersonville can enforce an ordinance prohibiting all persons defined as sex offenders from ever having unrestricted access to their parks. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Barnes. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

Wednesday, May 6th:

3:00 PM - U.S. Bank, NA vs. Integrity Land Title Corporation & Michael Davidson - During the course of a February 2006 real estate transaction, Integrity Land Title Corp. contracted with a third party to perform a title search, which failed to report the existence of a 1998 judgment lien against the title holder. Southern National Title Insurance Company issued a title insurance policy to the mortgage holder, which subsequently assigned the mortgage to U.S. Bank, NA. In August 2006, the judgment creditor filed a complaint to enforce and foreclose the judgment lien against the real estate. In February 2008, the trial court granted summary judgment in favor of the judgment creditor, leaving U.S. Bank's mortgage completely unsecured. In December 2007, U.S. Bank filed suit against Integrity and Southern National, which has since been liquidated, alleging contract and tort theories of liability. U.S. Bank and Integrity filed cross motions for summary judgment. On September 2, 2008, the trial court denied U.S. Bank's motion and granted Integrity's motion. On September 26, 2008, U.S. Bank filed a motion to correct error pursuant to Indiana Trial Rule 59 and a motion for relief from judgment pursuant to Indiana Trial Rule 60 based on newly discovered evidence of alleged misrepresentations made by Integrity's president. In support of its motions, U.S. Bank attached an affidavit from its counsel and a deposition of Integrity's president. Integrity filed a statement in opposition and a motion to strike the affidavit and the deposition. On October 20, 2008, the trial court denied U.S. Bank's motions and granted Integrity's motion to strike. On appeal, U.S. Bank challenges the trial court's granting of Integrity's motion to strike and its determination that Integrity owed no duty to U.S. Bank either in contract or in tort. The Scheduled Panel Members are: Judges Robb, May and Crone. [Where: Vienna Ballroom, Conrad Hotel, 50 W. Washington Street, Indianapolis]

Thursday, May 7th:

1:30 PM - Columbus Medical Services vs. Liberty Healthcare Corporation - Appellant, Columbus Medical Services, appeals the judgment entered in favor of Appellee, Liberty Healthcare Corporation, awarding Appellee attorney fees and costs. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Crone. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

Friday, May 8th:

10:00 AM - Edward Rose of Indiana vs. Metropolitan Board of Zoning Appeals, et al - Edward Rose of Indiana, LLC filed a variance of development standards petition requesting a variance to legally establish an identification/informational pole sign that already existed on its property. The Metropolitan Board of Zoning Appeals denied the petition for failure to meet the burden of proof as to the three statutory criteria found in Indiana Code section 36-7-4-918.5(a). Edward Rose appealed the BZA's decision to the trial court, which held that Edward Rose had satisfied two of the three statutory criteria but had failed to prove the third. Edward Rose appeals the trial court's finding that it had failed to prove that strict application of the zoning ordinance would "result in practical difficulties in the use of the property." The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where: Richardson Chapel, on the campus of Franklin College, 101 Branigan Boulevard, Franklin, Indiana,]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, April 27, 2009
Posted to Upcoming Oral Arguments

Sunday, April 26, 2009

Law - "Fight for Astor Estate Mirrors Battle 50 Years Ago "

Here are some earlier ILB entries on the legal battle involving the estate of Brooke Astor. Today John Eligon reports in the NY Times, in a story headlined "Fight for Astor Estate Mirrors Battle 50 Years Ago ." The story begins:

The main beneficiary is accused of scheming with others to drain the estate. The deceased, it is alleged, did not have the mental capacity to execute the will. Document experts have been asked to examine the authenticity of the will, the credibility of the witnesses to its signing has been questioned and the court fight has been a headline-grabbing sensation.

Sound familiar?

It might. But this probably is not the case you are thinking of.

The year was 1959. John Jacob Astor VI accused Brooke Russell Astor of using “improper conduct and undue influence” to persuade her husband, Vincent Astor, who had died from a heart attack at 67, to change his will. When Vincent signed off on his will, he “was mentally deficient,” claimed John Jacob, his half brother.

Now, half a century later, Mrs. Astor, who died two years ago at 105, is again at the center of a tug of war over one of New York City’s most venerable and benevolent family fortunes — only this time it is her will and mental state that are being probed.

Opening statements are scheduled Monday in the criminal trial of Mrs. Astor’s son, Anthony D. Marshall, who is accused of taking advantage of her diminished mental state as a result of Alzheimer’s disease to force her into changing her will and direct millions his way. Francis X. Morrissey Jr., a lawyer who worked on Mrs. Astor’s estate, is also facing fraud and forgery charges.

Although this case, which involves criminal allegations, is more serious than the 1959 dispute, which was settled in surrogate’s court, they share subplots of manipulation, greed and plenty of fodder for the news media. And there is, of course, the Astor name.

There is more, the NYT has posted 51 pages of court documents from the 1959 struggle over the will of Vincent Astor, Brooke Astor's third husband.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to General Law Related

Environment - "Without Superfund Tax, Stimulus Aids Cleanups"

A long story today in the NY Times, reported by John M. Broder, begins:

VINELAND, N.J. — The Superfund program to clean up the nation’s most contaminated industrial sites was established nearly 30 years ago on the principle that those responsible for toxic pollution should pay for it.

So why is the government spending $600 million in stimulus money to work on sites like the defunct arsenic-fouled Vineland Chemical Company plant here in South Jersey?

Environmental Protection Agency officials and environmentalists say the Superfund program has been chronically underfinanced since a tax that supported it expired in 1995.

What is more, the old Vineland plant, like hundreds of other toxic dumps, is a so-called orphan site, meaning that either no responsible party has been found or money from the original polluter has been exhausted. So the taxpayer is on the hook for the remedial work. * * *

Until 1995, cleanups at orphan sites like Vineland were paid in part from a trust fund based on taxes from polluting industries. But that year, the Republican-run Congress, responding to industry complaints, refused to reauthorize the Superfund tax, which once collected hundreds of millions of dollars a year from chemical and oil companies.

President Obama wants to restore the tax and assumes it will provide $1 billion in revenues for his 2011 budget.

Until then, financing for work at the nation’s nearly 1,600 Superfund sites will come from taxpayers in the form of E.P.A. appropriations or stimulus money. The $600 million in stimulus money virtually doubles the amount available for Superfund work in the current fiscal year, officials said. * * *

E.P.A. officials said the agency continued to spend millions of dollars a year investigating Superfund polluters and forcing them to pay for their misdeeds. None of the stimulus money will go to lawyers to pursue recovery, they said, though the new money will allow the agency to use appropriations to pursue polluters.

Officials said the 50 sites receiving stimulus money were chosen because their cleanups had progressed considerably. The goal at most sites is to remove the toxins and to allow the property to return to productive or recreational use.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Environment

Courts - "Pushing the Supreme Court Toward Transparency"

The Blog of Legal Times had an interesting entry last week, reported by Tony Mauro, on happenings at the "annual House hearing called to consider the Supreme Court's budget request." Things started normally, according to the entry, but then:

But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart -- a strong plea to the Court to ramp up its transparency and public face. Other committee members proceeded to pile on, telling the Court that the momentum toward openness that the Internet has created is so strong that the Court would be wise not to resist it. By the end of it Breyer and Thomas could have been forgiven if they started to think they'd been hit by a coordinated attack from wild-eyed techies.

The provocateur was conservative Rep. John Culberson, (R-Tex.) He started on the wrong foot when, in the course of extolling the power of the Court, he said, "Any five justices, in effect, can amend the Constitution." To which Thomas replied, "I hope not, my goodness." Breyer said calmly, "We interpret the Constitution," rather than amending it. "We don't see ourselves as amending the Constitution."

Seemingly energized, Culberson moved on to his main point, urging the Court to go to the next level of transparency. The justices had already talked about the occasional release of oral argument audiotapes, and of plans for an improved website. Culberson said there would be "no logical distinction" between what the Court has already done, and streaming the video of oral argument on the Court's web site Suddenly, dressed in high-tech clothes, the old debate over cameras in the Supreme Court had been resurrected. * * *

"The next American revolution is going to come through the Internet," Culberson told the justices. "I encourage you to break down that wall. It's as easy as pushing this button."

Serrano chimed in, also urging the Court to follow the trend and be more transparent. "That train has left the station," Serrano said, urging the Court to allow cameras in, "to keep the people informed."

The justices retreated into their usual arguments against camera access. As he often does, Breyer said the current members of the Court are just temporary stewards of a cherished institution who don't want to damage it in anyway. Before deciding if the gains are worth the risk, Breyer said "social science research" is needed. Later, Culberson implored Breyer and Thomas, "Don't wait for the social science research. Trust your hearts." * * *

Will today's impassioned display of pro-cameras sentiment in Congress make a difference? Thomas had said that the appropriations committee's views had spurred Supreme Court action on improving technology over the years. Thomas and Breyer must have left the hearing feeling the momentum on cameras coming from Congress and from technology was heading strongly toward openness. If the Court eventually, finally, says yes sometime in this century, today's hearing of the financial services and general government subcommittee of the House Appropriations Committee will have played a significant part.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Courts in general

Ind. Decisions - Interesting order issued in appeal pending opinion

Ed Feigenbaum's bi-weekly publication, Indiana Gaming Insight ($$ - subscribe here), has an interesting front-page story this week that I am reprinting with permission:

The Indiana Court of Appeals heard oral argument more than seven months ago in Frontiers of East Chicago, Inc. v. Attorney General, No. 49A02-0711-CV-00987.
This litigation arose over controversial last-minute insertion of language in the 2007 budget bill that authorized the City of East Chicago to void riverboat local development agreements upon the sale of the then-Resorts East Chicago Casino, a circumstance that was about to happen as the sale to Ameristar Casinos, Inc. was then pending.
[ILB note: Here is the case summary the Court posted on its oral argument calendar at the time: "Foundations of East Chicago v. City of East Chicago - In 2007 the general assembly passed a statute that would authorize East Chicago to void any term of a contract between the local casino licensee and Foundations of East Chicago, Inc. to provide money from gambling revenues for local economic development. East Chicago did so, and redirected to itself the money the Casino had been paying to Foundations. Foundations challenged the statute as unconstitutional. The trial court determined Foundations had no standing to bring its challenge, but then went on to find the statute did not violate the constitution."]
The Foundations of East Chicago, Inc. filed a December motion in which the recipients of LDA largesse sought to supplement the record with City of East Chicago e-mail messages allegedly related to the passage of the Code section, the "constitutionality of which is at issue in this appeal," as the court noted.
[ILB note: On Nov. 18, 2008 the docket reads: "Foundations' motion to supplement the record with public records of the City related to passage of contract voiding section." On Dec. 8, 2008 the docket records: "City of East Chicago's objection to Foundation verified motion to supplement the record."]
Earlier this month [April 6, 2009], Chief Judge John Baker responded to the motion, issuing an Order denying the request by the Foundations. He explains that:
It is a fact ... that Indiana does not record its legislative history. [citations omitted]
To determine the meaning and purpose of a statute, therefore, we focus primarily on the wording of the statute itself.
It may also be helpful to examine past versions of the statute, if any, and other statutes in the Indiana Code.
But we do not and may not look to the intent of individual legislators, lobbyists, or constituents who may have contacted their legislators to ask for a particular vote.
What matters in this state is the language of the statute, and that is where our analysis begins and ends.
Thus, the documents at issue in this motion [which include East Chicago emails discussing why it was lobbying for the passage of IC 4-33-6-7] are entirely irrelevant to our analysis of the substance of the appeal. The constitutionality of this statute is in no way affected by the machinations of the parties and legislators behind the scenes. Instead, we will examine the wording of the statute and render our decision based solely thereon.

ILB observations:

Oral argument was held Sept. 17, 2008 in Evansville, before Chief Judge Baker and Judges May and Brown.

Here is IC 4-33-6-7. The history line shows that the section first became law in 1993 and was amended in 2007:

As added by P.L.277-1993(ss), SEC.124. Amended by P.L.234-2007, SEC.302.

PL 234-2007 was HEA 1001 from that year. Taking a look at that law, we see that it was the 2007 budget bill. Looking at SECTION 302, we see that the change was to add a new subsection (c), dealing with an owner's license issued for the City of East Chicago, to the existing language.

Here is the wording of the new subsection (c), added in 2007, which went into effect upon passage:

(c) This subsection applies to an owner's license issued for the City of East Chicago. If a controlling interest in the owner's license is transferred, the fiscal body of the City of East Chicago may adopt an ordinance voiding any term of the development agreement (as defined by IC 36-1-8-9.5) between:
(1) the city; and
(2) the person transferring the controlling interest in the owner's license;
that is in effect as of the date the controlling interest is transferred. The ordinance may provide for any payments made under the redevelopment agreement, including those held in escrow, to be redirected to the City of East Chicago for use as directed by ordinance of the city fiscal body. A requirement to redirect a payment is valid to the same extent as if the requirement had been part of the original agreement. If the ordinance provides for the voiding and renegotiation of any part of a redevelopment agreement, the mayor of the City of East Chicago may negotiate with the person acquiring a controlling interest in the owner's license to replace any terms voided by the ordinance. Terms negotiated under this subsection must be ratified in an ordinance adopted by the city legislative body.

We've heard a lot again this session about various provisions being shoveled into the budget bill at the end of the session. I'm reminded of a great Indianapolis Star editorial, Logrolling: how bad laws get passed, lead editorial, Indianapolis Star, Sunday, January 7, 2001:

For years now, Indiana lawmakers have blithely ignored a section of the Indiana Constitution that bluntly mandates that every bill passed into law be “confined to one subject.”
Despite this admonition lawmakers passed a bill in 1991 that combined hold-your-nose legislative redistricting with the school funding formula, a bill that absolutely had to be passed. That’s how Indiana got such heavily gerrymandered districts that favor Democrats in the House and Republicans in the Senate.
In 1993, lawmakers again used the budget and school funding formula to pass a riverboat gambling that would never have passed on its own merits.
And in 1995, Republican lawmakers rammed through a repeal of the state’s prevailing wage law by stuffing it into a bill cutting auto excise taxes. It was a hard-to-swallow sandwich for many lawmakers, but they didn’t have much choice. Who wants to vote against a tax cut?
The constitutionality of these efforts has often been challenged in lawsuits, but the Indiana Supreme Court has been reluctant to strike down laws solely because they originated in multi-subject bills.
. . . [L]ogrolling has reached such outrageous levels that lawmakers might as well just stuff everything they do into one giant bill each session and send the entire mess to the governor in a wheelbarrow with a take-it-or-leave-it note.

[More at 6:00 PM] Here is a little more on the appeal, via a September 2008 Indiana Gaming Insight artcle:

As we told you here more than 18 months ago, the original lawsuit alleged the inclusion of the item in the budget bill violates assorted provisions in the Indiana and United States constitutions, and sought a permanent injunction that would prohibit the Indiana Gaming Commission or the City of East Chicago from acting upon the language.
The complaint alleged that the section, added courtesy of Sens. Frank Mrvan (D) of Hammond and Sam Smith (D) of East Chicago, constitutes unconstitutional special legislation; breaches the Constitution’s single subject matter restrictions; abrogates state constitutional protections for contracts; goes against the state takings clause; transgresses the Indiana “Due Course of Law” clause; violates principles of equal protection; and was enacted illegally, “seem[ing] simply to ‘appear’ at the last minute, with no discussion or debate, and no identification of its author or sponsor.”
The original complaint also cited alleged violations of the U.S. Constitution’s contracts, takings, and due process clauses.
The trial court determined Foundations had no standing to bring its challenge, but then went on to find the statute did not violate the Indiana Constitution.
Chief Judge John Baker, and judges Melissa Mattingly May and Elaine Becher Brown comprise the appellate panel hearing the matter.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Ind. App.Ct. Decisions

Environment - "Officials in Three States Pin Water Woes on Gas Drilling"

This lengthy story by Abrahm Lustgarten of ProPublica appears today in the Pittsburgh Post-Gazette (here) and the Albany Times-Union. Some quotes:

orma Fiorentino's drinking water well was a time bomb. For weeks, workers in her small northeastern Pennsylvania town had been plumbing natural gas deposits from a drilling rig a few hundred yards away. They cracked the earth and pumped in fluids to force the gas out. Somehow, stray gas worked into tiny crevasses in the rock, leaking upward into the aquifer and slipping quietly into Fiorentino's well. Then, according to the state's working theory, a motorized pump turned on in her well house, flicked a spark and caused a New Year's morning blast that tossed aside a concrete slab weighing several thousand-pounds.

Fiorentino wasn't home at the time, so it's difficult to know exactly what happened. But afterward state officials found methane, the largest component of natural gas, in her drinking water. If the fumes that built up in her well house had collected in her basement, the explosion could have killed her.

Dimock, the poverty-stricken enclave where Fiorentino lives, is ground zero for drilling the Marcellus Shale, a prized deposit of natural gas that is increasingly touted as one of the country's most abundant and cleanest alternatives to oil. The drilling here -- as in other parts of the nation -- is supposed to be a boon, bringing much-needed jobs and millions of dollars in royalties to cash-strapped homeowners.

But a string of documented cases of gas escaping into drinking water -- not just in Pennsylvania but across North America -- is raising new concerns about the hidden costs of this economic tide and strengthening arguments across the country that drilling can put drinking water at risk. * * *

As regulators in Ohio struggled to reconcile what was happening there, officials in Garfield County, Colo., were waiting for the results of the three-part, three-year study examining the connections between methane leaks and drilling there.

The report is significant because it is among the first to broadly analyze the ability of contaminants to migrate underground in drilling areas, and to find that such contamination was in fact occurring. It examined over 700 methane samples from 292 locations and found that methane, as well as wastewater from the drilling, was making its way into drinking water not as a result of a single accident but on a broader basis.

As the number of gas wells in the area increased from 200 to 1,300 in this decade, the methane levels in nearby water wells increased too. The study found that natural faults and fractures exist in underground formations in Colorado, and that it may be possible for contaminants to travel through them. * * *

When landmen from Cabot Oil & Gas came knocking on doors along the rutted dirt grade of Carter Road in Dimock, Pa., last year they sold a promise many residents in the farming community were eager to hear: Sign a gas lease and the land might finally pay for itself.

Many of Dimock's 1,300 residents had fallen on hard times. Approximately one in seven were out of work, and more than a few homes were perched on the precipice of foreclosure.

Cabot offered $25 an acre for the right to drill for five years, plus royalties when the gas started flowing. To outsiders it might seem a small amount, but it would make an immediate difference to people who owned fields but few other assets.

"It seemed like God's provenance," said Pat Farnelli, whose husband, a farmer, had taken a job as a night chef at a diner on the Interstate to pay one more month's mortgage. The day Cabot's man showed up -- with a wide-brim hat and a Houston drawl -- the Farnellis mistook him for a debt collector. "We really were having a rough time right then -- that day. We thought it was salvation. Any ray of hope here is a big deal."

That was more than a year ago, and since then Cabot -- which earned close to a billion dollars in revenue last year -- has drilled 20 wells and is producing $58 million worth of gas there annually. In its annual report Cabot bullishly called the Dimock field a once-in-a-lifetime "game changing event" [7] (PDF) for the company and announced it would drill 63 more wells there next year.

The wealth has begun trickling down to the residents of Dimock. A few will earn more than a half-million dollars this year, and bimonthly checks for $6,000 are not uncommon. Cabot and its contractors also support the local economy by hiring local labor and patronizing hotels and restaurants in nearby towns.

But the water contamination is forcing the people who live there to accept a difficult compromise.

"You have to evaluate which is more important, the money or the water," said a Dimock resident who declined to be named because he doesn't want to antagonize Cabot, which he says will pay him more than $600,000 this year for the wells on his property. "The economy is so tough. Suppose you could stop drilling -- no one wants Cabot to go away."

For some, though, the benefits can be easily erased.

Norma Fiorentino, whose well exploded on New Year's morning, got just $97 in royalties in February. Now a part of her monthly $646 Social Security check goes to buy water. "You can't buy a good well," she said.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Environment

Ind. Courts - Justice Sandra Day O'Connor speaks in South Bend and Fort Wayne

Here are some earlier ILB entries on the St. Joe County judges' election issue. This entry from April 2nd contained the news that Justice Sandra Day O'Connor, a proponent of merit selection of judges, would appear by St. Joe County on April 22nd, in a visit sponsored by the St. Joseph County Bar Association. Here are some stories about the visit.

Tom Coyle of the AP reported on April 23rd:

SOUTH BEND, Ind. -- Retired U.S. Supreme Court Justice Sandra Day O'Connor believes merit selection is the best way to choose judges and keep them independent.

O'Connor, speaking yesterday in South Bend, said it's hard for judges to remain impartial knowing their decisions will influence how long they keep their jobs.

She also told a crowd of about 500 people attending a St. Joseph County Bar Association luncheon that the money being spent by people running for the judiciary in states that don't have merit selection is causing people to trust judges less.

"I hope that lawmakers will be cautious and look at what an independent judiciary has meant to this nation," she said. "Our judges must be capable of staying above politics if they're going to serve the function of making impartial decisions."

O'Connor spoke hours before lawmakers in Indianapolis began work on versions of a bill passed by both the House and Senate that would make St. Joseph Superior Court judges popularly elected for the first time since 1973. * * *

State Rep. Craig Fry, D-Mishawaka, the author of the bill, questioned why people in Indiana should care about what O'Connor has to say, since she is from Arizona.

"This is an issue for the people of St. Joseph County," he said.

Supporters of electing judges argue it makes them more accountable to those they serve.

O'Connor said, however, that judges aren't as effective if they have to worry about whether their decisions will be popular. She also said that elections bring in other elements that harm the judiciary.

"The money and vitriol being put into judicial campaigns has reached new and dangerous levels," she said.

She pointed to a 2004 race for the Illinois Supreme Court in which the two opponents spent $9 million campaigning for office. The winner, Lloyd Karmeier, called it "obscene for a judicial race."

She also said people who oppose merit selection frequently cite "judicial tyranny" as a reason why judges should be elected. She dismissed that, saying: "Our forefathers would be surprised to find they were establishing a tyrannical system when they wrote the Constitution."

Jeff Parrott of the South Bend Tribune reported on April 23rd:

SOUTH BEND — Although she fears it might already be too late, retired U.S. Supreme Court Justice Sandra Day O'Connor came to town Wednesday to urge Indiana lawmakers to preserve St. Joseph County's merit selection system for picking trial court judges.

"The judiciary must be capable of operating above politics if it's going to serve its function of making impartial decisions about legal issues that come before them," O'Connor told a crowd of nearly 500, mostly attorneys, who packed the Palais Royale ballroom.

Her remarks came as an Indiana General Assembly conference committee negotiates details of a bill, passed last week by the Senate and in February by the House. The measure would, for the first time since 1973, require the county's Superior Court judges to be popularly elected in nonpartisan races. * * *

O'Connor, who served on the Supreme Court from 1981 to 2006, warned of the need to keep judges independent of the "passions" and "emotions" of voters, allowing them to follow the law in making decisions, even unpopular ones.

"If judges are subject to regular and competitive elections, they cannot help but be aware that if the public is not satisfied with the outcome of a particular case, it will hurt their chances of continuing to serve as judges," she said.

O'Connor also lamented the growing role that campaign finance is playing in judicial elections.

"We're at a dangerous moment in the history of our country," she said. "The amount of money being poured into judicial elections has skyrocketed in the last two decades."

As an example of the problems this can cause, O'Connor talked about a recent West Virginia Supreme Court case, in which a coal company executive contributed more than $3 million to the campaign of a state Supreme Court justice, and that justice then cast the deciding vote in favor of the coal company.

"It just does not look good, does it?" she said. "Why would a state want to subject itself to an influx of money into its courtrooms?"

But Rep. Craig Fry, D-Mishawaka, who authored the House version and is one of the conferees, was unimpressed by O'Connor's presence. He said O'Connor is a shining example of how all judges, whether they are appointed or elected, are political.

Mark Peterson of WNDU reported on April 22nd:

Typically, the opinions of U.S. Supreme Court Justices are the only ones that matter, but it remains to be seen how much weight will be carried by an opinion issued today.

Former U.S. Supreme Court Justice Sandra Day O’Connor came to South Bend to speak against a proposal to switch to elected judges in the St. Joseph Superior Court. * * *

O’Connor’s speech was sponsored by the St. Joseph County Bar Association.

“The runner is rounding third and headed toward home I guess at this point so we’ll see,” said South Bend Mayor Stephen Luecke who attended today’s program. “Obviously a lot of energy in the room today and I’m sure that there will be many people lobbying legislators on this issue.”

O’Connor’s visit perhaps lost some of its potential punch—at least outside the confines of the Palais Royale--because she banned all electronic recording devices. Her words won’t be heard far and wide. * * *“Well I hope it makes a difference,” said Indiana State Bar Association President William Jonas. “It is a voice among many voices.”

There are indications that today’s visit by Justice O’Connor won’t be the only attempt of local elected judge opponents to win friends in high places.

“We were hoping to defeat this in the House, we didn't. We were hoping to defeat this in the Senate, we didn't.
It’s in the conference committee—I doubt we'll defeat it there, so now it’s on to the governor. And the governor can veto it, and we're hoping he will,” said Chief Judge Michael Scopelitis of the St. Joseph Superior Court.

There’s now something about the bill that is bound to get the governor’s attention. Thanks to an amendment added by the senate, the bill is now costly.

H.B. 1491 no longer deals solely with judicial selection in St. Joseph County. It also calls for adding three additional judges to the Indiana Court of Appeals.

“I would suggest and I think there are a lot of people who believe, right now is not the time to spend three million dollars on a new court when the unemployment fund is bankrupt,” said Jonas.

“What's the purpose of this bill,” asked Judge Scopelitis. “It’s obviously just to remove merit selection from St. Joe County and it’s going to cost the state three to four million dollars to do it.”

In Indianapolis today the conference committee working on H.B. 1491 met for the first time this afternoon.

One change was made to the bill according to committee member Rep. Jackie Walorski.

The bill started out calling for non-partisan elections to seat superior court judges. The conference committee report now calls for partisan elections—meaning the judicial candidates would have to declare a party affiliation.

Kelly Soderlund of the Fort Wayne Journal Gazette took a totally different approach in her story on April 24th on O'Connor's appearance in Fort Wayne the following evening. Some quotes:

As soon as she stepped onstage, former Supreme Court Justice Sandra Day O’Connor was the boss.

O’Connor, 79, was greeted with a standing ovation Thursday night by the sold-out crowd at Indiana University-Purdue University Fort Wayne’s John and Ruth Rhinehart Music Center. Wearing a shimmering black and white blouse over black pants, the white-haired icon said a quick "thank you" to the crowd, then motioned for people to stop applauding.

"You have to sit down, because this is long," O’Connor said of her speech.

The former justice, who stepped down from the bench in 2006, made her third trip to Fort Wayne as part of IPFW’s Omnibus Lecture Series, the last for the school year. She drew the largest crowd of the year, forcing the university to administer tickets to the usual come-as-you-please lecture and creating a crowded parking lot and heavy traffic around the university.

O’Connor’s speech, titled "Advancing the Rights of Humanity," detailed a number of Supreme Court cases she believes have been momentous in the country’s history. She considers the hallmark of social change in the 20th century to be the increasing extension and protection of individual rights. * * *

After her speech, O’Connor took questions from the crowd, taking a no-nonsense approach and letting people know up front how she planned to handle the banter.

"I may not answer them, but you’re free to ask them," O’Connor said.

She lived up to her statement, staring stoically at a man who didn’t ask a question but only gushed about her and the Supreme Court.

"Well, that doesn’t sound like a question, but thank you," said O’Connor, who quickly moved on to the next questioner.

Another man asked whether lifetime appointments to the Supreme Court should be abolished, considering Justice Ruth Bader Ginsburg is battling pancreatic cancer and Chief Justice William Rehnquist died in 2005 while serving.

"Well, you’d have to amend the Constitution, and that’s very hard to do, so good luck," O’Connor said.

One woman asked what it felt like to be the deciding vote on a number of cases. O’Connor brushed off the notion of being the swing vote in 5-4 decisions.

"Well, it wasn’t just me," O’Connor said. "You could look at any of the five and say, ‘You made the deciding vote.’ "

When she was asked a question she didn’t know the answer to or didn’t have background on, O’Connor didn’t answer. One woman asked whether O’Connor knew when gays would have the same protection under the law as everybody else.

"Well, I don’t know," O’Connor shot back. "Do you?"

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Indiana Courts

Ind. Law - More on: "Farm interests oppose Indiana's puppy mill bill"

Updating this ILB entry from April 25th, Indianapolis Star columnist Matt Tully writes today:

Does everything at the Indiana Statehouse have to be difficult?

That's the thought I had last week as a simple issue -- the effort to stop the torture and abuse of puppies by cracking down on inhumane puppy mills -- ran into yet another wall of boneheaded Statehouse opposition. Because of that overheated resistance, the bill is now nowhere near as strong as it once was.
Advertisement

That's our legislature.

It's a body that found time earlier this year to name an official state pie but has had difficulty on agreeing that mistreating puppies is a bad thing.

Yes, we're in month four of the Great Puppy Mill Debate. * * *

The issue has made many foes look bad. The Daniels administration, for instance, took a PR hit when my colleague Bill Ruthhart uncovered a Department of Agriculture memo that suggested backers of the puppy mill were insidiously focused on the "abolition of animal agriculture" in Indiana. That tied for the Most Ridiculous Statement of the Week. * * *

The debate stems from the work of Rep. Linda Lawson, D-Hammond, who thinks Indiana should no longer sit by as abusive dog breeders flourish.

Shocking, isn't it?

Apparently so, based on the opposition Lawson has faced. Initially, she said, hobby breeders complained. Then the big dogs -- puppy mill operators -- objected.

"It's a booming industry," she said, explaining the operators' influence at the Statehouse.

Other pressure has come from farm interests, critics of animal-welfare groups and lawmakers such as Sen. Jean Leising, R-Oldenburg, who has the ridiculous fear that the law could be expanded to include livestock.

The Daniels administration tried to clean up damage left by its memo, insisting it supports a crackdown on puppy mills. Lt. Gov. Becky Skillman, who oversees the Agriculture Department, said Gov. Mitch Daniels was not pleased to be surprised by a story about the memo.

"There was never an intent to kill the bill," she said, adding that the department simply wanted to ensure it applied only to puppy mills. Most objections, she said, came from Senate Republicans.

Ultimately, lawmakers likely will pass a bill stripped of many good ideas, such as caps on how many dogs an operation can breed and how often they can breed them. But at least it would force mills to register and toughen the definition of animal cruelty, giving prosecutors the ability to go after operators.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Indiana Law

Ind. Gov't. - Where are we in the legislative session?

Three days remain. Here are some reports:

Eric Bradner of the Evansville Courier and Press writes under the heading: "Three days, two 'must' issues: Budget, jobless fund task lawmakers."

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story headed "Hoosier lawmakers race to finish work before session's end: Budget, funding for jobless are legislative priorities," that concludes:

Lawmakers have yet to decide how -- or if -- they will pass a plan to help the Indianapolis Capital Improvement Board, which operates the city's sports and convention facilities, deal with a funding shortfall.

They are considering plans to allow the city to keep more of the income and sales taxes generated downtown and to raise tourism-related taxes.

Also, legislators are debating a bill that would require doctors who perform abortions to have admitting privileges at area hospitals and grappling on whether the requirement should be extended to all doctors who do invasive procedures.

And tomorrow, Republicans and Democrats will determine whether they can find an agreement on legislation that would ban drivers younger than 18 from using cell phones or texting while driving.

But most lawmakers said last week that the only bills that were essential to pass were the budget and the unemployment fix, and both should be done without a special session.

"I think people want us to get done on time," said Sen. Connie Sipes, D-New Albany. "We need to be done by Wednesday."

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Indiana Government

Law - Is the Dawn Johnsen nomination in trouble?

Here is a list of earlier ILB entries on IU Law prof Dawn Johnsen's nomination to lead the Office of Legal Counsel.

To answer the question -- Is the Dawn Johnsen nomination in trouble? -- take a look at the results you pull up by typing "Dawn Johnsen" in the Google News Results box. (What is retrieved will of course, change day-to-day.)

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to General Law Related

Environment - "IDEM slow to resolve enviro permit issues"

Gitte Laasby, environmental reporter for the Gary Post-Tribune, has a lengthy story today on IDEM's permit review process and its results. Some points:

When IDEM Commissioner Thomas Easterly was appointed in 2005, a pile of backlogged permits were collecting dust on agency desks: Nearly 300 air permits and 276 water permits.

The permits had either not been issued or not been renewed and updated. Among them were some for Northwest Indiana's steel mills, which expired in the early 1990s. The federal Clean Water Act requires permits to be updated to meet stricter standards every five years. * * *

One strategy to get the permits done was Gov. Mitch Daniels implementing a performance management system. It ties performance to compensation so employees who perform satisfactorily get rewarded and those who don't won't get raises or will ultimately be fired.

Under the system, a permit writer will be told to process a certain number of permits in a year based on complexity. Whether the person meets his or her requirements affects the amount of raise they get.

"We have exceeds (expectations), meets and do-not-meets," Easterly explained. "So if you do not meet, you can go on a work improvement plan. So you have a period of time to bring that thing that you were deficient in back up to at least a 'meets' level. If you don't get there, then we start down a progressive defuncts path and you might leave the agency."

Many IDEM staff reacted negatively to the system, saying it forces section chiefs to find people who don't meet expectations even if those people have done what was asked of them. That's because the system determines 10 percent of employees must exceed while 10 percent fail. Part of the incentive to perform disappeared after the state eliminated raises for 2009.

Nevertheless, the strategy seemed to work. In 2005, IDEM spent the equivalent of more than 500,000 days total on issuing air permits. By the end of 2008, the number was down to about 70,000. In the water department, permit days were cut from 300,000 to 30,000. Customer service had improved for businesses seeking permits.

The backlog went from 297 air permits in 2005 to five today, and 276 water permits in 2005 to six currently.

Yet critics said the fact that some permits are still backlogged shows IDEM has not finished the job, leaving some legacy problems unaddressed.

Tom Anderson, executive director of Save the Dunes Council, said while all minor wastewater permits have now been issued, major permits remain. IDEM still has six major permits left to issue, five for steel mills in Northwest Indiana: ArcelorMittal Burns Harbor Indiana Harbor East and West, U.S. Steel Midwest and U.S. Steel Gary Works. IDEM conducted a hearing on the U.S. Steel Gary Works permit Dec. 11, 2007, but the permit has still not been issued.

"If you look at the major permits, we do not see a lot of change ... compared to what we saw years ago," he said. "In the last five years, there's been some work, but the (U.S. Steel) permit is still not issued."

Anderson said one reason is that IDEM has still not addressed an underlying problem that has persisted for well more than a decade: Laws passed by the General Assembly need to be fleshed out in rules that IDEM can apply when issuing permits.

For instance, IDEM needs to know under what circumstances a company can increase its discharges to Lake Michigan to be able to issue certain water permits. The lack of this "anti-degradation rule" was at the heart of contention over BP's wastewater permit in the summer of 2007, according to an independent report.

Anderson said administrators told environmentalists in 2002 that the lack of this rule was among the top explanations why permits had not been issued on time.

"We're seven years later, and one of the highlights was, this administration was going to tackle this anti-degradation rule," he said. "In the last five years, we haven't made much progress except to identify it as a problem ... They aren't resolved. We just have a longer list of issues."

IDEM spokeswoman Amy Hartsock said work groups failed to resolve the issue between 1997 and 2004. She said IDEM has been meeting with industry representatives and environmentalists since March 2008 to formulate a rule, but she couldn't say when it might be finished.

"We must follow the steps in the rulemaking process, and the rule's completion could take at least seven to 10 more months," she said in an e-mail.

Although everyone appears to agree that IDEM made progress by catching up on permits, not everyone agrees it's always a good idea to issue permits within the designated time frame. Critics say some permits are rushed at the expense of compliance with federal law.

"I can see the fact that more permits get issued, but simply issuing a permit that's not any more restrictive than it's been in the past is not any better," said Valparaiso attorney Kim Ferraro, who is executive director of the Legal Environmental Aid Foundation of Indiana. "Many of them go backwards."

As an example, she cited the U.S. Steel Gary Works wastewater permit that IDEM presented to the public in the fall of 2007. She said IDEM did not impose a new mercury limit, but gave the company five years to comply. She said IDEM also allowed U.S. Steel to increase its discharges of several pollutants. The Clean Water Act requires that permits get gradually stricter with the goal of "virtually eliminating" pollution.

Extending the same pollutant limits rather than ratcheting them down over time is like issuing the same permit, she said.

Easterly, in a presentation in his early days as IDEM commissioner, said permits should be "without unnecessary requirements."

Ann Alexander, a senior attorney with the Natural Resources Defense Council, said IDEM also runs the risk of legal challenges to its permits by rushing them through without enough attention to detail -- for instance in the case of BP's 6,400-page air permit including appendices for the Whiting expansion. While BP and IDEM?spent several months working out the details of the permit, the public had seven weeks to review it.

"I think that the BP permit they issued is pretty good evidence that haste makes waste. Government efficiency is a good thing, but it shouldn't be at the expense of compliance with the law," she said. "We repeatedly have found issues with the permits they're issuing. You're ultimately losing time if people feel it's inappropriate and that they need to challenge it. Ultimately, the way to make sure these permits are issued expeditiously is to make sure they're issued appropriately the first time."

From a side-bar:

Coming Monday:

Changes in enforcement at IDEM have led critics to ask whether IDEM is still fulfilling its purpose of protecting human health and the environment.

Today's and tomorrow's Post-Tribune stories will constitute an in-depth look at how IDEM has changed over the past four years.

Posted by Marcia Oddi on Sunday, April 26, 2009
Posted to Environment

Saturday, April 25, 2009

Ind. Law - Identity theft bill on way to Governor's desk

A press release (not yet available online, but when it is it will be here) from Attorney General Zoeller's office Friday commends the passage of HEA 1121, identity-theft protection legislation, authored by State Rep. Linda Lawson, D-Hammond, chairwoman of the House Judiciary Committee, and sponsored by Sen. Brent Steele, R-Bedford.

Posted by Marcia Oddi on Saturday, April 25, 2009
Posted to Indiana Law

Ind. Decisions - Two cases granted transfer April 23rd

The Clerk's transfer list should be availablesometime Monday. Meanwhile, the ILB has received notice of two transfers granted last Thursday, April 23rd, by the Supreme Court:

John D. Farris v. State -- 02A03-0805-PC-245. The issue in this 2-1 NFP opinion, issued Dec. 10, 2008, is whether defendant received ineffective assistance of counsel.

Ortho L. Lafayette v. State -- 45A03-0803-CR-118. The issue in this 2-1, three opinion decision (see ILB summary here - 2nd case) issued Jan. 23rd, is whether "the trial court committed reversible error in admitting the testimony of a woman [defendant] attempted to rape in 1997."

Posted by Marcia Oddi on Saturday, April 25, 2009
Posted to Indiana Transfer Lists

Ind. Courts - "Rolls-Royce faces sex-bias suit by two Indy managers"

Jeff Swiatek, business reporter for the Indianapolis Star, had a long story Thursday about the "Lawsuit of two Indy managers alleging unequal pay, promotions [that] aims to become class action." Some quotes:

Rolls-Royce Corp. in Indianapolis is fighting a touchy gender discrimination lawsuit by two high-level female managers who paint an unflattering picture of working in the jet engine maker's male-dominated culture.

In their federal lawsuit, Sally Randall and Rona Pepmeier say they have been paid less than their male counterparts, passed over for promotions and witnessed male executives putting down women.

The two refer to a corporate "code of silence" at Rolls-Royce that inhibits women from talking about being underpaid or not promoted, out of fear they will be fired if they do.

Randall, 59, and Pepmeier, 36, say they have been removed from bonus plans they previously were eligible for and no longer are on a career track for promotions since they filed their lawsuit three years ago.

Judge Jane Magnus-Stinson, who presides over the case in federal court in Indianapolis, has been asked to declare the lawsuit a class action, which would allow up to 537 female engineers and managers at the Indianapolis facility to join as plaintiffs.

If the class is approved, claims easily could run into the millions of dollars against Rolls-Royce, based on several years' worth of alleged underpayments to its female engineers and managers. The case involves only white- collar female employees at certain pay grades at Rolls-Royce's Indianapolis facility, which formerly was Allison Engine Co. * * *

In its latest filing this week, Rolls-Royce calls the gender discrimination charge "absurd," contending the company doesn't discriminate against women and actually promotes them faster than men. It criticizes as "fundamentally flawed" the findings of the plaintiffs' statistical expert, who found Rolls-Royce paid female engineers and managers 4 percent to 6 percent less than comparable men from 2004 to 2007 after adjusting for factors such as experience.

Pepmeier and Randall said they filed their lawsuit reluctantly after trying internally to get the company to deal with their allegations. * * *

The two women separately contacted the Indianapolis law firm of Betz & Associates, which put their claims into one lawsuit. "They're taking an enormous (career) risk doing this," said Sandra Blevins, their main attorney. * * *

The plaintiffs' expert is Richard Drogin, a partner in a California statistical consulting company who has been an expert witness in more than 250 court cases. Rolls-Royce has retained Bernard Siskin, who works in Philadelphia for another California consulting company and has 40 years of experience in statistics.

Passage of the Lilly Ledbetter Fair Pay Act by Congress, the first bill signed by President Barack Obama on taking office, is expected to aid plaintiffs in the case by making it easier to figure their potential monetary claims.

The case is 1:06-cv-00860-SEB-JMS , RANDALL et al vs ROLLS-ROYCE CORPORATION et al, Sarah Evans Barker, presiding, Jane Magnus-Stinson, referral. Date filed: 05/26/2006; Date of last update: 04/20/2009.

Here is the most recent document in the case, a 61-page "Defendants' Motion in Opposition to Plaintiffs' Motion to Maintain this Action as a Class Action and Consolidated Motion to Strike Plaintiffs' Expert."

Posted by Marcia Oddi on Saturday, April 25, 2009
Posted to Indiana Courts

Ind. Courts - "Hamilton Co. lawyers offer brief in U.S. strip-search case"

Updating this ILB entry from April 18th, on the oral argument before the SCOTUS in the case of Safford Unified School District, et al., v. Redding which took place April 21st, on April 23rd Chris Sikich of the Indianapolis Star had this story:

Two Hamilton County school district attorneys participated this week in a U.S. Supreme Court case about the legality of strip-searching students.

The court is weighing the appropriateness of a strip-search of a 13-year-old girl accused of having prescription-strength ibuprofen versus the need for school officials to look for drugs and weapons on campus, according to The Associated Press. Savana Redding was 13 when Safford, Ariz., Middle School officials ordered her to remove her clothes and shake out her underwear looking for pills, the AP reported.

David Day, attorney for Fishers-based Hamilton Southeastern Schools, and Seamus Boyce, attorney for Carmel Clay Schools, submitted a brief in the case and traveled to Washington, D.C., on behalf the National Association of School Boards.

Neither school district has had issues with strip-searches, said Doug Church, senior partner in a Noblesville law firm with Boyce and Day.

The two lawyers in the Church, Church, Hittle and Antrim law firm essentially asked the court to give school officials clear guidance on strip-searches, Church said. The hearing was Tuesday.

"A number of the questions and comments made during oral argument made it clear to us that they had read our brief and were engaged in our arguments," Church said.

Church, who also traveled to Washington, said it's the first time in the 129-year history of his firm that members provided a brief on a case before the Supreme Court.

"We were picked because of our fairly extensive and long-term representation of school corporations," Church said. "The key to the case is ultimately defining the extent to which school administrators can permissibly go in searching a student, including strip searches, when there is a reasonable suspicion that the student may have contraband on their person."

Here, from SCOTUSBlog WIKI, is a page containing links to the documents in the Safford case, including the Amicus Brief: "Brief for the National School Boards Association, and the American Association of School Administrators in Support of Petitioner ." Access it here.

And here is an analysis, by SCOTUSBlog's Lyle Denniston, of the oral argument.

Posted by Marcia Oddi on Saturday, April 25, 2009
Posted to Indiana Courts

Ind. Law - "Farm interests oppose Indiana's puppy mill bill"

Bill Ruthhart has this story Thursday in the Indianapolis Star, headlined "Farm interests oppose Indiana's puppy mill bill." Some quotes:

Indiana Department of Agriculture officials have been working behind the scenes to defeat legislation that would crack down on abusive dog breeders by trying to discredit one of the bill's leading supporters.

Their target: the Humane Society of the United States.

Although the department has taken no official position on the legislation, it acknowledges it has highlighted the Humane Society's history of opposition to confined farming practices, common in Indiana, especially in huge hog operations where animals are raised in close quarters.

A document the agency distributed to lawmakers alleges the Humane Society's goal was the "abolition of all animal agriculture," a notion the group rejected Wednesday. Critics of the bill worry that it could lead to new restrictions on livestock. * * *

Beyond the Agriculture Department's opposition, the Indiana Farm Bureau and many lawmakers representing rural swaths of Indiana have voiced concerns about the animal-welfare group's support for the bill.

Supporters of the legislation argue that the criticism of the group is being used to distract from the heart of the issue: regulating the dog breeding industry and putting a stop to the abuse seen in puppy mills.

"That is a scare tactic," said Rep. Linda Lawson, D-Hammond, author of the legislation. "This bill has nothing to do with farming." * * *

A leading foe of the legislation, Sen. Jean Leising, R-Oldenburg, said Modisett asked her to distribute the information about the Humane Society at a meeting last week of the legislature's "rural caucus" -- a collection of about 40 state lawmakers, Republicans and Democrats, who represent farming communities.

Leising told those lawmakers that Modisett and the Department of Agriculture oppose the bill. She fears that provisions requiring dogs to be given proper shelter, exercise and living conditions could be applied in the future to livestock and, thus, threaten the state's agriculture business.

"These bills easily could be expanded in the future to apply to livestock," Leising said. "This is a threat to animal agriculture, and I hope this doesn't become law." * * *

Lawson said the Department of Agriculture's involvement and the spread of misinformation about the Humane Society have jeopardized the bill's chances in the final days of the legislative session, which ends Wednesday.

State statute currently requires only that pets receive food and water.

"There is absolutely no reason for this fear, and I don't know how these people get this paranoid," Lawson said. "The only intention is to stop the horrible treatment and abuse of dogs in puppy mills. That's it."

She said the Department of Agriculture was out of line in urging lawmakers to oppose her legislation. In the four months of this year's session, she said, no one with the agency had contacted her with any concerns about the bill. * * *

HB 1468 has passed the House and the Senate and is headed to a conference committee, where lawmakers from each chamber will work to iron out differences on the bill.

Friday Ruthhart had this story in the Star. Some quotes:

No limit to the number of dogs an owner can breed. No state inspections of commercial breeding facilities. No restrictions on how often a dog can be bred.

Those are some of the concessions Rep. Linda Lawson, D-Hammond, made Thursday in an attempt to reach a compromise on a bill aimed at cracking down on abuse at Indiana's large-scale commercial breeding operations.

The changes seemed to please Sen. Brent Steele, a key lawmaker representing the Republican majority in the Senate.

"It's nice to see there was some movement," said Steele, R-Bedford. "I wasn't expecting that, quite frankly."

He had expected a debate on a provision in Lawson's bill that would limit a breeder to no more than 30 unspayed female dogs, which he called "nonsensical."

Instead, Lawson started a joint House-Senate conference committee meeting by dropping the cap and numerous other requirements for kennel conditions, state inspections and a limit of one litter per dog per year. Steele said he wanted to review the plan before pledging his support.

The committee's other two members -- Rep. Jackie Walorski, R-Elkhart, and Sen. Tim Lanane, D-Anderson -- applauded Lawson's latest plan. * * *

While there are no inspections or dog caps in the revised bill, the legislation would require commercial dog breeders to register with the state for the first time, allowing the attorney general's office to identify operators and ensure they pay taxes.

HB 1468 also strengthens the state's animal-cruelty statute and gives authorities the ability to shut down abusive puppy mills. Current state law requires only that dogs receive food and water, leaving prosecutors unable to bring charges against breeders despite evidence of abuse, torture and killing of dogs.

Anne Sterling, Indiana director for the Humane Society, said she was satisfied with Lawson's proposed deal -- even though she'd like to see a stronger bill.

Lawson said she was more optimistic about a bill passing the General Assembly before Wednesday's session deadline, but she warned that there are still some lawmakers who will strive to kill the legislation.

The bill is HB 1468. No conference committee report has been filed, as of this writing, so we cannot see the language of the proposed compromise.

Posted by Marcia Oddi on Saturday, April 25, 2009
Posted to Indiana Law

Friday, April 24, 2009

Ind. Decisions - Supreme Court issues one today

In Term. of Parent-Child Rel. of G.Y.; R.Y. v. IDCS, a 14-page, 4-1 opinion, Justice Sullivan writes:

The trial court terminated R.Y.'s parental rights on grounds that the conditions which resulted in her son G.Y.'s removal will not be remedied and that termination is in G.Y.'s best interests. The Court of Appeals affirmed. Concluding that the evidence does not clearly and convincingly demonstrate that R.Y.‟s parental rights should be terminated, we reverse the judgment of the trial court. * * *

Boehm, Justice [whose dissent begins]

I respectfully dissent and agree with the Court of Appeals that the trial court's judgment terminating the mother's parental rights should be affirmed.

Posted by Marcia Oddi on Friday, April 24, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

Details to follow ...

For publication opinions today (4):

Joseph Jaskolski, et al. v. Rick and Anna Daniels

Drew Dickerson and Donna Dickerson v. Donna Strand and Gloria German

Steuben Lakes Regional Waste District v. Lyndon Tucker and Kathleen Tucker

Samuel E. Thayer, Jr. v. State of Indiana

NFP civil opinions today (7):

Jeannie J. Willis v. Review Board, and Value Village, Inc. (NFP)

Indiana Pesticide Review Board v. Black Diamond Pest & Termite Control, Inc., et al (NFP)

M.H. v. L.H. (NFP)

M.A. v. J.A. (NFP)

Barbara Staples v. Sylvester Staples (NFP)

Southern Enterprises v. Review Board, and Perry D. McPherson (NFP)

William Lloyd v. Mark Sevier (NFP)

NFP criminal opinions today (10):

State of Indiana v. Jason L. Patton (NFP)

Roshene Hinkle v. State of Indiana (NFP)

Daryl Hurt v. State of Indiana (NFP)

Steven E. Miles v. State of Indiana (NFP)

Rick L. Robinson v. State of Indiana (NFP)

James Harness, IV v. State of Indiana (NFP)

Oscar Todd Hollingsworth v. State of Indiana (NFP)

Steven McIntyre v. State of Indiana (NFP)

Maurice McGee v. State of Indiana (NFP)

Anthony L. Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 24, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - US News Law school rankings out, now officially

Here now are the official US News rankings. The numbers reported earlier were correct.

Here is the location to check rankings for laws specialties such as legal writing and part-time law. IU-Indianapolis ranked 9th in the former and 21st (out of 87) in the latter.

Here are Indiana's four law schools, side-by-side.

Posted by Marcia Oddi on Friday, April 24, 2009
Posted to Indiana Law

Thursday, April 23, 2009

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

For publication opinions today (1):

In Joshua Michael Upton v. State of Indiana , a 12-page opinion, Judge Brown writes:

Joshua Michael Upton appeals his sentences for two counts of child molesting as class A felonies and three counts of child molesting as class B felonies. Upton raises five issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion in sentencing him;
II. Whether Upton‟s sentence is inappropriate in light of the nature of the offense and the character of the offender; and
III. Whether the trial court‟s application of the 2008 credit restricted felons statute violated the constitutional prohibition against ex post facto laws.
We affirm in part, reverse in part, and remand. * * *

III. The final issue is whether the trial court's application of the 2008 credit restricted felons statute violated the constitutional prohibition of ex post facto laws. The trial court applied the newly enacted credit restricted felon statute to Upton‟s credit time. The credit restricted felon statute was enacted through Pub. L. 80-2008, Sec. 6, which was effective on July 1, 2008 and applied “only to persons convicted after June 30, 2008.” * * *

Upton argues that application of the credit restricted felon statutes to him violated the constitutional prohibition of ex post facto laws. * * *

“To fall within the ex post facto prohibition, a law must be retrospective – that is, 'it must apply to events occurring before its enactment' – and it 'must disadvantage the offender affected by it.'" * * *

Upton argues that, at the time he committed his offenses, he was eligible for Class I credit time, which would have allowed him to receive one day of credit time for each day he was confined awaiting sentencing, or Class II credit time, which would have allowed him to receive one day of credit time for every two days he was confined awaiting sentencing. Ind. Code § 35-50-6-3. However, under the credit restricted felon statute, he is only entitled to one day of credit for every six days confined awaiting sentencing. We addressed a similar argument in the context of educational credit time in Paul * * *

Based upon Paul and Weaver, the State concedes that Upton is correct, and the application of the credit restricted felon statute to him is an ex post facto violation. Consequently, we reverse the trial court's determination of Upton's credit time classification and remand for proceedings consistent with this opinion.

For the foregoing reasons, we affirm Upton's sentence for two counts of child molesting as class A felonies and three counts of child molesting as class B felonies, but we reverse the trial court's credit time classification of Upton and remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Jennifer J. Danielewicz v. Review Board, and Mickey's Linen & Towel Supply, Inc. (NFP) - " Danielewicz did not establish that she voluntarily terminated her employment for good cause."

In the Matter of the Supervised Estate of George A. Curts; Christine Ruby v. James F. Scarpone, et al (NFP) - "George A. Curts (“Curts”) died testate, leaving his daughter Christine N. Ruby (“Ruby”) as his sole beneficiary. James F. Scarpone (“Scarpone”) served as the initial personal representative, but was removed at Ruby’s request. The trial court awarded him a total of $50,000 for his attorney fees and for his services as personal representative. Ruby, who succeeded Scarpone as personal representative, filed a motion to correct error, arguing, inter alia, that the award was too great. She now appeals from the denial of her motion to correct error. We affirm."

NFP criminal opinions today (3):

Glenn L. Hepp v. State of Indiana (NFP)

Dewayne Washington v. State of Indiana (NFP)

David Cooper v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 23, 2009
Posted to Ind. App.Ct. Decisions

Wednesday, April 22, 2009

Ind. Courts - "Justice O’Connor argues against electing judges in St. Joseph County"

Jeff Parrot reports this afternoon in the South Bend Tribune:

SOUTH BEND — Although she fears it might already be too late, retired U.S. Supreme Court justice Sandra Day O’Connor today came to town to urge Indiana lawmakers to preserve St. Joseph County’s merit selection system for picking trial court judges.

"The judiciary must be capable of operating above politics if it’s going to serve its function of making impartial decisions about legal issues that come before them," O’Connor told a crowd of nearly 500, mostly attorneys, who packed the Palais Royale ballroom.

Her remarks came as an Indiana General Assembly conference committee negotiates details of a bill, passed last week by the Senate and in February by the House, that would, for the first time since 1973, require the county’s Superior Court judges to be popularly elected.

The bill is HB 1491; see most recent ILB entry here.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Courts

Ind. Law - More on: US News Law school rankings out (but not officially)

Updating this ILB entry from April 20th, Above the Law today has confirmation, and more information.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Law

Ind. Gov't. - More on: It's the end of the session again, and no way to track what is going on

See Jim Shella's post this afternoon, headed "Open Government (not)."

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Kathryn Annis v. Richard Joel Annis (NFP), a 10-page, two-opinion decision, the issue is whether the trial court erred in dismissing the petition for spousal maintenance. Judge Bailey writes:

Here, there is no question that the dissolution court has personal jurisdiction over the parties. As for subject matter jurisdiction, a dissolution court obviously has jurisdiction over matters of divorce, including the provision of spousal maintenance and the interpretation of a property settlement agreement. See Ind. Code § 31-15-7-2; Shorter, 851 N.E.2d at 383. Therefore, the dissolution court had the continuing authority to rule on Kathryn’s petition for spousal maintenance and interpret the PSA that was incorporated into the Decree of Dissolution.

So what is the meaning of the PSA provision declaring that “the court retains continuing jurisdiction over the issue of possible maintenance?” Essentially, the parties agreed that Kathryn’s potential claim for spousal maintenance, based on her medical conditions rendering her incapacitated for purposes of Indiana Code Section 31-11-11.5-9(c), would remain undecided. This clause effectively delayed the applicability of the doctrine of claim preclusion. * * *

Recognizing that her medical conditions could change, the parties agreed to subject themselves to the authority of the court at a later time for its determination of spousal maintenance if Kathryn’s MS incapacitated her. Thus, due to this provision (“Incapacity Provision”) in the PSA, any petition for spousal maintenance during the provision’s operative time would not be barred by claim preclusion because the parties agreed to leave the issue undecided. So the question before us is when does the operation of this provision end, if ever.

The dissolution court order concluded implicitly that the PSA was unambiguous by its interpretation that any obligation for Richard to pay Kathryn maintenance ended on August 8, 2001, when the parties’ youngest child reached the age of twenty-one. We conclude that, while this interpretation is valid, the PSA is ambiguous because it is subject to another reasonable interpretation that would leave open indefinitely the possibility of court-ordered incapacity maintenance. The dissolution court only heard arguments regarding the interpretation of the PSA language. No evidence was admitted, so there is no extrinsic evidence before us to aid in determining the intent of the parties at the time of the contract. Accordingly, we reverse and remand to the dissolution court for further proceedings. Reversed and remanded.

[Judge Mathias' concurring] I respectfully concur with my colleagues in this case. I write briefly to emphasize the obvious: this is an extremely close call in an extremely difficult case. The nature of Wife's illness is the only thing that allows the portion of the agreement conferring continuing jurisdiction on the court to become ambiguous and subject to additional interpretive evidence.

NFP criminal opinions today (9):

Larry Cosby v. State of Indiana (NFP)

Mariam Lakhani v. State of Indiana (NFP)

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

Johnnie Ferguson v. State of Indiana (NFP)

Keith Gober v. State of Indiana (NFP)

Trevor D. Hardy v. State of Indiana (NFP)

Brandon Green v. State of Indiana (NFP)

Joseph Monegain v. State of Indiana (NFP)

Roosevelt Glenn v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "7th Circuit Nominee To Go Before Senate Judiciary Again"

CQ Politics' Keith Perine reports that David Hamilton will make a second appearance before the Senate Judiciary Committee on April 29th. Recall that the Republicans boycotted the April 1st meeting.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Courts

Ind. Courts - More on "Monroe County public defender’s office faces allegations"

Updating this ILB entry from yesterday, Andy Graham of the Bloomington Herald-Times has this follow-up story ($$) today. Some quotes:

The Monroe County Public Defender Board plans more oversight regarding the reporting of attorney case loads to the state by the Monroe County Public Defender Office.

During a public meeting Tuesday at the Justice Building, board members took no official action but said the office had acknowledged some case load reporting discrepancies occurred in recent years.

Members agreed with the office’s contention that the mistakes were inadvertent and had not compromised the office’s compliance status with a state reimbursement funding program. * * *

In addition to pledging “more pro-active” oversight of the case load reporting process, the board asked county chief public defender Michael Hunt to research and recommend an appropriate policy and procedure manual for his office, which board member Kitty Liell said the governing ordinance required.

Liell said the board was grateful for the feedback it had received during its investigative process, including that from deputy public defender Jo Hamilton and her husband J. Ogden Hamilton, who had through their own investigations revealed case load reporting mistakes.

“I feel every person has been entirely cooperative with us, has been open and honest with the board, and we want to say that the assistance of the Hamiltons is greatly appreciated by the board,” Liell said. “It was through their efforts that the board has learned more about the process and was able to identify mistakes.”

IU professor of law Pat Baude, who joined the board this year, said getting a good handle on aspects of the issue such as the state’s Standard J governing guidelines was challenging. But he was satisfied that the county public defender office had acted honestly and in good faith in trying to comply with those guidelines.

“We’ve taken this very seriously, because any loss of state funding would be catastrophic, and I tried to come to grips with the state’s Standard J guidelines — written partly in Egyptian hieroglyphics, I think,” Baude said. “And different county judiciaries count and categorize cases in different ways. But we’ve had five executive sessions and, after repeatedly sifting through everything and talking to all the parties, it became clear to me that none of these mistakes involve deceit, dishonesty, bias or efforts to minimize.

“The mistakes were neither huge in number nor evil in intent.”

One of them, he said, was caused by a flawed state form that kept office manager Debbie Outcalt from making corrections and caused repeated incorrect numbers to be reported.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Courts

Ind. Gov't. - It's the end of the session again, and no way to track what is going on

I wrote to another attorney this morning:

Every year I hate this part of the session when there is no way for most people to know what is going on!

The response I received back, from this fellow who knows as much about the General Assembly as anyone:

Most people?! How about all people, including all but about 10 or 12 of the 150 legislators. Most members of the General Assembly are effectively clueless, save the negotiators on the key bills.

Maybe, in this era of transparent government, it is time to start thinking about how to change the information blackout during the final days of each session . . .

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Government

Ind. Gov't. - Governor's ability to cut budget challenged

Lesley Stedman Weidenbener reports today in the Louisville Courier Journal:

INDIANAPOLIS – Some Democrats want to limit Gov. Mitch Daniels' ability to cut funding that lawmakers designate for universities, public broadcasting or grants and give him authority only over spending within his departments.

Senate Minority Leader Vi Simpson, D-Bloomington, is seeking to remove language from the state budget that gives the governor wide latitude to "withhold allotments of any or all appropriations."

That language has been included in budgets for decades, and Daniels used it this year to cut more than $700 million in spending to cope with declining revenues.

"Without the tool, and a governor willing to use it, Indiana would be broke today like 40-some other states," said Jane Jankowski, Daniels' press secretary.

But Simpson, who was on the Appropriations Committee before taking her current post, said Daniels has abused the authority, cutting funds to groups that depended on the money to make ends meet.

His cuts included funding for local tourism grants, public broadcasting, employee raises, and university operating funds and building projects.

Simpson said she believes those cuts were more about philosophy than fiscal responsibility, something she believes is inappropriate.

"We can still give him some flexibility if he wants to make cuts in the agencies that are responsible to him in the executive branch," she said. "It's a whole other thing to make arbitrary cuts with no warning to agencies outside of the state governor which are dependent and relying on the appropriations we made."

The language also makes the budget bill simply a recommendation rather than a "real document," she said.

Simpson's caucus plans to make the language a key issue as lawmakers begin negotiations on the final budget. Fiscal leaders are scheduled to meet at 10 a.m. today for a conference committee on House Bill 1001, which includes the budget. * * *

Senate Appropriations Chairman Luke Kenley, R-Noblesville, said the cuts the governor made this year are precisely the reason the language exists. Without it, lawmakers would have to come into special session to adjust the budget anytime revenues are down, he said.

"We do have a citizen legislature" that works only a few months each year, Kenley said. "Does this mean if we get into trouble that the legislature is supposed to sit here all year long and review these things?"

Past governors have used the tool, Kenley said, including the late Gov. Frank O'Bannon, a Democrat who had to slash state spending when revenues dropped during his second term. Democrats didn't complain then, Kenley said.

Still, he said he understands Democrats' concerns, especially because Daniels "is known to be an aggressive guy about how's he going to manage his resources."

"This is going to be an issue" in negotiations, he said. "We'll have to review it."

Indiana is one of just six states where the governor doesn't have a line-item veto, so Daniels has no authority to cut items from the budget before he signs it into law. He can only withhold the funds once the budget has become law.

So what is this language? Check here in the last biennial budget, HB 1001 from 2007, starting at SECTION 26 on p. 108. It is part of the budget "boilerplate":

SECTION 26. [EFFECTIVE JULY 1, 2007]
The governor of the state of Indiana is solely authorized to accept on behalf of
the state any and all federal funds available to the state of Indiana. Federal funds
received under this SECTION are appropriated for purposes specified by the federal
government, subject to allotment by the budget agency. The provisions of this SECTION
and all other SECTIONS concerning the acceptance, disbursement, review, and approval
of any grant, loan, or gift made by the federal government or any other source to
the state or its agencies and political subdivisions shall apply, notwithstanding
any other law.

SECTION 27. [EFFECTIVE JULY 1, 2007]
Federal funds received as revenue by a state agency or department are not available
to the agency or department for expenditure until allotment has been made by the
budget agency under IC 4-12-1-12(d).

SECTION 30. [EFFECTIVE JULY 1, 2007]
Subject to SECTION 25 of this act as it relates to the budget committee, the budget
agency with the approval of the governor may withhold allotments of any or all appropriations
contained in this act for the 2007-2009 biennium, if it is considered necessary to
do so in order to prevent a deficit financial situation.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Government

Ind. Courts - "Lake County criminal judge seeks federal judgeship"

From the NWI Times, a story by Dan Hinkel:

Lake Criminal Court Judge Salvador Vasquez has told U.S. Sen. Evan Bayh he wants to move into a federal judgeship.

Vasquez said he is qualified for a seat on the federal bench in Indiana's northern district.

"I just think I have the experience necessary to make the move to the federal bench," Vasquez said.

One post in the northern district is listed as vacant on the U.S. Department of Justice Web site that tracks judicial openings. That seat currently belongs to Senior Judge Allen Sharp, who moved into semi-retirement when he took senior status at the South Bend federal courthouse.

By tradition, officials in the Obama Administration would consult Bayh, D-Ind., office before nominating.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Courts

Law - "Door still revolving between Capitol, lobbyists"

Fredreka Schouten reports in USA TODAY in a detailed story that begins:

WASHINGTON — Despite congressional pledges to stop the revolving door between Capitol Hill and the lobbying industry, 16 of the 62 lawmakers who left Congress last year have landed jobs with groups that seek to influence policymakers, a USA TODAY analysis has found.

Former House members are barred from lobbying their former colleagues for a year after leaving office and former senators must wait two years. But nothing prohibits former lawmakers from immediately starting to advise clients on how to navigate the congressional process, having contacts with administration officials, or working as a state lobbyist.

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to General Law Related

Ind. Law - More on: "Updated feticide bill returns to state Senate"

Updating this ILB entry from April 7th, Bill Ruthhart reports today in the Indianapolis Star that the Senate has concurred in the House amendments to SB 236. From the story:

SB 236 would boost feticide to a Class B felony, increasing the penalty to six to 20 years in prison from the previous two to eight years.

The legislation also would allow prosecutors to press for a sentence enhancement in a murder or attempted murder case when a pregnant woman is the victim. A defendant would not have to know the woman was pregnant or intend to harm an unborn child for prosecutors to seek a longer term.

The extra prison time would be tacked onto a defendant's primary sentence, not served concurrently. * * *

With help from Reps. Mike Murphy, R-Indianapolis, and Linda Lawson, D-Hammond, [Sen. James] Merritt was able to avoid clashes between reproductive rights advocates and abortion foes, which had caused the legislation to stall in the past.

Rather than renew the debate about when life begins by trying to pass legislation that would have lowered the seven-month threshold for murder charges, lawmakers simply boosted the penalties in the state's feticide law.

"Planned Parenthood and Right to Life worked with us and signed off on this," Merritt said. "Everyone worked toward the same goal, and I think it's a real achievement."

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Indiana Law

Environment - "Indiana ranks near bottom in environmental issues"

The devastating front-page, Earth Day story in the Indianapolis Star is reported by Mark Alesia, Heather Gillers and Tim Evans. The subhead: "Reams of data, 1 conclusion for Indiana: At the bottom." From the lengthy story:

Environmental comparisons can be difficult because of oceans of complex data generated and evaluated in different ways. But it seems that no matter who is compiling the survey -- or what aspect of the environment is being measured -- Indiana consistently ranks near the bottom. Some examples:

» Forbes.com ranked Indiana 49th out of 50 states in its 2007 "America's Greenest States" survey. Only West Virginia fared worse.

» Indianapolis ranked 99th out of 100 metropolitan areas per capita in a 2008 Brookings Institution report on environmentally harmful carbon emissions from transportation and energy. Only Lexington, Ky., was worse.

» According to the U.S. Environmental Protection Agency, Indiana had the highest amount of toxic discharges to bodies of water among all states in 2007 -- more than 11 percent of the nation's total.

» BioCycle, a composting and recycling publication, reported in December that Indiana produces more garbage per capita than any other state in the nation.

Advocates for the environment say a strong business lobby and a political culture that values jobs over the environment has led to a loose regulatory climate. State officials, however, insist they are doing a good job despite the mountain of evidence that suggests otherwise. * * *

Indiana's top environmental officer, Thomas W. Easterly, commissioner of the Indiana Department of Environmental Management, said he doesn't put much stock in such rankings because of outdated numbers and murky methodology.

But it's hard to dismiss the volume of evidence -- and some say it's easy to understand why Indiana struggles to go green.

Hoosiers for decades have looked suspiciously at environmental regulation, viewing it as an overstated liberal concern that will lead to tax increases and lost jobs.

So the tendency has been to choose business-friendly options.

One important example is coal. Unlike neighboring Illinois, Michigan, Ohio and 27 other states, Indiana does not have a state policy that requires electricity providers to obtain a minimum percentage of their power from renewable energy resources like wind and solar.

Absent any such requirement, Indiana relies on coal to generate more than 90 percent of the state's electricity. Coal is lamented by environmentalists. But it's abundant and cheap, and thus good for business.

"A critically important part of our economic development and competitiveness are our low electric rates," said John Clark, the former director of Indiana's Office of Energy Development under Gov. Mitch Daniels.

State Rep. Ryan Dvorak, D-South Bend, blames much of Indiana's environmental woes on "special-interest politics."

"The state has a very strong coalition of business and manufacturing groups that works very heavily on environmental issues, and they have a bloc of votes that make it difficult to enact any reforms," said Dvorak, chairman of the House Environmental Affairs Committee.

He also pointed to "a very loose regulatory environment" at IDEM, whose responsibilities include issuing permits to businesses for air emissions and wastewater discharges.

Case in point, environmental organizations argue, is IDEM's handling of permits in 2007 for an expansion of the BP Refinery in Whiting.

Howard A. Learner, executive director of the Environmental Law and Policy Center, the Midwest's leading environmental advocacy organization, said IDEM missed an opportunity to push for stronger emission requirements.

"Indiana is moving completely out of step from where the rest of the world is going," Lerner said of the state's approach to the expansion project.

"At best, IDEM has missed opportunities for environmental progress. In our opinion, in some cases, IDEM has not done its job adequately in terms of protecting the environment. If Indiana doesn't step up, it is going to lose growth, development and people to other places."

Posted by Marcia Oddi on Wednesday, April 22, 2009
Posted to Environment

Tuesday, April 21, 2009

Courts - Still more on "What Constitutional Rights Should Schoolchildren Have?"

Updating this ILB entry from April 18th, today the Supreme Court heard arguments in the case of Safford Unified School District, et al., v. Redding. Howard Bashman of How Appealing has collected links to some of the resulting reports. Also here.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Courts in general

Ind. Decisions - Appeal withdrawn by Terre Haute Tribune-Star in $1.5 million defamation case

Updating earlier ILB entries, including this most recent one from Nov. 24, 2008, which included this quote from a press release of the Society of Professional Journalists:

On July 25, 2008, an Indiana jury awarded Clay County Deputy Sheriff Jeff Maynard $1.5 million, reasoning the Terre Haute Tribune-Star libeled the officer by printing an article that reported misconduct allegations a woman had made against him. The allegations were later found to be false.

The ILB has learned today that the case, for which a notice of appeal had been filed Nov. 7, 2008:

Case Number: 77 A 01 - 0810 - CV - 00479
TRIBUNE-STAR PUBLISHING CO. INC. V. JEFF MAYNARD

now appears to have settled. A February 12, 2009 entry states:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
1. APPELLANT'S MOTION TO DISMISS APPEAL IS GRANTED, AND THIS APPEAL IS HEREBY DISMISSED WITH PREJUDICE.
2. THE CLERK OF THIS COURT IS DIRECTED TO CORRECT THE ON-LINE DOCKET TO SHOW THAT TRIBUNE-STAR PUBLISHING COMPANY, INC. IS THE APPELLANT AND THAT JEFF MAYNARD IS THE APPELLEE.
JOHN G. BAKER, CHIEF JUDGE KM

The ILB has not seen information about a settlement elsewhere.

For additional background, see this Sept. 4, 2008 story by William Ketter headlined "Journalists should fear impact of Terre Haute libel verdict," from the CNHI News Service. The long article concluded:

The outcome shocked media law experts. It should also send an immediate chill through the news community because the stories at issue were accurate reports of a sworn citizen’s affidavit claiming police misconduct. And a sworn affidavit is supposed to be libel-proof under First Amendment free press and free speech protections.

There’s no question libel law is complex, and often juries do not understand the actual malice standard that applies to public officials suing for defamation or the types of documents – even when they contain wrong information -- considered privileged from litigation when reported by the press.

That’s why the majority of jury libel judgments are reversed or substantially reduced on appeal.

If that doesn’t happen in this case, the media in Indiana and elsewhere will be forced toward timidity and away from the kind of journalism that holds public officials accountable and exposes wrongdoing.

A Sept. 3, 2008 article in Editor & Publisher concluded:

The lawsuit has energized the Tribune-Star and its Community Newspaper Holdings Inc. (CNHI) owner -- both of whom have been extremely supportive of the newsroom, Editor Jones says -- as well as newspapers from around the state.

This isn’t just a press issue, Bob Zaltsberg told readers of The Herald-Times in Bloomington, Ind., in a column last Sunday.

“Editors and free press advocates are on edge because the verdict could chill citizens from alleging misconduct against public officials, and newspapers from reporting on any such allegations or even criminal investigations,” he wrote. “It could weaken the news media’s duty to be a watchdog over people in powerful positions.”

The Tribune-Star’s Jones said he understands that a case in Terre Haute might stay below the radar of the national, or even Indiana press. “But this (case),” he added, “really has some very interesting subplots that would make editors sort of scratch their heads about what happening.”

And not just in Indiana.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Monroe County public defender’s office faces allegations"

Andy Graham of the Bloomington Herald-Times has this story ($$) today. Some quotes:

The Monroe County Public Defender’s Office has made a series of mistakes reporting caseloads to the state, but the misstated reports do not mean the office is out of compliance with a state funding program, a spokeswoman for the Indiana Public Defender’s Commission says.

Allegations from a worker in the county office about how caseloads have been reported led to four executive sessions by the Monroe County Public Defender Board, which has scheduled another private session for today. That meeting will be followed by a public meeting in which the allegations and the state’s opinion are expected to be discussed.

The executive session, which is not open to the public, is scheduled for 2 p.m. and the public meeting at 2:15 in the Justice Building’s conference room.

The county board might draw its own conclusions or take actions of its own, but it’s clear the state has no problem with the county public defender office.

Deborah Neal, the state commission’s legal counsel, was unequivocal in her comments over the phone Monday morning.

“Monroe County is in compliance and always has been,” Neal said. “If we ever had a problem, it was immediately corrected. We believe they have a well-run system and we’re glad they’re part of the program.”

Since 2001, Monroe County has participated in a program that sends significant state funding flowing into county public defender offices that keep caseloads below a set maximum amount for their attorneys.

The program’s goal is to ensure an adequate number of public defenders who individually have the requisite time and energy to properly serve each indigent client.

Funding from the program helped Monroe County add six public defenders and gradually raised chief public defender Michael Hunt’s salary to about $120,000 to make it commensurate with the county prosecutor’s salary. The Monroe County office got $382,000 in overall state reimbursement funding in 2007, the last year for which updated figures were available.

But continuation of state funding is tied to compliance with prescribed caseload levels and, late in 2006, deputy public defender Jo Hamilton saw her caseload report as sent to the state by office manager Debbie Outcalt and felt 21 major felonies were missing. She and husband J. Ogden Hamilton, executive director of the Bloomington-based international educational honor society Pi Lambda Theta, then checked the reports on file in the office computer system and found more errors in the rolling, quarterly reports. Ogden Hamilton alleges that attempts to call attention to the errors prompted retribution in the office.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Indiana Courts

Courts - More on: Big name lawyers in Helio Castroneves federal tax evasion case

Updating this ILB entry from April 4th, The Blog of Legal Times: has this entry today headed "Bob Bennett, Roy Black Team Up—And Win." Check it out.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Terence E. Brennan, Jr. a/k/a Terry Brennan, and Burt Ins. Co. v. Patricia Hall and Harry Hall , an 11-page opinion, Judge Barnes writes:

Terence Brennan and Burt Insurance Agency (“Burt”) appeal a jury’s verdict in favor of Patricia and Harry Hall. We affirm.

The sole restated issue is whether the jury properly found Brennan and Burt liable for negligently failing to procure insurance for the Halls. * * *

Here, Patricia did provide accurate information to Brennan, but Brennan failed to incorporate that information into the application, which led to the revocation of the policy and denial of coverage for the Halls’ dog-bite claim. The jury as fact-finder was entitled to conclude that the manner in which Brennan handled the application process was a breach of his duty to the Halls to procure the insurance they requested and negligent.

Brennan and Burt also contend that they should not be liable to the Halls because, in any event, Buckeye would not have issued a homeowner’s policy to them if the information regarding their dogs had been included on the application. This goes directly to the heart of the Halls’ complaint against Brennan and Burt. Patricia specifically requested coverage for their dogs; the policy Brennan selected did not provide such coverage. Brennan testified that he could have acquired such a policy from another company, but he did not. That in itself would appear to be a breach of his duty to procure insurance specifically requested by Patricia. Additionally, if there was no policy that he could have obtained for the Halls that would have covered their dogs, he was obligated to inform them of that fact.

There is sufficient evidence from which the jury could have concluded that Brennan’s actions amounted to a breach of his duty to procure insurance requested by the Halls. Such breach led to the Halls being damaged because they lack coverage for the dog bite claim. To the extent Patricia herself might share some of the blame for the inaccurate application and subsequent denial of coverage, we agree with the Roe court that it would be more appropriate to assess her fault in accordance with the Comparative Fault Act, just as would be the case in another ordinary negligence action; it is not a basis for completely barring the Halls’ action. Brennan and Burt, however, did not make such an argument before the trial court.

The jury’s verdict in favor of the Halls, finding that Brennan and by extension Burt negligently breached their duty to procure insurance for the Halls, is supported by the evidence. We affirm.

NFP civil opinions today (3):

Roger Curtsinger v. Don Roby (NFP) - "The trial court chose to credit Roby’s testimony that the “rent pay down” was partially applied to each month, rather than to pay for the entire first and last month. We will not reweigh the evidence to conclude that Curtsinger owes nothing for the last month."

Angela Foster v. Estate of Darlene Shoemaker, Deceased, James Shoemaker, Personal representative (NFP) - "Angela Foster (“Foster”) appeals an order of the Benton Circuit Court refusing to dismiss probate proceedings initiated by James Shoemaker (“Shoemaker”) as personal representative of the intestate estate of decedent Darlene Shoemaker (“the Estate”), and directing Foster to return checking account funds to the Estate. We affirm."

Eric C. Lewis v. Robert T. Smith and Robert R. Smith (NFP) - "The trial court erred in not applying the Comparative Fault Act to this two-car collision. Reversed and remanded with instructions." A concurring opinion notes: "There are simply situations in which the negligence of two parties is so identical that neither should collect damages, and the statute as written does not allow for such situations."

NFP criminal opinions today (11):

Willie C. Adams v. State of Indiana (NFP)

Frank J. Guajardo v. State of Indiana (NFP)

Juran Campbell v. State of Indiana (NFP)

Jose Anaya Pichardo v. State of Indiana (NFP)

Nicholas Alan Stump v. State of Indiana (NFP)

Roy Turner v. State of Indiana (NFP)

Laqualin Paige v. State of Indiana (NFP)

Christopher C. Wright v. State of Indiana (NFP)

Tammy B. Davis v. State of Indiana (NFP)

Veon Garrison v. State of Indiana (NFP)

Venetta Edmonds v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Circuit rules in Wisconsin casino fraud case

No Indiana decisions today from the 7th Circuit, but U.S. v. Moore and Knutson is an interesting opinion from Judge Evans, who begins:

The date: April 14, 2005. The time: 6 p.m. The place: Ho-Chunk casino in Baraboo, Wisconsin. The event: a drawing to determine who would walk off with $10,000. Undoubtedly, excitement was in the air. Realistically, the average schlemiel had only a .000067 percent chance of winning. But another participant in the drawing had to like his chances: Bruce Knutson had a 30 percent chance of coming up a winner. And when the winning entry form was pulled from the barrel—ta da—the winner was Bruce Knutson! The lucky winner then posed for a publicity picture, signed off on a tax form, received a check for $5,000, and pocketed $5,000 in cash. It was, we suspect, a night to remember. But all was not, as we shall see, quite as it seemed. The rest of the story explains why Knutson and his buddy, Darwin Moore, are here appealing their convictions after they were found guilty of bilking the casino out of $10,000.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Yet more on: Abortion requirements re hospital admission privileges heard at county level now proposed as state legislation

Updating this ILB entry from April 16th, Niki Kelly has a story in the Fort Wayne Journal Gazette headed "Abortion doc assails bill’s terms." A quote:

[Dr. George Klopfer is an] Illinois physician works at the Fort Wayne Women’s Health Organization and also performs abortions in South Bend and Gary.

“This is about what I do and people who disagree with it. And this decision is going to hurt women,” said Klopfer, speaking to The Journal Gazette for the first time about the proposal.

“This is a veiled attempt at outlawing a woman’s freedom to choose. If you lose a freedom, it is much harder to get it back than to maintain that freedom.”

Klopfer said he tried unsuccessfully in the late 1970s and early 1980s to obtain admitting privileges at a hospital in South Bend, and even sued.

“I was denied privileges because of what I do,” he said, also noting that he has never had a patient die in 36 years of performing abortions.

Because Klopfer doesn’t live in Indiana, it is unlikely he could obtain privileges for at least two of the clinics where he works, and possibly all three.

“The point here is they claim the law is about patient safety – that’s meaningless,” he said, noting that emergency rooms are required to treat women with complications regardless of whether a woman’s doctor has admitting privileges.

But Dr. Geoff Cly, a Fort Wayne gynecologist who has treated several patients of Klopfer for complications, said there are no quality measures in place.

“I’m disappointed because patients are being harmed and the powers that be aren’t taking action to protect the women,” Cly said. “How can we hold him accountable like the rest of surgeons? Admission privileges are one way. If anyone has any other ways, let me know.”

Shari Rudavsky has a report in the Indianapolis Star, headed "Abortion bill debate: patient safety vs. restriction to access - Sides differ on the intent behind hospital admitting privileges."

It is a lengthy story, accompanied by several useful side-bars, but you have to keep clicking to see everything. For instance, here is "p. 4", which sets out the current restrictions on abortion in Indiana, other regulations, and what is involved in obtaining hosptial privileges.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Indiana Law

Ind. Courts - Further updating "LaPorte deputy prosecutor shot"

Updating this ILB entry from April 19th, Laurie Wink of the Michigan City News-Dispatch writes today in a story that begins:

LA PORTE - The grand jury investigation of the shooting incident involving La Porte County Superior Court 3 Judge Jennifer (Evans) Koethe is a rare legal approach, according to area judges.

Circuit Court Judge Tom Alevizos said a grand jury investigation is "an oddity" in La Porte County. In the 20 years he's practiced law in the county, he said, the only grand jury investigation was in May 1998 regarding the murder of Rayna Rison, a 16-year-old who was abducted after leaving her job at a local veterinary clinic on March 26, 1993. Her body was found a month later in a rural Springfield Township pond.

Alevizos has summoned a six-member grand jury to hear evidence in the investigation of the Evans case. The grand jury hearing will be conducted in a courtroom in the La Porte County Courthouse by Michael Dvorak, prosecuting attorney for St. Joseph County, who requested Alevizos to convene the grand jury. No judge is present during the grand jury proceedings.

Alevizos said his role is limited to selecting jurors and receiving the jury's final report. He said grand jury members are selected at random from the same pool of potential jurors used for jury trials.

Jeffrey Thode, Porter County Superior Court 6 judge, agrees with Alevizos that a grand jury investigation is a rare thing at the county level. Thode is a member of the community relations committee of the Indiana Judicial Center.

"I have never empowered a grand jury," he said. "Almost always, the prosecutor issues charging information." With a charging information, or affidavit, a charge is filed in court at the discretion of the prosecuting attorney.

Thode said a grand jury takes the prosecutor out of the responsibility to make a decision whether there is probable cause to indict any of the parties involved. But the prosecutor controls the evidence presented, Thode said.

"In a nutshell, the grand jury is charged with the responsibility of determining if there's anything to this incident or not," Thode said.

"There's a difference between being charged with and being convicted of a crime," Thode added.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Indiana Courts

Courts - "Stevens, joined by Ginsburg, Souter, Scalia, and Thomas"

That is the lineup for the Supreme Court decision today in Arizona v. Gant, which limits the search incident to an arrest exception when the police want to search an automobile passenger area. See the entry by Orin Kerr in The Volokh Conspiracy. More later.

See the AP's "Supreme Court limits warrantless vehicle searches" via the Washington Post.

From the NY Times, a story by David Stout, headed "Supreme Court Puts New Limits on Vehicle Searches ."

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Courts in general

Courts - "Supreme Court begins hearing this week four cases that could dramatically alter the landscape of civil rights law"

So writes Joan Biskupic today in a long article in USA Today. A few quotes:

WASHINGTON — In his first major speech as attorney general, Eric Holder tried to spur a conversation on race by bluntly describing America as "essentially a nation of cowards" and saying people "simply do not talk enough with each other about race."

Two months later, the issue of race is squarely before the Supreme Court, which begins hearing this week four cases that could dramatically alter the landscape of civil rights law. The cases also could provide a revealing look at how the administration of the nation's first African-American president will address racial matters before the Supreme Court, led by conservative Chief Justice John Roberts.

The disputes come to the high court just months after the election of Barack Obama as president and the confirmation of Holder as the nation's first black attorney general. They also arise at a time when a majority of the nine justices have signaled they want to end government policies that favor racial minorities to remedy past bias or enhance diversity.

The cases encompass fundamental issues — voting rights, employment, housing and education — and will test the court's stance on civil rights more comprehensively than at any time in the past decade. Their outcomes will determine, for example, the Justice Department's authority to screen state election policies that might hurt minority candidates.

The justices also will examine the validity of tests that don't seem to discriminate against minorities, including written exams or strength requirements, but that end up disproportionately disqualifying minorities from jobs or promotions. * * *

The two biggest race-related cases this term involve voting rights and claims of "reverse" discrimination:

• New Haven firefighters (to be heard Wednesday). No blacks and only two Hispanic applicants qualified for promotions based on their scores on exams that combined written and oral questions. The New Haven Civil Service Board, fearing bias lawsuits, set aside the test results and canceled the promotions.

Frank Ricci, the white lead challenger in the firefighters' lawsuit, says in court filings that he overcame dyslexia and paid to convert study materials to audio recordings to prepare for the test. His lawyers say canceling the promotions because of how blacks fared amounts to "overt racial balancing, de facto quotas and blunt race politics in government hiring."

New Haven Mayor John DeStefano and other city officials say they wanted to avoid claims of indirect discrimination against minorities.

• Voting rights (to be heard April 29). This case arises from Congress' 2006 extension of the Voting Rights Act. A provision requires nine mostly Southern states with a history of voting bias to get Justice Department approval when they change election-related laws. President George W. Bush signed the law, and his administration defended it before a lower court, which upheld it.

The Texas challengers, citing Obama's election, claim in their brief that the nation has changed so dramatically since 1965 that Congress lacks the authority to require the Justice Department's involvement in state and local elections. If individual voters do face bias, the challengers say, they can sue. "Such voting discrimination as remains is isolated in time and place," they say.

Justice Department lawyers say congressional hearings before the law's passage showed ongoing discrimination against minority voters. In one 2000 incident related at the hearings, a campaign worker for a black candidate in Wharton County, Texas, had her home set on fire.

The other two related cases involve English instruction in Arizona border schools (which the court heard Monday) and lending practices for home mortgages (to be heard April 28).

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Courts in general

Ind. Courts - More on: "Could 2009 bring a third Camm trial?"

This January 5th ILB entry quoted from a New Albany/Jeffersonville News & Tribune story that began:

David Camm is still waiting for the Indiana Supreme Court to decide his fate, again. Quietly, Floyd County leaders worry about what could happen.

Today Harold D. Adams of the Louisville Courier Journal has a lengthy story headlined "Camm, families await ruling on murder appeal." It begins:

Indiana juries have twice convicted David Camm of murdering his wife and their two children in the garage of the family's Georgetown home in 2000.

But some observers believe the former state police trooper has a good chance of getting a third trial -- or even a direct acquittal -- when the Indiana Supreme Court rules on his latest appeal, which was argued a year ago next month.

The court is not under any deadline, and its decision could come at any time.

"Generally, if they're going to affirm something and it's an easy open-and-shut case, it's done quickly," Stacy Uliana, one of Camm's attorneys, said of the state's high court. "The longer it takes, I think the better it is for us. There is a real chance here that they could acquit him."

Craig Bradley, an Indiana University Maurer School of Law professor not directly involved in the case, agreed, noting: "My whole reaction to this case all along was that the evidence seemed very thin at the trial. So I'm not too surprised that the appeal is presenting apparently some difficulties to the Supreme Court."

But Deputy Attorney General Stephen Creason, who defended the state's case in the appeal presented on May 22, said the lengthy wait "doesn't mean anything."

"I was thinking initially that it would take at least a year," and it wouldn't be unusual "for that to take another six months," he said.

"The most obvious reason" that the court has not yet ruled, Creason said, "is that this (case) record is very large and there are many, many issues that the defense raised, and it takes a lot of time to go through the record and the briefs on each point."

Creason and Floyd County Prosecutor Keith Henderson, who ran the second Camm prosecution, insist that the Supreme Court will find that the trial leading to Camm's March 2006 conviction for the shootings of Kimberly Camm, 35, Bradley Camm, 7, and Jill Camm, 5, was handled appropriately.

Here are stories on the oral argument, from May 22nd and 23rd, 2008.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Indiana Courts

Ind. Courts - More on: "St. Joe County judges' election bill gets Senate OK;" plus some observations from the ILB

Updating this ILB entry from April 16th, which included this paragraph about the language in HB 1491 (currently in conference committee) to add a 6th panel to the Indiana Court of Appeals:

A second point is that the current Court of Appeals caseload does not justify the creation of another panel. The Court is well run, smoothly operating, and has no trouble handling the cases. Earlier this year, I heard from very reliable sources that there were very few cases before the Court. Business has picked up since then and the Court is again at what appears to me to be its normal load, which the current COA judges handle with much efficiency. It would seem that some professional caseload analysis should precede the creation of a new multi-million dollar a year panel.

Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, has this commentary today about HB 1491:

Politics is at play in House Bill 1491, which would change the method of choosing Superior Court judges in Lake and St. Joseph counties – two Democrat-dominated counties – from appointment to election. While that move is the subject of worthy debate, the Indiana Senate has tacked on a separate move to create a sixth Indiana court of appeals with three more appellate judges. All would be appointed by Gov. Mitch Daniels.

The big question for legislators and for public policy: Is the new court – estimated to cost $2 million to $3 million in the upcoming budget – necessary to expedite appeals, or is the Republican-controlled Senate looking for a way to give the Republican governor a way to appoint three more key judges?

Well, he is wrong about one thing -- HB 1491 does not propose to change the method of selecting Lake County judges, only St. Joe County.

Posted by Marcia Oddi on Tuesday, April 21, 2009
Posted to Indiana Courts

Monday, April 20, 2009

Law - More on: Can the Indiana General Assembly appropriate money to Notre Dame?

As it turns out, it already does . . .

When I wrote this ILB entry yesterday, Notre Dame was the only well-known Indiana church-affiliated college or university I could think of, although I wrested with Valparaiso University, which I think is Lutheran. Today a reader writes:

Thought you'd like to know that the State Budget as passed out of the Indiana Senate includes a $1.55 million appropriation in each year of the biennium to Notre Dame from the State General Fund and $15,665 per year from the American Recovery and Reinvestment Act State Fiscal Stabilization Fund.

Sure enough, here it is what the reader referenced, on p. 80 of the April 14th printing of HB 1001.

I also found two addition appropriations to Notre Dame, on p. 116, $1,566,525, and on p. 119, $1,550.860.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 17, 2009

First off, here is a supplement to the transfer list for the week ending April 9, 2009. It lists one case, dismissed on April 10th. Here is the order.

Here is the transfer list for the week ending April 17, 2009. It is also one page long.

Two cases were transferred with opinion last Thursday, April 16th. Bannister was summarized here, on Friday; In re T.S. was also summarized Friday.

Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.

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, April 20, 2009
Posted to Indiana Transfer Lists

Ind. Law - US News Law school rankings out (but not officially)

Good news for Bloomington, bad news for Indy, according to this report from The Bright Coast:

Here are pics of the 2010 rankings, thanks to top-law-schools.com. Our San Diego counterparts are both in Tier 4. Other big gains are Indiana-Bloomington (23rd from 36th), UNC (30th from 38th), Davis (35th from 44th), Lewis & Clark (61st from 73rd), Georgia State (65th from 77th), Penn State (65th from 77th), Louisiana State (75th from 88th), Denver (77th from 88th), and SUNY-Buff (85th from 100). Significant drops are George Washington (28th from 20th), Boulder (45th from 32nd), Baylor (65th from 55th), Chicago-Kent (77th from 66th), Seton Hall (77th from 66th), and Indiana-Indy (87th from 68th). Other CA schools are as follows: Stanford (3rd), Berkeley (6th), UCLA (15th), USC (18th), Davis (35th), Hastings (39th), Pepperdine (55th), Loyola (71st), Santa Clara (85th), and USF (98th - congrats on being back in the Top 100!).

However, I'm told the Indy Law legal writing program made the top ten nationally.

Here is the ILB entry from April 26, 2008.

Perhaps more info later on this.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Indiana Law

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

For publication opinions today (3):

In Bruce Scalambrino, et al v. Town of Michiana Shores, et al, an 18-page opinion, Judge Robb writes:

Bruce Scalambrino and the other town-resident plaintiffs appeal the trial court's entry of summary judgment on counts I through IV and VI of their second amended complaint in favor of Michiana Shores (“the Town”) and T-Mobile.1 Scalambrino raises a single issue for our review; whether the trial court erred when it entered summary judgment in favor of T-Mobile and the Town. Concluding that the Town validly authorized the site lease and amended its zoning ordinance and zoning map to allow for the construction of the cell tower, we affirm. * * *

Although the Town's initial attempt to authorize the site lease was invalid, the Town subsequently authorized the site lease pursuant to proper statutory procedures. In addition, the Town sufficiently complied with the notice requirements. Therefore, we hold the Town's authorization of the site lease is valid. * * *

Although Ordinance 2007-02 singles out cell towers and antennae for exception from the building height requirements, it does not single out a single piece of property for different treatment. The ordinance does not change the zoning solely for the purpose of constructing a cell tower. Rather, the ordinance creates a governmental district where the Town can consolidate governmental services and utilities.

Second, even assuming that Scalambrino is correct that the ordinances constitute spot zoning, his argument that the amendments do not bear a rational relation to the public health, safety, morals, convenience, or general welfare is unpersuasive. Improved cellular communications in the area has a direct, positive effect on the safety and convenience of the Town as well as the surrounding community. * * * The Town's decision to supplement its revenues by leasing municipal property is rationally related to improving the Town's general welfare. Therefore, we hold that Ordinances 2007-2 and 2007-3 are both procedurally and substantively valid.

Conclusion. The Town's authorization of the site lease through Resolution 2006-2 was valid as was its amendment of the zoning ordinance through Ordinances 2007-2 and 2007-3 to allow construction of the cell tower. Therefore, the trial court did not err when it granted summary judgment to the Town and T-Mobile on Counts I-IV and VI of Scalambrino's Second Amended Complaint. Affirmed.

In Brandi Hayworth v. State of Indiana (Brown Cir. Ct., Judge Stewart), a 26-page opinion, Judge Vaidik's "case summary" is nearly 2 pages long. From the conclusion:

We conclude that Detective Southerland‘s admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct. Police officers have a duty and obligation of full and fair disclosure of all material facts when applying for a warrant. * * * And when there is a material omission of fact, this amounts to deliberate, reckless, or grossly negligent conduct. Even the trial court said at the suppression hearing that Detective Southerland‘s affidavit made it seem like the informant had personally observed all of these things. Because the State did not follow up with Detective Southerland at the suppression hearing, we do not know from this record what, if anything, the informant personally observed. And as Hayworth points out in her reply brief, the State makes no effort on appeal to explain, reconcile, or justify the discrepancies between Detective Southerland‘s affidavit and what the informant actually told him.

In addition, we conclude that Detective Southerland‘s conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct and that it is sufficiently culpable that such deterrence is worth the price paid by our justice system. Although, as the Herring Court said, the principal cost is "letting guilty and possibly dangerous defendants go free," 129 S. Ct. at 701, we find there is "appreciable" deterrence given the importance of a police officer‘s full and fair disclosure of all material facts when applying for a warrant and the material omissions of fact here. Id. at 700.

In sum, the State is the one urging us to apply the good faith exception, and there is simply nothing in the record to support its application. Accordingly, the State has failed to prove that the good faith exception applies, 16 and the evidence seized pursuant to the search warrant must be excluded. The trial court therefore erred in admitting the evidence.

Although we determined above that Hayworth waived her objection to some of this evidence by stating "No objection," we conclude that the admission of this evidence amounts to fundamental error. Given the misleading statements in Detective Southerland‘s affidavit and the police‘s utter lack of corroboration of the informant‘s statements of criminal activity, we find the error to be so prejudicial to the rights of Hayworth as to make a fair trial impossible.

In light of this holding, we do not need to reach Hayworth‘s other arguments on appeal. Reversed and remanded.

In Brian Montgomery v. State of Indiana , a 17-page opinion, Judge Robb writes:

Following a bench trial, Brian Montgomery was convicted of dealing in cocaine, a Class A felony. On appeal, Montgomery raises the issue of whether the trial court abused its discretion in admitting evidence obtained by police during a warrantless search of his motel room. Concluding that the police did not violate the Fourth Amendment of the United States Constitution or Article I, section 11 of the Indiana Constitution and, therefore, the trial court properly admitted the evidence, we affirm. * * *

Officers had reasonable grounds to believe an emergency was at hand, they were motivated primarily by the intent to give assistance, and Vargas's statements and the room keycard in her possession linked the hotel room to the possible emergency. Under the totality of the circumstances, we hold officers acted reasonably in entering the motel room.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Robert P. Journay, Jr. v. State of Indiana (NFP), an opinion by Judge Vaidik, is worthy of note because of footnote 2 on p. 2 of the 5 page opinion in an indecent exposure case:

In the argument section of his brief, Journay discusses an unpublished memorandum decision. We remind Journay’s counsel that memorandum decisions are not be cited as authority except by parties to the case to establish res judicata, collateral estoppel, or law of the case, none of which are applicable here. Ind. Appellate Rule 65(D).

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Results of the February 2009 Indiana Bar Exam

The names of those who succeeded are available here.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Indiana Courts

Law - "For the poor, there are simply not enough lawyers to go around"

That is a quote from Fran Quigley's opinion piece today in the Indianapolis Star. Quigley is described as "an attorney working on local and international poverty issues." Fran Quigley is also a former Executive Director of ACLU of Indiana. His important article today begins:

Indiana Legal Services, where I work part time as a staff attorney, is the justice system's equivalent of a hospital emergency room. Whenever the phones open to allow new applications for legal help, all available lines are quickly clogged with urgent requests.

This year, of course, the calls have reflected the epidemic of Hoosiers facing the loss of their homes through foreclosure. The clumsy privatization of Indiana's food stamps and Medicaid programs has forced many people who are sick and hungry to seek a lawyer's help. Calls pour in every week from women hoping for a divorce and protection from abusive spouses, tenants facing dangerous housing conditions, and seniors struggling to maintain access to shelter and medicine.

It concludes:

Some of those turned away from Indiana Legal Services get advice letters, and some get sample court papers they can fill out and file on their own. For a few, this patchwork effort works adequately. For others, it is the equivalent of handing me a scalpel and a medical textbook and instructing me to conduct my own appendectomy.

In our nation of laws, people who are facing evictions, enduring dangerous family arrangements or being unjustly denied access to government programs all have legal rights. These rights look very good on paper.

But those rights don't mean much if there is no one to help you defend them.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Indiana Law

Ind. Decisions - More on: "Its legal battle lost, library may still have to pay more"

Updating this ILB entry from April 16th, Vic Ryckaert had a story in the Indianapolis Star on April 17th headlined "Lawyers hopeful that library can win on appeal." Some quotes:

Lawyers for the Indianapolis library system expressed optimism Thursday about the chances of overturning a jury verdict against its claims of fraud in the Central Library construction project.

However, members of the Indianapolis-Marion County Public Library board have not decided whether to appeal the verdict, which cleared New York-based engineering company Thornton Tomasetti of fraud in connection with $50 million in cost overruns stemming from defects in the Downtown building's underground garage.

Also on the 17th, this article by Jon Murray on the library's financial picture and its legal opinions. Re the latter, Murray writes:

The library's legal options are running short:

» Ask the Indiana Supreme Court to reinstate negligence claims against Thornton Tomasetti that the trial judge dismissed, a decision already upheld by the Indiana Court of Appeals.

» Start an appeal of another pretrial ruling barring it from pressing breach of contract claims originally made against Thornton Tomasetti by the project's architects. The library assumed those claims through its settlement with the architects, Woollen, Molzan and Partners.

Today the Star has this editorial, headed "After library loss, lessons learned?." It begins:

Barring a spectacular late-inning rally, the Indianapolis-Marion County Public Library Board will finish its long season of Central Library litigation with a .500 batting average.

That's not bad, considering the current troubles some other publicly funded edifices have been facing lately.

But it's not good, seeing as taxpayers may be on the hook for roughly $25 million that might have been saved had the board hired a general contractor for Central and not tried to head up the complex expansion project on its own.

Be that as it may, the board seemed well on its way toward recouping all or most of the $50 million cost overrun after successfully suing various parties involved in the bollixed construction. Those settlements added up to about $25 million; the remainder was sought in a lawsuit against the design engineer, Thornton Tomasetti of New York.

A Boone County jury last week spoiled the run, clearing Thornton Tomasetti of fraud and sticking the library board with a $712,000 counterclaim for good measure.

While the victorious defendants were quick to accuse the library folks of squandering taxpayer money in frivolous litigation, the plaintiffs deserve the benefit of the doubt for pursuing an avenue that did, after all, yield $25 million worth of success.

Now, the board must decide whether to follow the unpromising course of appealing the verdict, or to cut its losses.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, involving environmental fraud

These ILB entries from Nov. 5, 2005 and Nov. 6, 2005 outline a "false plugging and abandonment reports scheme" reported in the Evansville Courier & Press, involving "the actions of two former state oil-well inspectors and a private contractor implicated in what prosecutors call a scheme to defraud state and federal environmental regulators." Mentioned in the stories is "Tim Boisture, who is a former project manager and part-owner of Environmental Consulting & Engineering Co., and founder of Subcon LLC."

In U.S. v. Boisture (SD Ind. Judge Young), a 15-page opinion issued today, Judge Rovner writes:

As partial owner of the environmental consulting firm Environmental Consulting and Engineering Company (“Environmental Consulting”), Timothy A. Boisture participated in a multi-part scheme to defraud, among others, his company and the Indiana Department of Environmental Management. A grand jury returned a superseding indictment charging Boisture with three counts of mail fraud, see 18 U.S.C. § 1341, one count of money laundering, see 18 U.S.C. § 1957, and one count of making false statements, see 18 U.S.C. § 1001. A jury convicted him on just two counts—both for mail fraud. Boisture appeals, arguing that the evidence against him was insufficient as to one of his mail fraud convictions. * * *
Although the question is a close one, we conclude that sufficient evidence supports the jury’s conclusion that the mailing of the two P & A Reports furthered the scheme to defraud. Likewise, the evidence was sufficient on the mailing aspect of Count I. We therefore AFFIRM Boisture’s convictions and sentence.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Ind. (7th Cir.) Decisions

Environment - Federal bill would ensure protection of wetlands

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

Many wetlands and streams that help reduce the impact of floods in Northwest Indiana and replenish groundwater for drinking are left at risk for pollution and development because of a loophole in federal law.

For several years, Congress has tried to plug the hole in the Clean Water Act. The debate is about to resurface after a new "Clean Water Restoration Act" was introduced in the U.S. Senate earlier this month, but Indiana's two senators have still not decided whether to support it.

Environmentalists, sportsmen and some legislators say two U.S. Supreme Court decisions narrowed the scope of the 1972 Clean Water Act and eroded its intent, which was to protect all the nation's waters from pollution and unregulated development.

The law states that it protects "all navigable waters in the United States." But court cases have interpreted this to mean that only navigable, permanent water bodies are covered, not certain wetlands and streams.

The new definition confused the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers about which streams they should protect and stopped federal regulators from enforcing against developers who have been disturbing or plan to disturb the waters without a permit.

The NY Times had an editorial April 16th headlined "A Clear, Clean Water Act." Some quotes:

Clean water policy is in a terrible muddle, and the country has the Supreme Court to thank for it.

The 1972 Clean Water Act was written to protect all the waters and wetlands of the United States. Two unfortunate Supreme Court decisions narrowed its scope, weakened its safeguards and thoroughly confused the federal agencies responsible for enforcing it. As a result, thousands of miles of streams and millions of acres of wetlands have been exposed to development.

The remedy lies in a Senate bill called the Clean Water Restoration Act, which would reassert the broad reach of the 1972 law. Similar legislation has been languishing for years, and if this version has any hope, it will need a strong push from the White House. * * *

Until the two Supreme Court rulings, the Clean Water Act had been broadly interpreted by courts and by federal regulators to shield all the waters of the United States — seasonal streams and remote wetlands as well as large navigable rivers and lakes — from pollution and unregulated development. The assumption was that even the smallest waters have some hydrological connection to larger watersheds and therefore deserve protection. The Supreme Court, however, exploiting ambiguities in the law, effectively decreed that only navigable, permanent water bodies deserve protection.

As a result, at least 20 million acres of wetlands and as much as 60 percent of the nation’s small streams have been left unprotected, while effectively shutting down enforcement actions against developers who have been disturbing or plan to disturb these waters without a permit.

The Clean Water Restoration Act would establish, once and for all, that federal protections apply to all waters, as Congress intended in 1972. Now a new Congress and a new White House must ensure that it becomes law.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Environment

Law - "Most diverse Cabinet in history still incomplete"

USA Today has a good overview of the new cabinet today in a report by Richard Wolf that includes a chart with photos and info on all the appointees.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to General Law Related

Ind. Law - "It's the Law: Arson is considered serious crime"

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

Indiana law states it is a Class B felony, punishable by as many as 20 years in prison, to use fire or a destructive device to damage a person's home or a place of worship. Even if a home or church isn't involved, it is still a Class B felony to cause $5,000 damage to someone's property, to endanger a life or to commit arson for hire.

The offense becomes a Class A felony, punishable by as many as 50 years in prison if someone is injured.

"All the crimes involving arson are going to be felony charges, very severe charges," Valparaiso police Sgt. Michael Grennes said.

Assistant Valparaiso Fire Chief Dan Lamb said arsonists generally strike for two reasons: to be malicious or to collect insurance money. Either way, arsonists create a dangerous situation and face serious charges. * * *

Although the more serious arson cases carry maximum penalties of 20 years in prison, or 50 in the cases of injuries, even a fire that causes only $250 damage can get someone charged with Class D felony arson, which is punishable by as many as three years in prison.

And a person who commits arson for fraud can be charged with a Class C felony, punishable by as many as eight years in prison.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Indiana Law

Ind. Law - "Legislators closing in on budget: Education funds, duration at issue"

Here is Eric Bradner's weekly report in the Evansville Courier & Press on happenings last week in the General Assembly and a look forward.

For another take, see the Louisville Courier Journal's Lesley Stedman Weidenbener's report today, headlined "Ind. legislators face crucial money question before session ends: Special session called possible." It begins:

Republican and Democratic lawmakers have nine days remaining to find an agreement on a state budget and a plan to fix Indiana's bankrupt unemployment insurance system.

Otherwise, they face a special session to finish the work.

Neither goal is likely to be easy.

Although majority Republicans in the Senate and Democrats who control the House say they're not far apart in early budget negotiations, they have yet to tackle the toughest topic -- how to divide some $6 billion in education dollars among the state's school districts.

Meanwhile, they do seem far apart in the unemployment insurance debate. The system is now paying far more in benefits than it receives in premiums and has blown through all its surpluses.

To fix it, both sides agree that employers need to pay higher premiums, but Republicans are seeking cuts in worker benefits while Democrats say no way.

In the Fort Wayne Journal Gazette today, Niki Kelly's story is headed "Deadline looms to fix jobless fund deficit."

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Indiana Law

Ind. Law - More on: "Police want to add DNA from more people to database"

Updating this long ILB entry from Feb. 17th, I just checked the four DNA-related bills listed, and none of them is still viable.

Sunday the NY Times had a lengthy, front-page story headlined "F.B.I. and States Vastly Expand DNA Databases." Reported by Solomon Moore, the story is accompanied by this graphic, which compares the states "in regard to who is required to submit DNA": all felons; some misdemenor offenders; some arrestees; and/or some juveniles.

Some quotes from the story:

Law enforcement officials say that expanding the DNA databanks to include legally innocent people will help solve more violent crimes. They point out that DNA has helped convict thousands of criminals and has exonerated more than 200 wrongfully convicted people.

But criminal justice experts cite Fourth Amendment privacy concerns and worry that the nation is becoming a genetic surveillance society.

“DNA databases were built initially to deal with violent sexual crimes and homicides — a very limited number of crimes,” said Harry Levine, a professor of sociology at City University of New York who studies policing trends. “Over time more and more crimes of decreasing severity have been added to the database. Cops and prosecutors like it because it gives everybody more information and creates a new suspect pool.”

Courts have generally upheld laws authorizing compulsory collection of DNA from convicts and ex-convicts under supervised release, on the grounds that criminal acts diminish privacy rights.

DNA extraction upon arrest potentially erodes that argument, a recent Congressional study found. “Courts have not fully considered legal implications of recent extensions of DNA-collection to people whom the government has arrested but not tried or convicted,” the report said. * * *

Law enforcement officials say that DNA extraction upon arrest is no different than fingerprinting at routine bookings and that states purge profiles after people are cleared of suspicion. In practice, defense lawyers say this is a laborious process that often involves a court order. (The F.B.I. says it has never received a request to purge a profile from its database.)

When DNA is taken in error, expunging a profile can be just as difficult. In Pennsylvania, Ellyn Sapper, a Philadelphia public defender, has spent weeks trying to expunge the profile taken erroneously of a 14-year-old boy guilty of assault and bicycle theft. “I’m going to have to get a judge’s order to make sure that all references to his DNA are gone,” she said.

The police say that the potential hazards of genetic surveillance are worth it because it solves crimes and because DNA is more accurate than other physical evidence. “I’ve watched women go from mug-book to mug-book looking for the man who raped her,” said Mitch Morrissey, the Denver district attorney and an advocate for more expansive DNA sampling. “It saves women’s lives.” * * *

Britain may provide a window into America’s genetic surveillance future: As of March 2008, 857,000 people in the British database, or about one-fifth, have no current criminal record. In December, the European Court of Human Rights ruled that Britain violated international law by collecting DNA profiles from innocent people, including children as young as 10.

Critics are also disturbed by the demographics of DNA databases. Again Britain is instructive. According to a House of Commons report, 27 percent of black people and 42 percent of black males are genetically registered, compared with 6 percent of white people. * * *

Enforcement officials contend that DNA is blind to race. Federal profiles include little more information than the DNA sequence and the referring police agency. Subjects’ names are usually kept by investigators.

Rock Harmon, a former prosecutor for Alameda County, Calif., and an adviser to crime laboratories, said DNA demographics reflected the criminal population. Even if an innocent man’s DNA was included in a genetic database, he said, it would come to nothing without a crime scene sample to match it. “If you haven’t done anything wrong, you have nothing to fear,” he said.

The Congressional Report cited in the story is "Compulsory DNA Collection: A Fourth Amendment Analysis," dated Jan. 23, 2009. The 18-page CRS report is available here.

Posted by Marcia Oddi on Monday, April 20, 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 4/20/09):

Thursday, April 23rd

9:00 AM - Che B. Carter v. State of Indiana - Carter was convicted of attempted murder and other offenses committed in 1990. In 2008, the Marion Superior Court denied post-conviction relief. The Court of Appeals reversed on grounds the attempted murder jury instruction was “fundamentally erroneous” and instructed the trial court to vacate the attempted murder conviction. Carter v. State, 898 N.E.2d 315 (Ind. Ct. App. 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of the 2-1 Dec. 11, 2008 COA opinion here - 2nd case.]

Next week's oral arguments before the Supreme Court (week of 4/27/09):

Next Thursday, April 30th

9:00 AM - Juan C. Lucio v. State of Indiana - Lucio was convicted on two counts of murder and one count of conspiracy to commit murder. The jury recommended a sentence of life without the possibility of parole, and the Hamilton Superior Court sentenced him accordingly. In this direct appeal, Lucio argues the trial court should have declared a mistrial after a State's witness violated a motion in limine.

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.

This week's oral arguments before the Court of Appeals (week of 4/20/09):

Monday, April 20th:

10:00 AM - In The Matter of T.A., & K.S., (Children Alleged to be Children in Need of Services) Lynette F., (Natural Mother) vs. Department of Child Services Pulaski County - Pulaski County Department of Child Services removed T.A. and K.S. from the home of their mother, Lynette F., pending an investigation into the sudden death of their 14-year old sibling, J.S. After an autopsy report concluded J.S.'s death was accidental and directly caused by a prescription error, Mother and DCS agreed to a timeline for the return of T.A. and K.S. to Mother culminating on August 3, 2007. DCS failed to return the children on August 3. Mother filed a motion to hold DCS in contempt on August 6, and the trial court ordered DCS to return the children to Mother on August 9. DCS later filed a motion to discharge Mother's motion for contempt, which the trial court granted after a hearing. Mother filed a motion to correct error, which the trial court granted, and now appeals. The Scheduled Panel Members are: Judges Riley, Robb and Bradford. [Where: Ivy Hall at Ivy Tech, 3101 South Creasy Lane, Lafayette, Indiana]

Tuesday, April 21st:

10:00 AM - Jennings Water, Inc., vs. Indiana Department of Environmental Management, et al - Talara Lykins ("Lykins") applied for and received from the Indiana Department of Environmental Management ("IDEM") a permit for the construction of a Confined Feeding Operation ("CFO") facility in Jackson County, Indiana. Jennings Water, a rural, not-for-profit water company, provides water to approximately 3,000 rural customers in that area. Jennings Water first petitioned the Office of Environmental Adjudication ("OEA") for administrative review of IDEM's decision to issue a permit to Lykins for her proposed CFO, alleging that Lykins' CFO would endanger and contaminate Jennings Water's well water field located approximately a mile away from the proposed CFO. Jennings Water's petition was denied by the OEA. Jennings Water's petition for judicial review of the final order issued by the OEA was denied by the trial court. Jennings Water now appeals claiming that the trial court erred by affirming the decision of the OEA, which upheld IDEM's approval of Lykins' CFO permit. The Scheduled Panel Members are: Judges Robb and Vaidik, Sr. Judge Sullivan. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

Friday, April 24th:

10:00 AM - State of Indiana vs. Errick G. Benson - Appellant-Plaintiff the State of Indiana appeals the trial court's order suppressing certain evidence that was discovered after Appellee-Defendant Errick G. Benson was apprehended following his alleged flight from an investigatory stop. On appeal, the State argues that the trial court's suppression of the evidence was erroneous because the evidence was discovered during a valid search incident to Benson's arrest for resisting law enforcement. The Scheduled Panel Members are: Chief Judge Baker, Judges Crone and Bradford. [Where: Warsaw Community High School, 1 Tiger Lane, Warsaw, Indiana]

Next week's oral arguments before the Court of Appeals (week of 4/27/09):

None currently scheduled.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, April 20, 2009
Posted to Upcoming Oral Arguments

Sunday, April 19, 2009

Ind. Law - Still more on "Goshen lawyer's confidential files found in trash"

Updating earlier ILB entries, the Goshen News now has a story by Rod Rowe headlined "Attorney says he'll shred documents from now on." Some quotes:

Goshen attorney Joseph Lehman has been the center of a local controversy recently after a neighboring business owner reported finding some legal files in his company trash container.

Jason Oswald, owner of Constant Spring, 219 S. Main St., said that on a recent Saturday afternoon he noticed his trash container, which is emptied each Thursday, was full of paper files. He looked at the material and saw the files were of lawsuits of his neighbor on Main Street, attorney Joe Lehman.

Oswald said he called Lehman and complained that he used the Constant Spring trash container.

“I told him he owed me $40” to pay for emptying it, and Lehman told Oswald to send him the bill.

The papers were then disposed of in the next emptying cycle. * * *

After the incident became known some clients have called Lehman and a few have picked up their existing files from him. He has moved from the 200 block of South Main Street to an office at 204 W. Clinton St.

“I apologized to clients who called me and they seem to be satisfied,” Lehman said. “If any client wants a file I will give it to them.”

Lehman called the situation “painful.”

Charles Kidd, an attorney with the Indiana Supreme Court disciplinary commission, said there is no complaint pending against Lehman and if there was he could not discuss it.

He said complaints of possible breach of confidential information are not common, but not unheard of. He indicated there was a recent complaint of this type in another area of the state.

Kidd explained that lawyers often have a retention and destruction schedule to keep files from piling up.

Elkhart attorney Michael Yoder said recently he had a shredding service visit his office and dispose of old material for him. The charge was about $100, Yoder said.

Shredding material is widely considered the best way of disposing of confidential files rather than just sending it to the landfill, Yoder said.

Lehman said that’s what he plans to do from now on.

“Every piece,” he said, “will be shredded in the future.”

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Indiana Law

Law - Can the Indiana General Assembly appropriate money to Notre Dame?

That question crossed my mind when I read this story today by Roger Alford in the Lexington Kentucky Herald-Leader. Some quotes:

FRANKFORT, Ky. -- The Kentucky Supreme Court will decide whether a Baptist university can use $11 million awarded by state lawmakers three years ago to open a pharmacy school.

Lawyers are working under a June deadline to file written arguments. Justices could decide the case by the end of the year.

The case, which involves the University of the Cumberlands in Williamsburg, is being closely watched by advocates for other church-affilated schools that have largely been excluded in the past from state funding for construction projects.

A trial judge ruled last year that the appropriation to the Baptist university violates the state constitution. The university's attorneys appealed directly to the Supreme Court, skipping the Court of Appeals, in hopes of expediting a decision.

Lawmakers had appropriated $10 million in 2006 to build a pharmacy school on the southeastern Kentucky campus and an additional $1 million for scholarships for pharmacy students.

Special Circuit Judge Roger Crittenden held that the state appropriation violated a constitutional prohibition against public education money being spent on any "church, sectarian or denominational school." * * *

American Civil Liberties Union attorney Bill Sharp said Kentucky's constitution contains broader protections against public funding for private, church-affiliated schools than does the U.S. Constitution. Sharp said it appears some state lawmakers want to overlook those protections, which, he said, makes the outcome of the lawsuit "extremely important."

Tim Tracey, an attorney for the Christian Legal Society in Springfield, Va., said he believes the case can clear up the misconception in Kentucky that the state constitution bans such appropriations.

"It goes to the idea that private religious schools ought to be on the same footing as any other private institution," said Tracey, who is representing the Baptist university. "It's worth noting that, the way the rule of law has developed in Kentucky, it's fine to use a private institution to address a public need, except when it's a religious institution. And that's why the case is important."

Tracey said his argument before the Supreme Court is simple: "The legislature made that appropriation not for an educational purpose but for a health and welfare purpose."

The area served by the University of the Cumberlands, Tracey said, is in need of more pharmacists and funding a pharmacy school could have met the need.

Here is the provision of the Kentucky Constitution at issue. It has been in effect since 1891 without amendment:

No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.

What about Indiana? Indiana has this provision in its Bill of Rights, Art. 1, Sec. 6:

Section 6. No money shall be drawn from the treasury, for the benefit of any religious or theological institution.

It has been in effect, unchanged, since 1851.

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to General Law Related

Ind. Gov't. - "Requirement for lawsuit list draws fire, splits boards: Disclosure rule could worry arena bidders"

Jimmy Nesbitt reports today in a lengthy story in the Evansville Courier & Press that begins:

A resolution that would require companies bidding on city projects to disclose ongoing lawsuits or disputes with the city has sparked a divisive debate among key local lawmakers and business leaders.

The resolution was drafted by City Attorney David Jones, who said he is merely putting into place a stipulation that is already used by the Indiana Department of Transportation and state Department of Environmental Management. "They have the exact same policy. ...," Jones said. "And it's not conclusive."

Mayor Jonathan Weinzapfel supports the resolution, but two key City Council members from his own party, President B.J. Watts and Curt John, say they won't because they believe it is unfair.

And an attorney who represents one of Evansville's most successful construction companies has said in a letter to the Redevelopment Commission that the resolution could have a "chilling effect" on companies competing for business with the city. The Redevelopment Commission is one of several city bodies that Jones said will be voting the resolution.

"As an example, the city might consider itself to be in a disadvantaged position during the adversarial proceedings for a wide variety of reasons," wrote Bob Stayman, a partner at Ziemer, Stayman, Weitzel & Shoulders. "Yet, there is nothing mandating the City Law Department to disclose what might be a fundamental weakness in its case; the contractee is at the mercy of its adversary to insure that proper disclosures are made in this regard."

The resolution requires companies responding to a city bid, quote or request for a proposal to disclose current litigation, contract dispute or other adversarial proceeding against the city. That information "shall be considered a factor in determining the qualification, responsiveness and responsibility of such party ...," the resolution states. "And the matter shall be referred to the city law department for investigation and recommendation to the board before the award of any contract."

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Indiana Government

Ind. Law - "Bill allows Indiana to ship cadavers"

An AP story on the Indianapolis Star website reports:

BLOOMINGTON, Ind. — College officials faced with an excess of donated bodies for medical research and education hope state lawmakers approve a bill that would permit them to ship cadavers out of state to other research centers.

Under current state law, Indiana can receive donated bodies from other states, but the state’s colleges cannot ship donated cadavers out of state. * * *

Indiana had been averaging about 150 donated bodies annually, but in recent years that number has gone up to about 225 a year, Burr said. More people tend to donate their bodies to science when the economy is bad because there are no funeral expenses involved, he said.

Bill sponsor Rep. Peggy Welch, D-Bloomington, said there is broad support for the cadaver proposal, but other aspects of the bill may be a problem. Lawmakers from the House and Senate are trying to reach a compromise on the proposal before the legislative session ends April 29.

What bill is this? The ILB naturally wondered, as the story does not identify the bill.

It is Senate Bill 218. Here is the digest:

Health provider issues. Requires a health care provider or clinical laboratory that sends a patient sample for anatomic pathology services to a referral laboratory to disclose to the patient if the health care provider or clinical laboratory has a financial interest in the referral laboratory. Specifies requirements for claim payments to out of network health care providers. Provides that an "eligible institution", for purposes of the anatomical education program, must be an educational institution located in the United States. (Current law requires the institution be located in Indiana.)

It has passed both houses and the Senate now has the option to concur or send the bill to conference committee, as the bill was amended in the House. One of the House amendments (made in committee) added SECTION 2, the "cadaver" shipping language.

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Indiana Law

Courts - More on: "Judge Blocks Rule Permitting Concealed Guns In U.S. Parks"

Updating this ILB entry from March 20th, the NY Times now has this headline: "Obama Administration Won’t Appeal Ruling Striking Down Bush Policy on Guns in Parks." A quote:

The Bush rule, which took effect in January, allowed visitors to carry a loaded gun as long as the person had a permit for a concealed weapon and the state where the park or refuge was located allowed concealed firearms. Guns in parks had previously been severely restricted.

Kendra Barkoff, a spokeswoman for Interior Secretary Ken Salazar, said Friday that the department was not completely discarding the Bush rule. Instead, she said, officials intended to complete an environmental impact statement on the possible effects of the Bush rule, as well as a range of alternatives.

The review is expected to take several months. In the meantime, 26-year-old restrictions that had been in place before the policy change remain in effect.

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, which filed a lawsuit to block the Bush rule, said he was pleased by the Obama administration’s decision.

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Courts in general

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

Updating five earlier ILB entries, the AP is reporting:

A LaPorte County grand jury has been impaneled to investigate the December shooting of a judge who was slightly injured days before taking the bench.

St. Joseph County Prosecutor Michael Dvorak announced Saturday that the grand jury will look into the shooting of Jennifer Evans, who was elected a LaPorte Superior Court judge in November.

Evans, a former LaPorte County deputy prosecutor, was grazed in the head by a bullet while in her home on Dec. 22. She was not seriously injured and took the bench in early January.

[Updated at 12:30 PM] Here is comprehensive coverage from Joseph Malan of the Michigan City News-Dispatch:

MICHIGAN CITY - La Porte Circuit Court will investigate the Dec. 22 shooting incident that wounded La Porte Superior Court 3 Judge Jennifer Evans.

Saturday's press release from the St. Joseph County Prosecutor's Office states Michael Dvorak, St. Joseph Circuit Court prosecuting attorney, has requested La Porte Circuit Court investigate the matter, that "the La Porte Circuit Court convene the Grand Jury for investigation of certain criminal cases."

Late on Dec. 23, the La Porte Fire Department and La Porte County Emergency Medical Service arrived at Evans' home, 18 Victoria Circle in La Porte, in response to a call stating a female, who turned out to be Evans, suffered a gunshot wound to the head.

Since then, it had not been determined by prosecutors whether Evans accidentally shot herself or otherwise. Evans' husband, Stephan Koethe, told local news media Dec. 23 Evans accidentally shot herself when handling a gun she didn't think was loaded.

On Dec. 29, La Porte County Prosecutor Rob Beckman stepped aside and the case was transferred to St. Joseph County. Beckman stated the reason was Evans worked for him as deputy prosecutor until she was sworn in as Superior Court 3 judge Dec. 31.

Following Evans' election to the court, Walter Chapala, special judge in La Porte Superior Court 2, ordered Evans and Koethe on Jan. 27 to remove all firearms from their home and refrain from drinking alcohol while Koethe's two children are at home. According to a transcript of Koethe's 911 call, the children were home when Evans was shot.

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Indiana Courts

Courts - Even more on: Indiana decisions cited in Coleman-Frankin Senate dispute

Supplementing these three earlier ILB entries, a long story yesterday on the Minnesota Senate election, reported by Patricia Lopex of the Minneapolis Star-Tribune, includes this:

[Minnesota Governor Tim] Pawlenty has made the rounds of the national talk show circuit, taking care to point out that he will make a decision [to issue an election certificate] only after careful consideration of the state high court's decision and other factors.

"The federal courts might stay the court proceedings," Pawlenty said in an interview with MSNBC's Rachel Maddow. "We want a chance to see."

[But, notes the story] The U.S. Supreme Court has intervened in only two post-election disputes in nearly 40 years: Bush vs. Gore in 2000 and the far more obscure Roudebush vs. Hartke, a 1971 dispute over an Indiana U.S. Senate race that spent two months in the nation's highest court.

[More] Here is another interesting story today, from the Bemidji Pioneer, reported by Brian Bakst. It begins:

ST. PAUL, Minn. Republican Norm Coleman's next and possibly last gambit for regaining his U.S. Senate seat will come before a Minnesota Supreme Court that seems built to his advantage.

Five of the seven justices were put there by Republican governors. But Coleman's edge with the court, which is expected to receive the appeal this week of his election-lawsuit loss to Democrat Al Franken, isn't all it seems.

Two of the GOP appointees will sit out the appeal because they helped referee the statewide recount. A third has drawn fire for past donations to Coleman's Senate campaigns. And the court as a whole has a history of nonpartisanship when it comes to election-law decisions.

While courts nationwide are being increasingly drawn into political disputes, few elections reach this stage. Fewer still have such stakes: A six-year Senate term vital to the Washington power struggle, the pursuit of which has already cost the two men $50 million.

"These aren't the kind of cases judges want to see come their way," said Michael Pitts, a professor at the Indiana University School of Law in Indianapolis. "It's tough to divorce what is a political judgment and what is a legal judgment."

But read on for much more. And, near the end of the story:

Nationwide, election litigation has taken off since the turn of the century, according to a forthcoming Stanford Law Review study by Loyola Law School professor Rick Hasen. He documented 361 cases that reached state or federal courts in 2004 and 297 cases last year, encompassing campaign finance and redistricting challenges as well as voting administration disputes. Before 2000, he said, the average was 94 cases per year.

But Hasen said only a small percentage of the cases involve lawsuits by a candidate over the results of an election.

As a result, the case law directly applying to the questions in this election is limited. The most famous recent election case is Bush v. Gore, a much-debated U.S. Supreme Court ruling that effectively ended the 2000 presidential race. In its 5-4 decision, the court tried to tailor its decisions to the facts at hand, noting that "the problem of equal protection in election processes generally presents many complexities."

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Indiana Courts

Ind. Gov't. - More on: Put Capital Improvement Board (CIB) records online

Updating this ILB entry from April 5th, the Indianapolis Capital Improvements Board (CIB) has now put many of its documents online. Access the new site here.

A word of warning, some documents, such as the Colts' 141-page, scanned (and thus not searchable), lease, are quite large (26.4 MB), and are more readily downloaded than viewed online.

From the Indianapolis Star's Behind Closed Doors column today:

Our new cyber-CIB

After years of acting in what its detractors have called a "veil of secrecy," the Capital Improvement Board has come into the light of the Internet.

The board that runs the city's sports stadiums and convention center launched its own Web site last week: www.capital improvementboard.org.

The site contains board meeting minutes, budgets and financial reports for the past four years. It also has a list of board members (but no phone numbers) and links to the leases signed with the Colts, Pacers and Indians.

Board President Bob Grand had promised more transparency but did not know why the board had never had a Web site. He also questioned how much it would cost to create.

Not much, it turns out. David Sease, a CIB spokesman, said it cost $10 per year for the domain name, and $96 the first year to host the site.
Advertisement

Sease said the CIB used its own technology staff to design the site. It took about 20 to 30 hours of work.

Cathy Burton, president of the Marion County Alliance of Neighborhood Associations, said the Web site is "a step in right direction."

"I don't think the timing is a coincidence," Burton said. "It's a wake-up call. In this day and age, if you want money, you better be prepared to show how you're spending it."

Posted by Marcia Oddi on Sunday, April 19, 2009
Posted to Indiana Government

Saturday, April 18, 2009

Law - "In Grim Job Market, Student Loans Are a Costly Burden "

The ILB has had a number of entries on student loans. Today the NY Times has this lengthy article by Tara Siegel Bernard. Some quotes:

Perhaps seduced by the idea of graduating from a well-respected university, many students tend to overlook the consequences of graduating with debts that are likely to far exceed their starting salaries. And as many borrowers have learned, student loans are among the most ironclad debts, on par with child support, alimony and overdue taxes. They stick with you no matter what.

Bankruptcy usually doesn’t provide relief, except in the most dire of circumstances. Even death isn’t a good enough excuse for discharging some private loan debts. And the government can wield a heavy hand to collect what it is due: If you fail to repay your federal loans, it can garnish up to 15 percent of your wages or take your tax refund or part of your Social Security benefits.

But if you are having trouble paying back what you owe because you’ve lost your job or have some other financial difficulty, you have options. Of course, it’s always best to take corrective action before you’re officially in default. For federal loans, it generally takes about nine months of missed payments. But you can go into default on a private loan as soon as one payment is missed, though the rules vary by lender. And collection charges are usually steep.

“The good news on the federal loan side is that there are a lot of options for borrowers, particularly those who are in shorter-term financial trouble now,” said Deanne Loonin, director of the National Consumer Law Center’s Student Loan Borrower Assistance Project. “The private loan side is where we don’t have or are unable to give a lot of general information because there just aren’t as many rights.”

You first need to figure out what types of loans you have: federal, private or a combination of both. * * *. Below are several options for both loan types. * * * [But there] are fewer options with private loans, and borrowers are generally at the mercy of their lender and the loan contract.

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to General Law Related

Law - More on "Students Sue Anti-Cheating Service" for copyright violation

Updating this March 30, 2007 ILB entry, Howard Bashman of How Appealing reported on April 16th that the students' suit against TurnItIn was unsuccessful -- see his links.

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to General Law Related

Ind. Courts - More on: "Killer wins judge's permission to marry in jail"

Updating this ILB entry from yesterday, quoting a story in the Gary Post-Tribune, today's NWI Times has a slightly different take on the situation. Marisa Kwiatkowski reports:

CROWN POINT | A Hammond man convicted of murder and facing a possible life sentence has been cleared to marry in jail.

Steven Allen -- who was convicted last month of murdering his wife, infant daughter and another man in a 2005 Tanglewood Apartments arson fire -- asked Lake Criminal Court Judge Clarence Murray for permission to marry in the Lake County Jail so he could unite his new family.

"This is something we've been putting off for way too long now," Allen wrote in a letter to the judge. "Will you please give us the opportunity to make our family together whole and complete?" Allen and his fiancee have a daughter together, according to the letter. His fiancee was not mentioned by name.

Murray granted Allen's motion last week, court records state. The judge told The Times Friday he cannot, by law, deny Allen the right to get married. "I don't have the power to do that," Murray said. Murray's order states he will not perform the ceremony for Allen.

Lake County Police Chief Marco Kuyachich said that as of Friday, jail officials had not been informed by Allen of the pending nuptials. No marriage license had been filed as of Friday, according to Lake County marriage records.

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to Indiana Courts

Courts - More on "What Constitutional Rights Should Schoolchildren Have?" [Updated]

Updating this ILB entry from March 25th, see this preview, by Lyle Denniston of SCOTUSLaw Blog, of the oral argument next Tuesday in the case of Safford Unified School District, et al., v. Redding. A quote:

The Supreme Court, continuing to monitor how public schools deal with suspected substance abuse among students, will seek to clarify authorities’ power to personally search girls and boys, instead of their lockers or belongings. The case involves a strip search of a 13-year-old girl.

[Updated 4/19/09] See also this story today by David G. Savage of the LA Times, headlined "Strip-searches at schools go to Supreme Court: Savana Redding was strip-searched in the nurse's office because a vice principal suspected she might be hiding extra-strength ibuprofen; In an Arizona case, administrators were worried about campus safety, while the student just felt humiliated."

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to Courts in general

Courts - "Final Arguments of Supreme Court Term Filled With Big Cases"

So reads the headline to this useful article today by Tony Mauro of Legal Times.

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to Courts in general

Courts - "Helio free man after acquittal in Miami"

Updating earlier ILB entries from April 4th of this year and Oct. 4, 2008, the AP reports today:

MIAMI -- Brazilian race car driver and "Dancing With The Stars" champ Helio Castroneves was acquitted Friday of most charges that he worked with his sister and lawyer to evade more than $2.3 million in U.S. income taxes.

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to Courts in general

Ind. Decisions - Opinion re state employee email useage reclassified as "For Publication"

The ILB did a fairly long summary of the COA Not for Publication opinion Feb. 11th in the case of Garry Coleman v. Review Board of the Indiana Dept. of Workforce Development, and State Board of Tax Commissioners - see the entry here. Here are some additional quotes from the opinion:

We are reminded that emails last forever and can come back to haunt the writer. The DLGF hired Coleman as a systems analyst in June 2005. In November 2005, Coleman signed a document entitled “Information Resources Use Agreement” (“IRUA”), which was intended to govern use of State-provided technology by State employees. * * *
On January 25, 2008, the DLGF Commissioner sent Coleman a letter stating that his employment was terminated for violating the “de minimis” exception and for distributing inappropriate comments or messages via his DLGF email account. The letter listed six dates on which Coleman allegedly had violated these policies, and claimed he had wasted a total of sixteen hours sending improper or excessive emails. * * *
The DLGF, however, has failed to allege or prove that the extent to which Coleman used his DLGF email account for personal use made his continued employment “unacceptable,” which is the stated basis for skipping “progressive” discipline and proceeding directly to termination.
There might be a situation where email usage is so inordinate that it should be clear to any reasonable person that it exceeded a “de minimis” amount, thus justifying immediate termination. ... This is not such a case. What is in this record are ten email conversations that Coleman participated in over the course of many months. Coleman did not initiate many of them, and none of them were lengthy dissertations. * * *
On that point, we observe that the termination letter also alleged that Coleman sent “inappropriate” material through email at work. The ALJ did not address this basis for Coleman’s firing in his order. Perhaps this is because it is abundantly clear that to the extent the DLGF has a ban on sending “inappropriate” messages or items through email, the DLGF does not uniformly enforce that ban. The most explicit sexual material in the record is the emailed photograph appearing to depict two persons having sex atop a bridge. The DLGF employee who originally sent that photograph to numerous recipients, instead of being fired, was given a raise after Coleman was terminated.

This opinion, which was originally classified as Not-for-Publication when handed down by the Court of Appeals, see Ind. Appellate Rule 65(A), has now been reclassified as For Publication by Court order. From the docket:

2/11/09 2009 TERM
REVERSED AND REMANDED------BARNES, J. BAILEY, J. AND MATHIAS, J. CONCUR
MEMORANDUM DECISION/NOT FOR PUBLICATION
3/23/09 ***************OPINION CERTIFIED***************
4/16/09 ISSUED THE ENCLOSED ORDER:
4/16/09 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON FEBRUARY 11, 2009, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION, IS NOW ORDERED PUBLISHED
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE BAILEY, MATHIAS, BARNES, J.J., CONCUR. KM

Posted by Marcia Oddi on Saturday, April 18, 2009
Posted to Ind. App.Ct. Decisions

Friday, April 17, 2009

Ind. Decisions - Supreme Court decides second case today

In Bannister v. State, a 5-page, 5-0 opinion, Chief Justice Shepard writes:

A police officer on patrol ran a computer check on the license plate of a car that crossed his view at an intersection, and learned that the owner‟s driving license was suspended. The computer check also provided a physical description of the owner, and the officer later testified that this description approximated the characteristics of the driver whom he saw pass his view. The trial court held that the facts available constituted reasonable suspicion to warrant an investigatory stop under the Fourth Amendment. We affirm.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1 [Updated]

Regarding the Supreme Court opinion today in the case of In Re: T.S.; Indiana Dept. of Child Services, LaPorte County v. LaPorte County CASA, et al, (ILB entry here), which brought into play the new Appellate Rule 14.1 (Expedited Appeal for Payment of Placement and/or Services), how fast did it go? (First, take a look at Rule 14.1 itself, it is pretty stringent.)

Here is the Court of Appeals docket for the T.S. case, and here is the Supreme Court docket, so you may see for yourself.

Some entries from the Dockets:

1/23/09 "NOTICE OF APPEAL FILED"
2/10/09 ****NOTE: THIS IS AN EXPEDITED APPEAL PURSUANT TO APP.R. 14.1.*
2/16/09 ********CASE TRANSMITTED TO COURT******** AB 02/16/09
2/20/09 HAVING REVIEWED THE MATTER, TAKING INTO CONSIDERATION THE
EXPEDITED NATURE OF AN APPEAL PURSUANT TO APPELLATE RULE 14.1,
THIS COURT NOW FINDS AND ORDERS AS FOLLOWS:
1. APPELLANT, DCS, IS DIRECTED TO FILE WITH THE CLERK OF
THIS COURT ITS RESPONSE TO THE MOTION TO DISMISS FILED BY
APPELLEE CASA. THE RESPONSE MUST BE PHYSICALLY PRESENT IN THE
OFFICE OF THE CLERK OF THE INDIANA SUPREME COURT, COURT OF
APPEALS, AND TAX COURT NO LATER THAN NOON, LOCAL INDIANAPOLIS
TIME, ON WEDNESDAY, FEBRUARY 25, 2009.
2. APPELLEE CIRCUIT COURT'S MOTION FOR PERMISSION TO FILE AN
APPEARANCE IS GRANTED. THE CLERK OF THIS COURT IS DIRECTED TO
FILE THE APPEARANCE AS OF THE DATE OF TENDER.
3. THE CLERK OF THIS COURT IS DIRECTED TO FILE THE CIRCUIT
COURT'S APPELLEE'S MEMORANDUM AND APPENDIX AS OF THE DATE OF
TENDER.
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
3/12/09 2009 TERM
HAVING REVIEWED THE MATTER, THIS COURT NOW FINDS AND ORDERS:
1. CASA'S MOTION TO DISMISS IS DENIED.
2. THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT
THE CIRCUIT COURT'S DECISION TO DEVIATE FROM DCS'S
RECOMMENDATION TO IMMEDIATELY RETURN T.D.S. TO MOTHER'S
CARE AND CUSTODY. THUS, THE CIRCUIT COURT DID NOT ABUSE
ITS DISCRETION, AND THE CIRCUIT COURT'S SUPPLEMENTAL
ORDER IS HEREBY AFFIRMED.
3. DCS'S REQUEST FOR RELIEF UNDER INDIANA APPELLATE RULE
14.1 IS DENIED AND DCS IS DIRECTED TO COMPLY WITH THE
CIRCUIT COURT'S JANUARY 21, 2009 SUPPLEMENTAL ORDER,
INCLUDING PAYMENT FOR SERVICES, UNTIL SUCH TIME AS THE
CIRCUIT COURT'S ORDER IS MODIFIED OR VACATED.
---------------- PER CURIAM
ROBB, VAIDIK, JJ., SHARPNACK, SR. J.
3/19/09 DCS PETITION TO TRANSFER FROM INDIANA APPELLATE RULE 14.1
EXPEDITED APPEAL
3/20/09 ***********TRANSMITTED ON TRANSFER 03/20/09***********AB 3/20/09
4/17/09 CASE TRANSFERRED TO THE SUPREME COURT
SUPREME COURT CAUSE NUMBER 46S040904JV00160
4/17/09 APPELLANT'S PETITION FOR TRANSFER IS HEREBY GRANTED.
RANDALL T. SHEPARD, CHIEF JUSTICE KM
4/17/09 ISSUED THE ENCLOSED OPINION:
4/17/09 2009 TERM
WE AFFIRM THE JUVENILE COURT--------DICKSON, J.
SHEPARD, C.J., AND SULLIVAN, BOEHM, AND RUCKER, JJ., CONCUR.
ROBB, VAIDIK, J.J., SHARPNACK, SR.J., CONCUR. MS

[Updated a 6:12 PM] A reader writes:

I was happy to see your post about how fast the 14.1 DCS appeal went. Indeed, it flew. But why are the interests at issue (who pays for a placement) more significant in that case than in the Hamilton County adoption case that took more than a year to decide--or, for that matter, in a criminal case where the defendant is going to win and be released? Our rules on expedited appeals do not make a lot of sense to me.

Re "the Hamilton County adoption case", see the end of this April 11th ILB entry.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "What Would Arthur Miller Do?"

Above the Law is holding its First Ever Law Revue Video Contest. Check it out. My vote goes to the entry "What Would Arthur Miller Do?"

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to General Law Related

Ind. Decisions - 7th Circuit issues one Indiana case today, re child pornography

In U.S. v. Larry Smith (ND Ind., Judge Lorenzo), a 32-page, 2-1 opinion, Judge Manion writes for the majority:

Larry G. Smith pleaded guilty to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) after law enforcement officers discovered more than 3,000 images of child pornography on Smith’s computer hard drives, which had been set up to share the images over the internet. The district court sentenced Smith to 240 months’ imprisonment. Smith appeals his sentence. We affirm. * * *
[Judge Rovner's dissent begins on p. 21 of 32] There is no doubt that Larry G. Smith committed a heinous crime when he decided to collect and trade child pornography. There is no doubt that the images contained on his computer were of the most horrific kind. There is no doubt that he is a very disturbed young man. Unfortunately, there is also no doubt that the district judge seriously misstated the law regarding the role of the Bureau of Prisons (“BOP”) in determining release dates for federal prisoners. The majority seems to agree that the district court’s “under- standing” that the BOP had unfettered discretion to release prisoners early if BOP experts determined that the prisoner was cured is “incorrect.” Supra at 16. The majority finds that Smith has failed to demonstrate that the district court relied on this misunderstanding of the law in determining his sentence. I find it incomprehensible that such a misunderstanding could not influence a judge’s sentencing decision. The original exchange, which came after defense counsel stated he would like to address the defense expert’s testimony, is worth repeating in its entirety: [ILB - see p. 22-25 of the opinion] * * *
[E]ven defendants who commit the most abhorrent crimes deserve a sentencing decision that is not influenced by legal errors if we are to maintain the rule of law. In light of the district court’s legal error, which went uncorrected by the court for the remainder of the sentencing hearing, I believe we should vacate the sentence and remand for a new sentencing. Therefore, I respectfully dissent.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In State of Indiana v. Kelly Hunter , a 4-page opinion, Judge Najam writes:

The State appeals from the trial court's grant of Kelly Hunter's motion to suppress evidence. We do not reach the merits of the State's appeal, however, because the State did not timely file its notice of appeal. We dismiss. * * *

Whether there is a final, appealable order is a question of law and not delegated or left to the discretion of a party. Here, the State had thirty days from February 22, 2008, when the trial court granted Hunter‟s motion to correct error granting her motion to suppress evidence, to file its notice of appeal. Thus, the State's notice of appeal, filed on April 14, fifty-two days after the suppression order, was untimely as a matter of law.

In Michael Ashby v. State of Indiana , an 8-page case, Judge Kirsch writes:

In September 1999, Michael Ashby pleaded guilty to two counts of Class B robbery while armed with a deadly weapon1 under cause number 20D01-9904-CF-90 and to one count of the same offense under cause number 20D01-9903-CF-60. In this belated appeal, Ashby raises two issues, which we consolidate and restate as: whether the trial court erred when it sentenced Ashby to three consecutive twenty-year sentences following his 1999 open guilty plea. We vacate and remand for resentencing. * * *

While we understand that which the trial court sought to accomplish, and we recognize the value in those aims, namely, placing the burden on the defendant to prove himself worthy of a sentence modification or reduction, we are compelled to find that under Indiana law it was an abuse of discretion.

First, the sentencing scheme enacted by the legislature required the trial court to identify and balance aggravators and mitigators as they existed at the time of sentencing and to exercise its discretion to determine the appropriate sentence at that time. Second, the trial court on several occasions expressly recognized Ashby’s remorse, yet failed to recognize either the remorse or his open guilty plea as mitigating circumstances. The court’s statements relating to the absence of mitigating factors were inconsistent with its prior statements at the same hearing and constitute an abuse of discretion. Third, the trial court’s “earn a modification” approach was contingent on too many variables, including whether the same judge would be on the bench at the time Ashby was directed to write his letter to the court. Fourth, and perhaps most significant, is that although a trial court has the power to modify sentences under Indiana Code section 35-38-1-17, that power is severely limited by the requirement of the prosecutor’s consent after the passage of one year. Thus, the trial court could not legally do that which it was advising Ashby it would do (reduce his sentence) if Ashby took advantage of available educational and vocational opportunities while incarcerated. For these reasons, we find that the trial court abused its discretion when sentencing Ashby. We vacate and remand for resentencing with instructions that the trial court take into account Ashby’s remorse and his open pleas for which Ashby received nothing in exchange from the State.

Ahmed Habibzadah v. State of Indiana is an 11-page opinion, with a concurring opinion beginning on p. 7. The issue is whether the trial court properly denied Habibzadah's motion to dismiss criminal charges following the determination that he was incompetent to stand trial. The main opinion by Judge Barnes concludes:

Because it is possible that Habibzadah may be restored to competency and because he has not been confined for longer than the potential maximum sentence he faces, the trial court did not abuse its discretion in denying his motion to dismiss. * * * Under these circumstances, we cannot conclude that due process, which includes the concepts of equity and fundamental fairness, requires the dismissal of the charges against Habibzadah.

Conclusion. Although a trial court has the inherent and statutory authority to dismiss charges where the prosecution would violate a defendant’s constitutional rights to due process, the facts of this case do not warrant dismissal. We affirm.

BAILEY, J., concurs.
MATHIAS, J., concurs with separate opinion. I concur in the majority’s decision to affirm the trial court, but believe that our current criminal justice procedures are inadequate to consider and resolve issues presented by defendants suffering from long-term or permanent mental illness. I write separately to highlight the issues raised in this case regarding the dismissal of charges against a defendant who has been civilly committed because he is mentally incompetent to stand trial. * * *

Whether such a procedure is promulgated by the Indiana Supreme Court through its rule-making process or by the Indiana General Assembly through statute, it is time for the truly long-term, incompetent criminal defendant to have an earlier and intervening opportunity for a determination of his or her competency at the time of the crime alleged. Such a procedure convened soon after arrest, rather than years later when stale evidence and dim or non-existent memories are all that are left, or never, would best serve society and the defendant.

J.D. Berry v. State of Indiana - "A trial court is not required to issue a detailed sentencing statement when reinstating a portion of an already imposed sentence. We affirm. "

NFP civil opinions today (1):

Barbara Carlson and David Carlson v. Phillip R. Goodson and State Farm Mutual Automobile Company (NFP) - "We handed down our decision on June 3, 2008, and remanded the case to the trial court. Despite that holding, the Carlsons took no steps to obtain service of process on Goodson. A review of the CCS shows that their only actions were to strike a judge from the panel proposed after Goodson's motion for change of judge and to request a change of time and for telephonic attendance of the September 15 status conference. Although they claimed at the October 3 hearing that they needed court direction on how to properly obtain service of process on Goodson, they did not request such direction in the four months between our decision and that hearing. As such, the trial court did not abuse its discretion when it granted Goodson's motion to dismiss under Trial Rule 41(E). "

NFP criminal opinions today (9):

Raymond Roderick v. State of Indiana (NFP)

Alfonzo Richardson, Jr. v. State of Indiana (NFP)

Kristin Naval v. State of Indiana (NFP)

Michaelangelo Wells v. State of Indiana (NFP)

Ciara Miller v. State of Indiana (NFP)

James Huspon v. State of Indiana (NFP)

Steven R. Kincade v. State of Indiana (NFP)

Frank Price v. State of Indiana (NFP)

Robbie House v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1

In In Re: T.S.; Indiana Dept. of Child Services, LaPorte County v. LaPorte County CASA, et al, a 6-page, 5-0 opinion, Justice Dickson writes:

To provide an orderly and expedited procedure for appellate review of certain juvenile court decisions about placement recommendations made by the Indiana Department of Child Services ("DCS"), this Court promulgated Indiana Appellate Rule 14.1, which became effective January 1, 2009. Today's case presents the first appeal received under this new rule.

We hold that: (1) Rule 14.1 expedited appeals are available to the process of modifying dispositional decrees regarding child placement where a juvenile court does not follow DCS's recommendation, (2) the juvenile court must accept DCS's placement recommendations unless it finds by a preponderance of the evidence that the recommendation is "unreasonable" or "contrary to the welfare and best interests of the child," (3) a finding by the juvenile court that DCS's rec- ommendation is unreasonable or contrary to the child's welfare and best interests is reviewed on appeal for clear error, and (4) the juvenile court's placement determination in this case was not clearly erroneous.

T.S., a child, was removed from his mother's care because of allegations of physical abuse, found to be a Child in Need of Services ("CHINS"), and placed with his half-brother, K.S., in the foster home of K.S.'s paternal grandparents. After several months, DCS requested that T.S. be reunited, but the LaPorte Circuit Court, exercising jurisdiction as a juvenile court, decided it would be contrary to T.S.'s best interests to follow DCS's recommendation and imme- diately return him to his mother's care. The juvenile court found that T.S. should remain with the foster parents until the end of the school year.

DCS appealed the juvenile court's decision pursuant to Appellate Rule 14.1, challenging the court's placement order and contending that its recommendations had been neither unreason- able, based on the facts and circumstances of the case, nor contrary to the welfare or best inter- ests of the child. Both the juvenile court and the Court Appointed Special Advocate ("CASA") responded in support of the juvenile court's decision. The CASA also filed a motion in the Court of Appeals to dismiss the appeal on grounds that the juvenile court's decision was not within the category of rulings appealable under Appellate Rule 14.1. The Court of Appeals held that the juvenile court's ruling was subject to Appellate Rule 14.1 but found that the juvenile court "did not abuse its discretion in rejecting DCS's placement recommendation." In re T.S., 902 N.E.2d 332, 333 (Ind. Ct. App. 2009). DCS sought transfer, asserting that the Court of Appeals used the incorrect standard of appellate review. We granted transfer.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Law - "Considering Bankruptcy Law? Proceed With Caution"

Here is an interesting article, from the Texas Lawyer, written by Harley Caudle. A few quotes:

If the practice of law is full of potholes, then the practice of bankruptcy is full of punji pits. Think of all the intricacies of bankruptcy law as the sharpened sticks at the bottom of these traps. Miss one of the legion of deadlines, and the client loses valuable rights. File a petition without the debtor going through the required pre-petition credit counseling, and the judge will dismiss the case. Fail to timely object to a debtor's Chapter 13 plan that does not provide adequately for the treatment of a vehicle loan under 11 U.S.C. §1325(a)(9), and the creditor may lose thousands of dollars that otherwise would have been paid in the plan.

The U.S. Bankruptcy Code is not user friendly, and it does not lend itself to figuring out its intricacies alone. Even with help from experienced practitioners and diligent self-study, learning to practice bankruptcy law can be an intellectually humbling experience. * * *

A little known fact about bankruptcy is that it is not just for the bankrupt. In some situations it is easier to accomplish a business transaction under the Bankruptcy Code than outside of it. For example, a sale of assets in bankruptcy is much less likely to have any successor liability attached. If an asset purchaser can avoid becoming liable for the seller's obligations, bankruptcy may be the right choice.

Imagine a client that wants to purchase the equipment of a business currently under investigation by the Environmental Protection Agency for allegedly transporting waste to an illegal dump site. If successor liability attached to the equipment sale, the purchaser could become liable to the EPA for the seller's prior conduct. If the deal occurs in the context of the seller's bankruptcy, the client could obtain the asset without also acquiring the seller's obligations. Because negotiations play such a big role in this kind of deal, an attorney interested in bankruptcy law should brush up on negotiating skills. * * *

The bankruptcy bar is relatively small. Litigators with a general practice probably can get away with occasionally being unnecessarily difficult. Unless there are only a handful of trial lawyers in the community, the odds are such lawyers will not have to deal with the same opposing counsel again.

That is not the case in bankruptcy practice, which is somewhat of a niche with relatively few full-time players. The attorneys involved often spend years dealing with the same opposing counsel over and over again.

The best way to ensure a difficult path to a successful bankruptcy practice is to get branded a jerk early on. Negotiations will become difficult and time-consuming. Referrals will be slim to none.

Also, the bankruptcy judge, who may have practiced in the jurisdiction before taking the bench and personally knows many of the practicing attorneys in the local bankruptcy bar, will hear rumblings about a new, uncooperative bankruptcy attorney in town. Nothing good will come of that.

Anyone considering a bankruptcy practice should do a lot of homework first. Just because any licensed attorney admitted to the applicable federal district court can file a bankruptcy pleading, that does not mean he or she should.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to General Law Related

Ind. Law - "State warns of home-theft threat: County recorders want law tightened on deed filing"

Dan Stockman reports today in the Fort Wayne Journal Gazette:

The Indiana attorney general cautioned homeowners Thursday against a new mortgage fraud that lets thieves steal homes and walk away with thousands of dollars in fraudulent loans.

Attorney General Greg Zoeller joined the Indiana Recorders Association and the Association of Indiana Counties in Indianapolis to publicize the scheme.

The Journal Gazette exposed the practice in an April 5 story by “stealing” the Lincoln Tower in downtown Fort Wayne in less than an hour, identifying the new property owner as Johnny Appleseed.

The newspaper prepared a fake deed transferring ownership in the iconic building, which Allen County Recorder John McGauley said his office would have no choice but to accept.

The newspaper did not record the document and left off key pieces to ensure it could not be recorded, so the 300-foot-tall tower’s ownership was never in jeopardy. But the example showed how easily the crime can be carried out.

“County recorders’ offices have always operated with a high degree of customer convenience in recording deeds and other notarized documents, and, indeed, state law does not allow them to demand proof of identification from customers,” Zoeller said during Thursday’s announcement. “Criminals are exploiting a loophole to fraudulently transfer ownership of properties in an effort to steal money from lenders.”

Thieves are not interested in the property they steal – they’re interested in showing ownership so they can obtain a fraudulent loan and disappear with the money. That can leave the true property owner holding the bag.

“The actual homeowners, through no fault of their own, are at risk of losing their home to foreclosure,” Zoeller said. “Correcting the problem and clearing the cloud off the title could cost the homeowners thousands of dollars.”

McGauley said the state’s recorders are looking at legislation similar to a law in California that would require a thumbprint along with a notarized signature. A similar requirement takes effect in Illinois this summer.

A side-bar states: "The Allen County Recorder’s Office offers Property Fraud Alert, a free service that notifies you by phone or e-mail if documents are recorded with your name on them." Access it here.

Here is Attorney General Greg Zoeller's press release, issued April 16th.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Indiana Law

Courts - Still more on: Specialty plates questions being heard in 3rd Circuit

This time it is the 7th Circuit. Updating this ILB entry from April 15th, Howard Bashman of How Appealing this morning has this entry headed "Thomas More Society Petitions U.S. Supreme Court to Allow 'Choose Life' Illinois License Plates; Petition says U.S. Seventh Circuit decision violates Illinois Citizens' free speech rights."

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Courts in general

Environment - Two wind farm groundbreakings in Indiana this week

The ILB has had a number of entries about wind farms. Today Tom Spalding reports in the Indianapolis Star:

Indianapolis Power and Light and enXco will break ground at 10:30 a.m. today on a 106 megawatt wind-turbine farm in Fowler, Ind., known as the Hoosier Wind Project.

It's the second such alternative-energy farm to get kicked off in the state this week.

The 200-megawatt Meadow Lake Wind Farm got underway Tuesday in White County.

IPL is adding carbon-free electricity into its "generation portfolio" and will purchase the power generated under a 20-year agreement. IPL will buy enough energy to service about 29,000 homes with clean, emission-free electricity.

The American Wind Energy Association announced earlier this week that Indiana currently boasts the fastest wind power growth rate in the nation based on percentage. It has expanded to 130 megawatts from zero in 2008, completing an additional 400 megawatts in the first quarter of 2009, and breaking ground on the two new projects as this second quarter begins.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Environment

Courts - "A Good Time to Be a Bankruptcy Lawyer"

Todd J. Zywicki, law prof and bankruptcy expert, has some interesting remarks today at The Volokh Conspiracy, in an entry headed "A Good Time to Be a Bankruptcy Lawyer." A sample:

There are several structural peculiarities in bankruptcy that tends to push fees in an upward direction.

First, as Lynn LoPucki stresses in his book Courting Failure, forum-shopping in bankruptcy is easy and prevalent. And one of the margins on which a debtor can forum-shop is the receptiveness of bankruptcy judges in a given district to generous awards of attorneys' fees. So a judge that takes a hard-line on fees, such as capping fees at a local prevailing rate or scrutinizing the necessity of expenses closely, will soon discover that no big cases are filed in his court. Firms like Weil or Kirkland won't accept a case unless they get these rates. So a debtor given a choice between a venue that pays full fees versus one that limits fees will choose the one that pays full fees because otherwise it won't get the lawyers of its choice.

Second, fees are paid from "the estate" rather than a typical client. There is no inherent incentive for the debtor-in-possession acting on behalf of the estate to seek to minimize fees. Creditors can object to excess fees, but the lawyers for the creditors committee are also paid from the estate. As a result, if the creditors' lawyers object to the fees of debtor's counsel, debtor's counsel later may object to the fee requests of the creditors committee's lawyers. Thus, they are repeat-players and tend to adopt a "go along to get along" attitude toward each others fees, rather than vigorously challenging excessive fees.

Third, unlike a traditional client, bankruptcy lawyers don't really negotiate their fees with the debtor in the case. Because the fees are paid from the estate, the debtor has no incentive to try to cut down hourly rates or to demand volume discounts or the sort of thing that occurs in regular legal practice.

All of these factors tend to exert an upward hydraulic pressure on fees in bankruptcy. Thus, while one might expect that the overriding principle of fees and expenses in bankruptcy cases would be one of "economy" (which was the principle until 1978), today bankruptcy lawyers tend to push the upper-end of fees and expenses for lawyers.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Courts in general

Ind. Law - "Child ombudsman bill evolves: Family rights advocates claim Senate weakened powers"

On April 14th the ILB quoted from a story by Mary Beth Schneider of the Indianapolis Star that began:

An ombudsman may give new oversight to the state Department of Child Services after all, as an amendment creating the position was added Monday to the proposed state budget in the Senate.

Today Eric Bradner of the Evansville Courier & Press writes:

An independent ombudsman would review complaints about Indiana's Department of Child Services under legislation state lawmakers revived this week.

But family rights advocates say the Senate watered down the ombudsman's powers, and the new oversight would do little good.

Those advocates hope now that a joint House-Senate conference committee will strengthen the overseer's ability to provide independent reviews for children and families affected by the department's decisions.

The House unanimously approved a bill to create an ombudsman's bureau within the department in a move aimed at providing the state's understaffed child services agency a backstop to protect against ill-advised decisions and ultimately curb Indiana's high rate of child abuse deaths. * * *

The Senate Judiciary Committee allowed the Department of Child Services to rewrite much of the bill. Family rights advocates say the altered version does not allow the ombudsman to investigate complaints related to the department's interaction with children's parents or family members.

After clearing that committee, the bill went to the Senate Appropriations Committee because it authorized new spending to pay for the ombudsman bureau. There, committee Chairman Luke Kenley, R-Noblesville, refused to bring it to a vote.

After an outcry, the Senate revived the legislation by amending the bill into the state budget, which includes $142,000 each year to fund the position.

"When it came out of the House, it was really good legislation," said Dawn Robertson, spokeswoman for the Indianapolis family rights group HonkForKids. "Now, the Senate has diluted it to the point that it's going to be ineffective if these amendments stay in it."

Robertson said most complaints come from parents who allege the Department of Child Services should not have removed children from their homes. By removing the ombudsman's ability to investigate claims regarding how the department interacts with families, the legislation leaves those parents with no recourse, she said.

Carole Davis, who heads the Evansville family rights group Kiddos First, said the rewritten legislation is "going to protect the (Department of Child Services) instead of the kids."

She said a strong ombudsman could help family members who are afraid to report the problems they see for fear that affected parents will no longer allow them to see the child.

In order for the amended version of the legislation to win passage, it must survive conference committee negotiations as the Democratic-ruled House and Republican-led Senate hash out a final budget agreement.

[More] The C&P also has an editorial today on the ombudsman bill, headed "Ambushed."

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Indiana Law

Ind. Courts - "Killer wins judge's permission to marry in jail"

From a brief story today in the Gary Post Tribune reported by Ruth Ann Krause:

Despite facing hundreds of years in prison for killing his wife, daughter and a neighbor, Steven Craig Allen got a judge's permission to marry.

Lake Superior Court Judge Clarence Murray last week approved Allen's request.

Allen, 35, was married to Christy Gipson Allen, 31, when he killed her, their 2-month-old daughter, Javonae, and Prabhat Singhal, 22, an upstairs neighbor at the Tanglewood apartments by setting fire to their building at 6620 Tanglewood Drive, Hammond. * * *

Jurors convicted Allen on March 27 of three counts of murder in perpetration of arson, and two arson counts in the July 2, 2005, crime. Allen faces 165 to 265 years in prison at his May 14 sentencing.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Indiana Courts

Ind. Courts - Clark County Circuit Court's focus turns to mental health cases

A long and interesting story by Matt Thacker in the New Albany News & Tribune begins:

It took Clark County Circuit Court Judge Dan Moore all of seven hours as judge to realize he needed a plan to deal with mental health cases.

Before he had even made it to the courthouse for his first day on the bench, Moore received a call at home at 7 a.m. concerning a mental health patient. So far this year, the Circuit Court has opened 38 new mental health cases. Moore — who is assigned to handle all such cases — said he receives calls two to three times a week at home about mental health concerns.

“This is very important when we’re talking about restricting someone’s freedom,” Moore said.

To keep a person against his or her will, the judge must order an emergency 72-hour detention. After further hearings, that can turn into a 10-day or 90-day hold or a regular commitment.

On Wednesday, Moore and others in the legal field met with representatives from local facilities — such as Wellstone Regional Hospital, LifeSpring Mental Health services and Clark Memorial Hospital — to explain new procedures and discuss other concerns.

About an hour before the meeting began, a couple came in and wanted to have their son admitted. Officials in the mental health community say that is a regular occurrence.

“How do you believe the relative, and what do you do when the relative changes his mind the next day?” Moore asked.

One change Moore instituted is that once a 72-hour hold has been placed on a patient, the patient cannot be released without a doctor’s approval or a court order.

One of the purposes of the meeting was to show new forms that will be used by health care professionals. Moore said the forms that had been used were outdated and used terminology that is no longer used in the law.

The meeting also was a forum for people to discuss concerns, such as a shortage of places to hold people. The Michael L. Becher Adult Corrections Complex is not equipped to deal with mental patients, which leads Sheriff Danny Rodden to urge certain inmates to be moved through the system more quickly.

“We really don’t have the facilities to take care of people who are one moment mentally ill, at the next moment competent to stand trial,” Rodden said.

Rodden said they have two padded cells. If a person is on suicide watch, they will be watched on camera and a guard comes by every 15 minutes to check on them.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to Indiana Courts

Law - More on: What can law schools do to help graduating students?

Updating this ILB entry from April 15th, see this new entry from Above the Law that begins:

Just yesterday, we were able to report on Northwestern University School of Law taking the initiative to help deferred 3Ls. Today we've learned that UCLA is also stepping up to the plate.

Posted by Marcia Oddi on Friday, April 17, 2009
Posted to General Law Related

Thursday, April 16, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Devone Moore v. Damon Moore (Marion Sup. Ct., Judge Certo), a 13-page opinion, Judge Robb writes:

DeVone Moore appeals the trial court’s issuance of an order for protection. For our review, DeVone raises four issues, which we consolidate and restate as whether the trial court properly issued the protective order in accordance with the Indiana Civil Protection Order Act (“CPOA”), Indiana Code chapter 24-26-5. Concluding the order for protection is defective, we remand with instructions. * * *

The trial court specifically found that DeVone proved by a preponderance of the evidence that domestic or family violence had occurred sufficient to justify an order of protection and that Damon represents a credible threat to DeVone’s safety, and the evidence supports these findings. The only question, then, is whether the trial court granted DeVone the protection she sought and the protection necessary to bring about a cessation of the violence or threat of violence. * * *

[Contact Between the Parties] Initially, we note that the trial court made reference to an alternative “no violent contact order.” No standard form for such an order has been created by the division of state court administration, and there is no mention of such an order in the CPOA, in Marion County’s local rules, or in the Protection Order Deskbook.8 In addition, the trial court issued an order for protection using the standard form authorized by the CPOA. Not only does the trial court’s discussion of this alternative order confuse us, it obviously confused DeVone, who had difficulty understanding the relief being offered and communicating the relief she sought. * * *

The trial court’s order does not adequately address DeVone’s concerns with continual harassment and annoyance from Damon regarding the prospect of reunifying, or her concern that he not be allowed to simply stop by the apartment anytime he likes. We hold that the order for protection does not provide the relief necessary to bring about a cessation of the violence or threat of violence as required by Indiana Code section 34-26-5-9(f). Therefore, we remand to the trial court to enter an order including the provisions in paragraphs two, prohibiting communication,10 and three, requiring Damon to stay away from DeVone’s residence11 and place of employment, of the standard form – PO-0112, Order for Protection. * * *

[Parenting Time] Based on the increased level of protection ordered above, the trial court’s order should include terms for unsupervised parenting time, including a provision for the exchange of the child in a neutral or public location. Therefore, we remand to the trial court to include terms for unsupervised visitation between Damon and the couple’s daughter with input from both parties.

[ Brady Disqualification ] Although the trial court’s order includes the boilerplate language preventing Damon from purchasing, receiving, or possessing a firearm, the trial court omitted the specific provision (paragraph eight) of the standard form, which states: “The Respondent is prohibited from using or possessing a firearm, ammunition, or deadly weapon.” In addition, the trial court erroneously checked no to the provision asking if the respondent is Brady disqualified, on the cover sheet. Therefore, we remand to the trial court to include paragraph eight of the standard form in its order and to check “yes” in the Brady disqualified box on the cover sheet. * * *

The trial court’s order of protection is erroneous in that it does not provide the protection necessary to bring about a cessation of the violence or threat of violence, it fails to address the issue of parenting time, and it fails to implement the Brady law’s prohibition on the purchase, receipt, or possession of a firearm by Damon. * * * Remanded with instructions.
___
A lengthy footnote 7 begins "Our review of this case has uncovered an issue of possible confusion regarding the issuance of protective orders.."

NFP civil opinions today (0):

"No standard form for such an order has been created by the division of state court administration, and there is no mention of such an order in the (Indiana Civil Protection Order Act), in Marion County's local rules, or in the Protection Order Deskbook."

NFP criminal opinions today (6):

Rio P. Harper v. State of Indiana (NFP)

Vanessa Thompson v. State of Indiana (NFP)

Brandon French v. State of Indiana (NFP)

Brian Williamson v. State of Indiana (NFP)

Charles Rivers v. State of Indiana (NFP)

Darrell Avery v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Its legal battle lost, library may still have to pay more"

Updating this ILB entry from yesterday, Jon Murray of the Indianapolis Star has a much-expanded report today on yesterday afternoon's jury decision. It begins:

Staring down overruns that topped $50 million on a marquee project, the Indianapolis library system sunk millions more into a legal fight for redemption. The boldest bet ended in a new fiasco Wednesday.

After a five-week trial involving the last holdout, a New York-based engineering firm, the Indianapolis-Marion County Public Library's struggle to win $24.5 million in damages resulted in the firm being cleared of fraud -- and the library on the hook, perhaps, for another $700,000.
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Many of the dozen or so contractors targeted by the library for their role in the bungled project to renovate and expand the Downtown Central Library have signed settlements. But Thornton Tomasetti defended its design work vigorously to the Boone County jury against accusations that it had misrepresented the reasons behind design changes later tied to defects in the project's underground garage.

"They got it right," said Daniel A. Cuoco, Thornton Tomasetti's president and chief executive officer, who was at the Lebanon courthouse for the verdict. "They were able to see through the smokescreens and false allegations."

The Library Board will begin to consider its options at a meeting tonight.

The legal effort has recouped about half of the project's overruns through settlements worth more than $25 million, including $21.5 million in payments.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - More on: Ex-Marion County prosecutor's employee pleads guilty in fatal DUI case

Jon Murray has updated yesterday's Indianapolis Star story (ILB entry here). The story today concludes:

The May 2007 crash was Record's second in less than a year. He also crashed an SUV into a parked vehicle after leaving a bar in October 2006 -- at first reporting his SUV stolen, police said, but later admitting he had been driving it at the time of the crash and left the scene.

He was never charged with leaving the scene of an accident. But Record, who had just begun working in Marion County Prosecutor Carl Brizzi's office, was forced to resign after he changed his story to police.

Two months later, Record started a job with the Indiana State Department of Health as a staff attorney, making $40,000 a year. He was fired from that position after the crash that killed Cash.

Since the incident, Record has practiced law in Evansville.

From earlier in today' story:

Record had left Brad's Brass Flamingo after sharing pitchers of beer and shots with a stripper, police said.

After running a red light at Southeastern Avenue and Pleasant Run Parkway, his BMW plowed into Cash's truck, nearly splitting it in two. Police said Record was traveling at 60 mph in a 35-mph zone.

Cash, a father of two, died at the scene.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Law - Still more on: Abortion requirements re hospital admission privileges heard at county level now proposed as state legislation

SB 89, which the ILB last wrote about on April 8th, yesterday passed 3rd reading in the second house.

From Niki Kelly's report in the Fort Wayne Journal Gazette:

There were harsh words and even a few tears during debate on a measure originally aimed at abortion doctors that passed the Indiana House 73-20 late Wednesday night.

Senate Bill 89 would require all health care providers performing surgical procedures in Indiana to have admitting privileges at a nearby hospital.

And women seeking abortions would be told that a fetus might feel pain during the procedure.

“What this bill is about is patient safety,” said Rep. Matt Bell, R-Avilla.

“This is an incredibly strong public policy statement by this General Assembly; … it’s the right statement to make when we care about the quality of care of patients.”

But others contested the medical evidence regarding fetal pain and even questioned the motives of the sponsor of the legislation.

“Under the surface, this bill is a pathway to denying women control over their own bodies,” said Rep. Gail Riecken, D-Evansville. * * *

And Rep. Vanessa Summers, D-Indianapolis, said she was speaking for several of her female colleagues who were too upset to talk or couldn’t speak publicly because it would hurt them politically.

“I stand up for the women in this House because our numbers are growing and it’s not always going to be this way,” she said, talking pointedly to the male lawmakers. “In this lifetime, you are going to have to listen to what happens to us and what we say and what we feel.”

The effective date for the bill is July 1, which could make it difficult for some doctors to continue practicing because the process for seeking privileges at some hospitals takes three to four months.

There are nine abortion clinics in the state, in five counties. Of the seven doctors currently performing abortions in Indiana, only one, in Indianapolis, has hospital privileges, according to testimony.

From Eric Bradner's story in the Evansville Courier & Press:

Supporters of legislation that requires doctors who perform abortions to have admitting privileges at nearby hospitals said it is a positive step for Hoosiers' health.

But opponents of Senate Bill 89, which was approved by the Indiana House on Wednesday night, criticize it as curtailing women's abortion rights.

The legislation mirrors a local ordinance passed last year by the Vanderburgh County Commissioners.

Amendments made to the Senate Bill on Tuesday expanded the admitting privileges requirement to include all surgical procedures, and it also would require women to be informed that the fetus might feel pain.

The bill was approved by a 73-20 margin.

Rep. Gail Riecken, D-Evansville, drew applause from female Democratic representatives for impassioned remarks she delivered on the House floor opposing the bill.

Riecken called the bill "a pathway to denying women control over their own bodies," and said she finds the fetal pain provision particularly distasteful because it is not backed up by medical evidence.

Bill Ruthhart writes in the Indianapolis Star:

Indiana women could have less access to abortions under legislation passed by the Indiana House on Wednesday night that would require doctors who perform the procedure to have admitting privileges at a hospital. * * *

Critics argued it effectively could halt abortions in the state, because few physicians performing abortions in the state have admitting privileges at a hospital. It typically takes a doctor several months to get admitting privileges, they argued, if a hospital chooses to grant them at all.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Indiana Law

Ind. Courts - "Doing the Old Courthouse justice: Bar association raises more than $230,000 for renovations"

Jimmy Nesbitt reports today in the Evansville Courier & Press:

The Evansville Bar Association has raised more than $230,000 to renovate the Superior Courtroom in Vanderburgh County's Old Courthouse. The ornate courtroom is regarded as one of the grand spaces in the 119-year-old building.

Work will begin late this year to refinish the wooden floor, repair damaged marble and make other improvements. When completed, the courtroom will be used for teen court, memorial services, law day functions and other activities, said Kelley Coures, president of the Old Courthouse Foundation.

The project is estimated to cost about $300,000. Coures hopes it is complete by 2011, the 100th anniversary of the bar association.

The bar association has raised money through private donations, mostly from local attorneys and their families, said Dan Carwile, chair of the Old Courthouse Superior Courtroom Restoration Committee. Their goal is to raise $300,000 by Labor Day.

Carwile and Coures announced their plans Wednesday in the courtroom before a group comprised mostly of local attorneys.

The Old Courthouse was built between 1888 and 1890 at a time when Midwestern cities were defined by courthouses, churches and grain silos, "reflecting different pieces of our lives," said Indiana Chief Justice Randall T. Shepard, who attended the gathering.

See photo of the courtroom.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Indiana Courts

Ind. Courts - Prosecutor Mark McKinney faces more accusations

Rick Yencer has this story today in the Muncie Star-Press.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Indiana Courts

Ind. Decisions - 7th Notes Split Re When a Copyright Registration Application is Complete

Yesterday's 7th Circuit decision in the case of Angela Brook-Ngwenya v. Indpls Public Schools (ILB summary) is highlighted today in Split Circuits ("A blog dedicated to tracking developments concerning splits among the federal circuit courts")

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Bloomington utilities not immune from liability

Yesterday's Court of Appeals decision in the case of City of Bloomington Utilities Department v. Misty Walter, Micky Day, et al, is the subject of a story today ($$) in the Bloomington Herald-Times reported by Mercedes Rodriguez:

Owners and tenants of a rental home that was flooded with 300 gallons of sewage can ask for their day in court against City of Bloomington Utilities.

An Indiana Court of Appeals ruling handed down Wednesday says CBU was not immune from liability in the incident, which happened in 2005 at a home on Hillside Drive owned by Hernan and Leslie Cadavid. According to court documents, a mass of tree roots and grease inside a sewer pipe are suspected to have caused raw sewage to flow into a ground-level apartment inside in the home. One of the tenants, Misty Walter, told the H-T in 2006 that the flood cost her $30,000 in lost possessions and wages, and that she and fellow tenant Micky Day were homeless for a month afterward.

Court documents say by the time the blockage had been cleared, “the property within the apartment had been severely damaged by sewage.”

The city of Bloomington’s legal department represents the utility. Corporation Counsel Kevin Robling said they would take some time to analyze the decision “and then we’re going to decide whether to appeal the decision to the Indiana Supreme Court or go to trial.”

John Shean, one of the attorneys for the Cadavids, Walter and Day, says the ruling is “a good victory for normal folks, just regular people. And we hope that it lets people know that they do have some rights.”

CBU flushes the city’s sewer pipes yearly and had equipment that can cut tangles of tree roots out from the inside of pipes. Shean says city utilities knew before the incident that the pipe in question had root blockages.

The original complaint was filed on March 21, 2007. CBU asked for a summary judgement in its favor and was denied. The utility held that the decisions it made as a government entity were immune from liability. The appeals court found that CBU’s pipe cleaning procedures were actions in which employees would “exercise professional judgment,” and could be held liable.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Stubborn Fees Case May Have Met Its Match in 7th Circuit"

The 7th Circuit decision in Ingersoll v. Baise & Miller, an Illinois case which the ILB mentioned yesterday (here- 2nd case), is the subject of a story today in The National Law Journal, by Lynne Marek.

Posted by Marcia Oddi on Thursday, April 16, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "St. Joe County judges' election bill gets Senate OK"; plus some observations from the ILB [Revised]

Updating earlier ILB entries, including this one from yesterday, Jeff Parrott of the South Bend Tribune has a lengthy story today on yesterday's Senate action:

A bill that would make St. Joseph Superior Court judges popularly elected for the first time in 35 years cleared another legislative hurdle Wednesday when it passed the Senate 35-15.

The bill [HB 1491], authored by state Rep. Craig Fry, D-Mishawaka, now has cleared both chambers of the General Assembly, after passing the House 88-3 on Feb. 2. Its Senate passage came on the final day that House bills could be approved by that chamber.

But Fry said he was not ready to celebrate yet.

"It's another good sign the bill will become law, but it has a way to go," Fry said.

That's because an amendment added by Senate Republicans would create a new three-judge Court of Appeals panel, something strongly opposed by House Democrats, including Speaker Pat Bauer, D-South Bend, Fry said.

The bill now will go to a conference committee, where leaders from both parties will try to forge a compromise.

Wednesday, April 15, 2009

Ind. Decisions - Ex-Marion County prosecutor's employee pleads guilty in fatal DUI case

The ILB has had numerous entries on the Terry J. Record drunken-driving with fatality case,

Here is the initial entry, from May 7, 2007, headed "Ind. Courts - Two young attorneys in different parts of the state in court for drug/alcohol related charges." Two stories about the Record arrest are quoted.

Also quoted is the story of Teresa Perry, a young "Evansville attorney facing eight counts related to possessing and distributing methamphetamine." She plead guilty April 16, 2008, to some of the counts.

Perry was sentenced on May 28, 2008 to "a total of six years in the Indiana Department of Correction.."

Record moved to Evansville, where he continued to practice law, according to this comprehensive entry quoting a story from the July 24, 2008 Evansville Courier & Press:

For now, Record's license to practice law remains in good standing. The agency that investigates lawyer misconduct, the Indiana Supreme Court Disciplinary Commission, is aware of Record's felony charges, but it does not take action against an attorney's license until charges are concluded, commission attorney Robert Shook said.

A January 17, 2009 ILB entry reports that:

A former state attorney facing pending charges in a fatal drunken driving crash was sent back to Marion County Jail this afternoon for consuming alcohol, violating the conditions of his release.

This afternoon Jon Murray reports in the Star:

A former state attorney pleaded guilty this morning in a drunken-driving case brought after he left an Indianapolis strip bar and caused a fatal crash.

Terry J. Record, 28, pleaded guilty to a Class C felony charge of operating a vehicle while intoxicated, causing death. A special prosecutor plans to dismiss a more serious charge because of evidence problems.

Record faces two to eight years in prison at sentencing June 2, though Indiana law allows the judge to suspend all or part of the sentence. * * *

Cash’s family attended today’s hearing and said they hoped Record’s sentence would include jail time.

“I’m just glad he finally realized he did something wrong,” Terry Cash, his widow, said outside the courtroom.

Record’s plea agreement with special prosecutor Barry Brown will result in the dismissal of a reckless driving charge and a more severe Class B felony drunken driving charge that was based on a blood-alcohol level of at least 0.15.

Brown, a former Monroe County prosecutor, said a recent blood test result showed a lower result than an initial test that showed Record's alcohol content to be right at or above 0.15. That gave Record’s attorney, David Lewis, an even larger opening to challenge the more serious charge at trial with expert testimony.

But neither side disputed that Record’s blood-alcohol content exceeded 0.08, the level at which an Indiana driver is considered drunk and the basis for the Class C felony.

Record’s felony conviction makes his law license vulnerable to disciplinary action from the Indiana Supreme Court.

After he was charged in Cash’s death, the Indiana State Department of Health fired Record from his job as a staff attorney. He also had worked for the Marion County prosecutor’s office, resulting in the appointment of the special prosecutor. Since the incident, Record has practiced law in Evansville.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on "Jury begins deliberations in Central Library fraud lawsuit"

Updating this entry from this morning, Jon Murray of the Indianapolis Star is reporting this afternoon that the library has lost its lawsuit. The story begins:

A Boone County jury has found in favor of an engineering firm in a lawsuit brought by the Indianapolis library system over the troubled Central Library project.

The verdicts, returned this afternoon, came after a trial lasting five weeks at the courthouse in Lebanon. The Indianapolis-Marion County Public Library had accused New York-based Thornton Tomasetti of fraud and asked the jury to award $24.5 million in damages, plus an equal amount in punitive damages.
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But today, the jury rejected the library's claims of fraud and constructive fraud, awarding no damages. The jury found in Thornton Tomasetti's favor on a counterclaim for $712,000 in unpaid fees for work on the project.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Senate passes bill to abolish merit selection of judges in St. Joseph County [Updated]

HB 1491, which would abolish merit selection of judges in St. Joseph County, plus create a 6th panel for the Court of Appeals, passed the Senate this afternoon 35-15.

Here is the digest to the current version of the bill:

St. Joseph superior court judges. Requires the nonpartisan election of superior court judges in St. Joseph County. Continues the terms of the St. Joseph superior court judges in office on June 30, 2009, until the date the judges' terms will end under the law in effect on June 30, 2009. Provides that a judge or a candidate for judge of the Saint Joseph superior court may not accept certain political contributions. Repeals provisions concerning judicial retention elections in St. Joseph County. Establishes the Sixth District of the court of appeals of Indiana as of January 1, 2011. Provides that the entire state constitutes the Sixth District.

What happens now? The bill goes back to the House, which can concur in the version adopted by the Senate, or dissent. In the latter case, the bill would then go to conference committee.

The Senate Roll Call, #381, which will list how each senator voted, isn't yet available. Check back.

Here is how the members of the House voted on the bill back on Feb. 12th. The vote then was 88 yeas, 3 nays, 5 excused, and 4 not voting.

[Updated at 3:29 PM] Here is the Senate rollcall.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Courts

Law - What can law schools do to help graduating students?

From Above the Law, a great entry this afternoon by Elie Mystal that begins:

Northwestern University School of Law has stepped up to help law students harmed by the terrible economy. We now have the full memo that details all the steps the school is taking to actually help students with the misfortune of graduating during the worst legal economy in recent memory.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to General Law Related

Courts - "An Argument For More Female Justices"

By Dahlia Lithwick, contributing editor for Newsweek and senior writer for Slate.com. Check here for her 17 minute NPR Talk of the Nation essay.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In City of Bloomington Utilities Department v. Misty Walter, Micky Day, et al, a 13-page opinion, Judge Kirsch writes:

The City of Bloomington Utilities Department (“CBU”) brings this interlocutory appeal challenging the trial court's denial of its motion for summary judgment. CBU raises the following restated issue: whether the trial court erred in failing to find that CBU is immune from liability under the Indiana Tort Claims Act, Indiana Code chapter 34-13-3 (“ITCA”), for damage caused by sewage flowing from its sewer pipes into the home of one of its customers. We affirm and remand. * * *

Here, Homeowners alleged that CBU negligently maintained and controlled the sewer lines by failing to clear severe root invasion from the sewer pipes. As a proximate result of this negligence, the Homeowners' sewer line became blocked, sewage flowed into the home, and the sewage caused damage to the Homeowners' real and personal property. Appellant’s In its motion for summary judgment, CBU argued that its conduct qualified for governmental immunity as a discretionary function under Section 3 of the ITCA. In the alternative, CBU argued that it had insufficient notice and opportunity to remedy the problem in the sewer line. The trial court denied CBU's motion for summary judgment. * * *

CBU asserts that, contrary to the trial court's findings, it is entitled to immunity for the discretionary function of enacting and following its Capacity, Management, Operations and Maintenance (“CMOM”) Program—a program that set forth guidelines for CBU to inspect, clean, and repair the City's sewer system. * * *

The issue of whether an act is discretionary and therefore immune from liability is a question of law for the trial court to resolve. The essential inquiry is whether the challenged act is the type of function that the legislature intended to protect with immunity. Discretionary immunity is provided to governmental units for undertaking a policy-oriented decision-making process. * * *

We find that our decision today is best guided by our Supreme Court's reasoning in Greathouse v. Armstrong, 616 N.E.2d 364 (Ind. 1993) and this court's decision in City of Valparaiso v. Defler, 694 N.E.2d 1177 (Ind. Ct. App. 1998), trans. denied. * * *

Here, Homeowners alleged that CBU “negligently planned, designed, installed, operated, maintained, and controlled the sewer lines serving [the Homeowners] . . . .” Specifically, Homeowners alleged that CBU's failure to exercise reasonable care in the maintenance of its lines resulted in severe root blockage of its lines, which in turn caused a sewage back-up. CBU bore the burden to show that a policy decision, consciously balancing risks and benefits, took place regarding the method by which CBU cleaned and maintained its sewers on a daily basis. * * *

The planning/operational test allows us to “distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity.” Boyd, 890 N.E.2d at 800 (quoting Greathouse, 616 N.E.2d at 366-67). Not every government decision is immune. See Mullin, 639 N.E.2d at 282 (“If policy formulation included every act involving choice, judgment, or decision making, every act would fall within discretionary function exception.”). While the decisions regarding sewer cleaning required CBU and its employees to exercise professional judgment, these decisions may be evaluated under traditional tort standards of reasonableness. Defler, 694 N.E.2d at 1183. We find no designated evidence in the record here on appeal to convince us that CBU's actions involved the formulation of policy that would entitle it to immunity under Indiana Code section 34-13-3-3(7). We affirm the trial court's denial of summary judgment and remand to the trial court for further proceedings. Affirmed and remanded.

In Jim and Carol Daily v. City of Columbus Board of Zoning Appeals, a 6-page opinion, Judge Kirsch writes:

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 the 2.1-acre lot (“the 2.1-acre lot”) in Columbus, Indiana that they are purchasing on contract, in their action seeking declaratory judgment. The following issue is dispositive of this appeal: whether the trial court and the BZA erred by finding that the 2.1-acre lot was illegally created in 1973. We reverse and remand for proceedings consistent with this opinion.

In Faith Sadler v. Auto-Owners Insurance Co. , a 14-page opinion, Sr. Judge Sullivan writes:

Faith Sadler (“Sadler”) appeals from the granting of summary judgment in favor of defendant Auto-Owners Insurance Co. (“Auto-Owners”) upon Sadler’s complaint for Declaratory Judgment and for damages. Sadler’s complaint asserted that Auto-Owners was obligated under property and casualty insurance policies to indemnify Sadler for costs and expenses of an environmental clean-up. The costs and expenses were occasioned by leakage from underground petroleum storage tanks. Sadler has also claimed that Auto-Owners breached its duty of good faith and fair dealing and sought compensatory and punitive damages plus attorney fees.

Sadler and her now deceased husband operated a gasoline service station on the property from 1975 to 1999 when the storage tanks were removed. Since that time, until 2004, Sadler operated a tobacco retail shop on the property. * * *

In the case before us, we hold that Sadler is truly the owner of her claim against Auto-Owners for coverage under the insurance policy or policies issued to her. Accordingly, she is the real party in interest on the claim being appealed. Therefore, summary judgment was improperly premised upon a real party in interest assertion. In summation as to the issue of whether Sadler had a viable claim against Auto-Owners, under the facts of this case, we hold that the trial court inappropriately entered summary judgment for Auto-Owners on the election of remedies theory.

In her brief, Sadler makes claims that Auto-Owners acted in bad faith with respect to her claim. These assertions of fact are unsupported by citations to the record as required by Indiana Rules of Appellate Procedure, Rule 22. Indiana Rules of Appellate Procedure, Rule 46 A. (8) (a).

Sadler baldly states that her bad faith claims are of merit because initially Auto- Owners said that it had no policy coverage but after finally confirming coverage sent inconsistent and ambiguous communications. Sadler asserts that Auto-Owners agreed to pay 22 percent of the claim but then changed that offer to 9 percent. She then concludes her entire argument with the fact that finally in June 2005, Auto-Owners denied, in full, Sadler’s claim for remediation costs. Again, these assertions are unsupported by citation to the record.

Sadler’s Reply Brief attempts to put more flesh on the bare-bones factual assertions. * * *

[I]t has long been the rule in Indiana that insurance companies may, in good faith, dispute claims. The record before us reflects that such is the case here. Accordingly, we hold that Sadler did not demonstrate a legitimate bad faith claim and that it was not inappropriate to grant Auto-Owners’ motion for summary judgment as to this issue. * * *

The judgment for Auto- Owners upon Sadler’s claim for bad faith and for punitive damages is affirmed. The judgment for Auto-Owners upon the environmental claims is reversed and the cause is remanded for further proceedings upon those issues.

In Joseph D. Freeman v. State of Indiana , a 6-page opinion, Judge Mathias writes:

Joseph Freeman (“Freeman”) was convicted in Wayne Superior Court of Class C felony operating a motor vehicle while privileges are forfeited for life. Freeman appeals his conviction and argues that the trial court abused its discretion when it admitted the evidence seized as the result of an allegedly invalid traffic stop. Concluding that the evidence was properly admitted, we affirm. * * *

The vehicle stopped at a stoplight and at that time, Officer Shake observed that the left taillight was not operating. However, the right taillight and the light in the rear window were operating. The officer initiated a traffic stop after noting the malfunctioning taillight. * * *

Freeman asserts that because the vehicle had two functioning taillights, i.e. the rear right taillight and the light mounted in the rear window, the vehicle was in compliance with section 9-19-6-4. Thus, he argues that the stop was invalid because Officer Shake had no reason to stop the vehicle. * * *

We agree with both of the trial court's observations about Freeman's argument in this case; it is creative but does not carry the day. First, section 9-19-6-4 provides that “tail lamps, . . . must be wired so as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.” The left tail lamp of Freeman's vehicle was not operating. Only the right tail lamp and “light in the rear window” were working properly. The “light in the rear window” was obviously the vehicle's brake light, which would only be lighted when Freeman stepped on the brake. Moreover, Freeman's vehicle was not in good working order as required by section 9-21-7-1. For these reasons, we conclude that Officer Shake validly stopped Freeman's vehicle because the tail lamp was not illuminated.
Accordingly, the trial court did not abuse its discretion when it admitted the evidence seized as a result of the valid traffic stop. Affirmed.

NFP civil opinions today (2):

Termination of the Parent-Child Rel. of C.R.; A.I. v. IDCS (NFP)

Virginia Chase and Theresa L. Coffee v. Bernard F. Miller, Personal Representative (NFP) - " Simply put, Coffee has not indicated what facts she would have placed in issue had she be given the opportunity to present evidence at a hearing in addition to the documents and arguments submitted with her Motion to Dismiss. Therefore, Coffee has not demonstrated that she was prejudiced by the failure to conduct an evidentiary hearing. The trial court did not err in ruling on the parties‟ respective motions without conducting an evidentiary hearing. Judgment affirmed."

NFP criminal opinions today (6):

Robert Waters v. State of Indiana (NFP)

Gregory L. Payne v. State of Indiana (NFP)

William T. Casbon v. State of Indiana (NFP)

Dennis Woods v. State of Indiana (NFP)

Donte T. Gibson v. State of Indiana (NFP)

John Pickett v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides suit against IPS; also an interesting Illinois bankruptcy case

Angela Brook-Ngwenya v. Indpls Public Schools (SD Ind., Judge Barker), is a 9-page per curiam opinion:

Angela Brooks-Ngwenya claims that the Indianapolis Public Schools infringed a copyrighted educational program that she had developed while work- ing for the school system. She also accuses the school system of employment discrimination. The district court granted summary judgment for IPS.
She had been promoted in October 2002 to classroom assistant at Gambold Middle School. During that school year she developed “TIRS”—Transitioning Into Responsi- ble Students—to assist underachievers at Gambold. According to Brooks-Ngwenya, IPS promised to buy TIRS and hire her as a permanent classroom coordinator if the program proved successful. But IPS did not buy TIRS or give Brooks-Ngwenya a permanent job, and yet, she says, the school system continued to use the program after she was terminated in October 2003. * * *
The record includes documents related to TIRS—a proposal for the program, for example, and documents explaining how the program is designed to work. The proposal and the other documents are copyrightable, as the Copyright Office ultimately concluded. But the in- fringement claim fails nevertheless because Brooks-Ngwenya did not prove or try to prove that IPS copied any of the materials protected by her copyright. Her complaint is that IPS copied her ideas for better educating stu- dents—that is, copied the TIRS program, which is a system of rewards and recognition for students. Copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is de- scribed, explained, illustrated, or embodied in such work.” * * *
As for employment discrimination, Brooks-Ngwenya’s claims, which are based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and on the Equal Pay Act of 1963, 29 U.S.C. § 206(d), were raised in her first suit, Brooks-Ngwenya v. Indianapolis Public Schools, No. 1:04-CV-1980-SEB-VSS (S.D. Ind. July 6, 2005). When the parties settled that suit, they stipulated to a dismissal with prejudice. Such a dismissal is a final judgment for purposes of claim preclusion (collateral estoppel, in an older vocabulary) and so bars the present suit. Affirmed.

In re Ingersol (ND Ill.) is an 18-page opinion by Judge Evans. Here is the beginning and end of the opinion:

Although many have tried to put a stake through the heart of this fee dispute which refuses to die, all have failed to do the trick. We, as the sixth forum to take a stab at it, are next in line. Now creeping along as a bankruptcy appeal, the case is here after stops at the District of Columbia Bar Attorney/Client Arbitration Board, the Superior Court of the District of Columbia, the Superior Court of Delaware, the federal bankruptcy court for the Northern District of Illinois, and finally the federal trial court for that district. Baise & Miller, P.C., the Washington, D.C. law firm in this dis- pute, is here today appealing an order barring its claim for additional fees under 11 U.S.C. § 105 of the bank- ruptcy code. In resolving the firm’s appeal, we must go back in time to when this saga all began.
The Ingersoll Cutting Tool Company (ICTC), since its inception in the late 1800s, was at the forefront of the metal cutting tool industry. For the vast majority of that time it was a family-owned enterprise, handed down from its founder, Winthrop Ingersoll, to future genera- tions. But that changed in 2001, when Israeli-based Iscar, Ltd. took over in a sale allegedly “masterminded” by the first outside board members in ICTC’s history. Prior to the sale, ICTC was owned by the Gaylords, descendants of Mr. Ingersoll and the appellees in this case. They claim they had no desire to sell the company but were duped by the nonfamily CEO and certain directors. * * * What is important is that when the Gaylords caught wind of this plan, they tried with all their might to stop the sale, retaining Baise & Miller to act on their behalf. And when the law firm failed to make a differ- ence—and sought more money for its services—the Gaylords found themselves trading one battle (over their company) for another (over legal fees). * * *
But perhaps there is a broader lesson in this case, a lesson for litigants of all types: Good advocacy does not exist in a vacuum; it must be balanced with a willing- ness to compromise, to behave reasonably, and, some- times, to leave well enough alone. If these counter- weights are neglected, things can get ugly in a hurry. This case illustrates the point. What started as a simple fee dispute ended as a multi-year, multi-court monster that, as far as we can tell, benefitted no one. Baise & Miller had a number of opportunities to avoid this result.
The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Court of appeals deliberating on mayor's election"

A companion to this entry from earlier today is the editorial in today's Muncie Star-Press headed "Lawsuit's continuation not in Muncie's best interests." It begins:

What is best for Muncie? That's the question residents of Muncie should be asking as the case of Mansfield vs. McShurley plays out at the Indiana Court of Appeals.

It could be a month or more before the court issues a ruling in the case, which it heard Tuesday. If judges rule against the appeal, the case probably won't be dead. Jim Mansfield and his advisers could decide to take it to the Indiana Supreme Court, and that would potentially push its resolution into next year.

Even if Mansfield wins the appeal, it might still be months before a new election was scheduled in Precinct 46, because Sharon McShurley could then appeal to the state's highest court.

McShurley's recount win was based on an apparent error in the election room, compounded by a quirk in Indiana law that left Mansfield unable to appeal the reversal after the recount. It also cost the voters of Precinct 46, whose absentee ballots were tossed out, their voices in the election.

It is understandable, then, that Mansfield would want to take his appeal as far as possible in order to draw attention to the flaw in election law and perhaps force the Indiana General Assembly to fix it. At the same time, he is taking up the flag for the predominantly Democratic Precinct 46.

The problem lies in prolonging the lawsuit and the uncertainty about the legitimacy of the Muncie mayor for as much as another year or more. It's taken almost a year and a half to get this far. Add another year or so, and the lawsuit runs into the 2011 municipal election cycle.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Courts

Ind. Law - "Decision on reverse angle parking pending" [Updated]

Phil Wieland reports today in the NWI Times on "reverse angle parking" - a concept new to the ILB. Some quotes:

VALPARAISO | The city's Traffic and Safety Committee hopes to make a decision next month whether to have reverse angle parking on LaPorte Avenue adjacent to the Uptown East development.

City Engineering Director Tim Burkman said reverse angle parking, in which drivers would pull up and back into a space angled in the direction of traffic, is something being used in other cities. He said it offers safety advantages of making it easier for drivers to see traffic when they pull out into the street and is less complicated than parallel parking.

Councilman Al Eisenmenger, who also is a city police officer, said the police had reverse angle parking in front of the old police station and, even with the emergency vehicle and the uniform, other drivers would give police a dirty look when they had to stop to allow them to back into a space. Burkman said it's the same situation for parallel parking, which the city allows. * * *

Committee members agreed the reverse angle could be safer, but it also would mean vehicles would block more of the sidewalk. If drivers back up until the rear tires touch the curb, the trunk would block 3 feet of a 4-foot-wide sidewalk. A pickup truck would completely block the sidewalk.

[Updated on May 13th, 2009] See the story today in the NWI Times headed "No reverse angle parking on LaPorte Avenue."

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Law

Ind. Law - "It's the Law: Firing gun risks felony"

Ken Kosky's NWI Times' "It's the Law" column for today, looks at under what circumstances and in what areas it is legal to fire a firearm:

People have the right to own guns, but they can get in trouble if they decide to fire them.

The Indiana criminal recklessness statute makes it a felony, punishable by up to three years behind bars, to fire a gun in a manner that creates a substantial risk of bodily injury.

Portage police arrested a man on a criminal recklessness charge in January after he was accused of firing five or six shots in the air while at a storage facility on U.S. 20. Police said the man and his friends got their truck stuck in the snow and, since they didn't have a cell phone, decided to shoot a handgun in the air to get people's attention so help would come.

In addition to Indiana law, many cities and towns have ordinances prohibiting the firing of firearms within their jurisdictions.

For example, Portage prohibits people from firing guns in the city unless it is for personal protection or to protect crops from small pests on plots of land 10 acres or larger, Portage also prohibits the use of pellet guns, BB guns or bows and arrows.

Valparaiso also prohibits the shooting of firearms, air guns and pellet guns. In addition, it is illegal to use a bow and arrow in a manner that endangers people's safety or property. Valparaiso police said they do see violations, like when someone tried to shoot deer a few years ago on Bullseye Lake Road.

People who live in unincorporated Porter County -- the areas outside towns and cities -- are allowed to hunt, target shoot and otherwise shoot weapons, said Porter County police Lt. Chris Eckert.

However, Eckert said people are required to have the proper backstop while target shooting, and they must not endanger any people or property while hunting or shooting.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Law

Ind. Courts - "Court of appeals deliberating on mayor's election"

Updating this ILB entry from Monday, the Court of Appeals yesterday heard oral argument in the Muncie mayoral challenge. Here is Nick Werner's coverage in the Muncie Star-Press. Some quotes:

Mansfield was the apparent winner of the 2007 mayoral race until a December recount uncovered problems with absentee ballots in Precinct 46.

The recount commission disqualified 19 ballots because a Republican clerk failed to initial them as required by law, changing the results of the election.

Mansfield then sued to get a special election in Precinct 46, but Special Judge Joel Roberts of Jay County dismissed the case because it was not filed within 14 days of the election, a deadline set forth by state law.

In his appeal, Mansfield has argued he was still the apparent winner 14 days after the election and therefore could not challenge the election before the deadline passed.

Mansfield's attorney, Bill Groth, told the panel of judges that courts should interpret election law more liberally in cases like Mansfield's to avoid voter disenfranchisement.

"We're simply asking these voters be given a chance to express their votes on ballots that are legal," he said.

Brooks argued that because the 19 absentee ballots were legally disqualified, Mansfield has no grounds for a special election.

"At the end of the day, they want a new election because Mr. Mansfield lost," Brooks said.

The oral arguments presented at Tuesday's hearing differed little from previous arguments filed in written briefs with the appeals court.

Judges Margaret G. Robb, Cale J. Bradford and Melissa S. May occasionally asked questions while attorneys argued their cases.

Both McShurley and Mansfield were present at the hearing.

The ILB has made a poster of the above clip - see it here.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Courts

Ind. Courts - NYT editorial lauds 7th Circuit nominee, Judge Hamilton

Today the NY Times has an editorial that begins:President Obama has done well with his first judicial nomination — David Hamilton, a well-respected federal district court judge in Indiana — for the Chicago-based United States Court of Appeals for the Seventh Circuit. After eight years of Bush nominees, many of whom had thin credentials and far-right ideological agendas, the selection of Judge Hamilton is good news indeed. The Senate should confirm him quickly.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Courts

Courts - More on: Specialty plates questions being heard in 3rd Circuit

Updating yesterday's ILB entry, the Washington Post yesterday had a story on special license plates by Maryclaire Dale that began:

PHILADELPHIA -- The latest forum for the national debate over abortion is whizzing by at 65 mph.

Anti-abortion groups have won approval in at least 18 states for specialized license plates with the tagline "Choose Life," even as officials in New Jersey and other states fight the requests on various grounds.

The cases raise unresolved questions about whether license plates _ or even portions of them _ convey government or private speech. To raise revenues, many states let drivers buy specialty plates that recognize everything from military units and colleges to sports teams and nonprofit groups.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Courts in general

Ind. Courts - "Jury begins deliberations in Central Library fraud lawsuit"

Updating earlier ILB entries, Jon Murray reports today in the Indianapolis Star in a story that begins:

LEBANON, Ind. -- Attorneys for the Indianapolis library system asked a jury Tuesday to deliver a nearly $50 million wallop to an engineering company accused of fraud on the troubled Central Library project.

The case was placed in the jury's hands after a trial lasting more than five weeks in a Boone County courtroom. The Indianapolis-Marion County Public Library is targeting New York-based Thornton Tomasetti, the final defendant left in a five-year-old web of lawsuits over the Downtown Indianapolis project.

Based on a consultant's allocation of $50 million in cost overruns among the project's players, library attorneys asked the jury to award $24.5 million in damages against Thornton Tomasetti.

And double that, library attorney Paul Kruse requested, by finding equal punitive damages.

"Make them pay so much that they can't afford to do it again," Kruse said during closing arguments. "Their office is in New York. Send a message so loud they can't ignore it."

Thornton Tomasetti has denied the library's narrow claims of fraud and constructive fraud. But the library's attorneys say the company, intending to conceal design flaws, misrepresented the reasons behind changes in 2003 that added reinforcing steel to a new underground garage, contributing to concrete defects. The structure also served as a foundation to a six-story expansion.

The legal war against more than a dozen companies began after gaps and cracks were found in the garage's concrete beams and columns. Library officials halted work on the then-$103 million project in early 2004. A renovated and expanded Central Library reopened in December 2007.

The jury of five women and one man retired from Special Judge Matthew Kincaid's courtroom about 6 p.m. Tuesday to deliberate. They went home before 9 p.m. and will resume deliberations this morning.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Courts

Ind. Decisions - "Date Set For Terre Haute Mayor's Case"

Oral argument has now been set in the case of Burke v. Bennett -- 84A01-0801-CV-2 -- the Terre Haute mayoral race / Little Hatch Act dispute, granted transfer last Thursday by the Supreme Court.

The date is May 28, the time is 10 AM.

See this ILB entry for background. See the Nov. 13, 2008 ILB summary of the COA opinion here. Note: Transfer was granted to both Appellant and Appellee.

(Not to be confused with the Muncie mayor's case, for which oral argument was heard before the Court of Appeals yesterday.)

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Transfer Lists

Ind. Courts - More on: Wisconsin's diploma privilege under attack

Updating this ILB entry from April 11th, Ashby Jones of the WSJ Law Blog wrote yesterday, in an entry that begins:

Back when we were studying for the bar exam, we remember being seriously envious of all those recent University of Wisconsin law school graduates who planned on practicing in the Badger State. Why? A Wisconsin rule, called the “diploma privilege,” provides that graduates of the law schools at the University of Wisconsin and Marquette University don’t have to take the Wisconsin bar exam in order to practice in Wisconsin. On Wisconsin, indeed.

But is that rule fair to graduates of the law schools at Harvard or UCLA or, well, Oklahoma City University? Well, one Oklahoma City University School of Law graduate doesn’t think so. Christopher Wiesmueller, a lawyer in Waukesha, Wisc., has sued both the Wisconsin Supreme Court and the agency that administers the Wisconsin bar exam, alleging that the rule violates the Constitution’s dormant commerce clause — which, generally speaking, prohibits one state from discriminating against residents of other states.

Posted by Marcia Oddi on Wednesday, April 15, 2009
Posted to Indiana Courts

Tuesday, April 14, 2009

Ind. Courts - A story that leaves you wanting to know more

The Decatur Daily Democrat has a story today that certainly leaves you wanting more, but apparently there is no more:

Adams County's two courts function well, but there are growing pressures inside and outside the judicial system, said Adams Circuit Court Judge Fred A. Schurger on Monday in the annual State of the Courts address.

Inside the local system, the pressure, the judge said, is the number of people who break the law, a total that grows as the economy worsens.

Outside the local system, the pressure comes from a proposal from a group of Indiana judges for four major changes in the way courts operate.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Courts

Ind. Courts - "Lake County judges shouldn't be elected"

An editorial today in the Gary Post-Tribune:

A bill pending in the state Senate would, if approved, change judicial procedures in St. Joseph County, making Lake County the last county in Indiana where judges are appointed rather than elected. If the measure passes, some observers believe the Legislature then would turn its attention to Lake County and establish judicial elections here. Bad move.

If Lake County's 12 Superior Court judges were elected rather than appointed, the county's notorious political culture ultimately would threaten their impartiality, making them allegiant to people who got them elected -- not, necessarily, to those who are right.

Superior Court Chief Judge John Pera puts it more bluntly: Judicial elections in Lake County -- where judges become mired in politics whether they like it or not -- "would be a disaster," he said. We heartily agree.

Lawmakers knew what they were doing in the 1970s when they removed Superior Court judges from electoral politics and initiated a merit-based system, where a nominating committee submits names of candidates to the governor. Judges subsequently run countywide for retention or rejection but do not face opponents.

Doing so leaves judges free to decide cases based on the merits and the law, rather than based on special interests. That's how it should be.

And from the NWI Times:

A movement is afoot in the Indiana General Assembly to move away from the merit selection process for judges. That movement must be stopped immediately.

House Bill 1491 would make Lake County the only Hoosier county in which judicial candidates are not elected. It is a step backward at a time when forward momentum is needed.

In Lake and St. Joseph counties, most superior court judges are nominated by a panel of lawyers and lay people, then appointed by the governor. Those judges face voters every six years in nonpartisan retention questions.

It is a sensible process, one aimed at keeping judges out of politics.

This process was supported 9-0 last October by the Indiana Commission on Courts. That summer study group urged extending the merit selection process for county division judges in Lake County and retaining the selection process in St. Joseph County.

The Indiana State Bar Association and the judges themselves oppose House Bill 1491, but the state Senate Judiciary Committee voted 6-5 last week to keep the bill alive.

State Sen. Ed Charbonneau, R-Valparaiso, is the Senate sponsor of this legislation.

State Rep. Charlie Brown, D-Gary, has said he will pursue legislation next year that would doom the merit selection process for Lake County as well.

In 2006, we said, "As with so many other facets of life in Lake County, politics can mire the election of judges under a party label. The merit process helped bring the judiciary out of that entanglement."

That holds true today.

A judge who is worried about re-election is pressured to make decisions that might be in the best interest of the party or of the judge's re-election prospects, but not necessarily that of justice.

HB 1491 is a pet project of House Speaker Pat Bauer, D-South Bend, who has been an extreme obstructionist this session.

Unless this bill is stopped, the cause of good government in Indiana will suffer yet again.

Rather than electing all judges, Lake County should have the selection process expanded to all judges with state courts within the county, just as the summer study committee recommended.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Wymberley Sanitary Works v. Earl J. Batliner, Jr., et al. , a 24-page opinion, Chief Judge Baker writes:

Here, we are asked to consider the common arrangement between a utility company and a property developer in which the developer finances the extension of a sewer line to a proposed housing development. We find that such an arrangement is permissible and that the utility is entitled to exercise the power of eminent domain to effect the sewer line extension.

Appellant-petitioner Wymberley Sanitary Works (Wymberley) appeals the trial court's orders dismissing Wymberley's eminent domain complaints against the appellees- respondents (collectively, the Landowners) and granting the Landowners' motions for attorney fees in the amount of $83,042.14. Wymberley argues that the trial court should have concluded that Wymberley's proposed takings are for a public purpose, that there is a current need for the takings, that Wymberley's proposed sewer route was not arbitrary or capricious, and that attorney fees are not warranted because Wymberley did not act in bad faith. The Landowners cross-appeal, arguing that the trial court erred by denying them their attorney fees incurred in preparing and defending the fee petitions.

Finding that the trial court erred as a matter of law when it concluded that Wymberley made improper offers to purchase the requested easements, that the proposed takings are not for a public use, that there is no current need for the takings, that Wymberley acted in bad faith, and that the Landowners are entitled to a portion of their requested fees, and finding that the trial court properly denied the Landowners' some of their requested fees, we affirm in part, reverse in part, and remand with instructions to enter final judgment in Wymberley's favor.

In Fred Ferrill v. State of Indiana , a 6-page opinion, Chief Judge Baker writes:

Appellant-defendant Fred Ferrill appeals the trial court’s order modifying the conditions of his probation. Ferrill argues that the trial court did not have the authority to make a sua sponte modification. Finding that the trial court did not have such authority because Ferrill has not violated the terms of his probation, we reverse. * * *

The Jones v. State court ultimately concluded that a trial court is without authority to modify the terms of a defendant’s probation unless the defendant first violates the conditions of his probation, “[e]ven though the additional conditions arguably are reasonably related to the rehabilitation of the Defendant[.]”

Here, there has been no allegation that Ferrill has violated any term of his probation. Instead, the trial court sua sponte set the hearing and sua sponte modified Ferrill’s probationary terms. Pursuant to Jones, the trial court was without the authority to take that action.

As stated above, without an appellee’s brief from the State, Ferrill need only present a prima facie showing of error. Under this standard of review, we agree with Ferrill that the trial court erred by adding GPS monitoring as a condition of Ferrill’s probation.

The judgment of the trial court is reversed.

Jesse Pitts v. State of Indiana

Rodney S. Perry v. State of Indiana

NFP civil opinions today (2):

Shirley and Larry Jones v. Hurricane Foods, Inc. d/b/a Wendy's (NFP)

In the Matter of L.M. and H.C. v. Magee Mitchell, Matthew Copsey and Rachelle Copenhaver (NFP)

NFP criminal opinions today (7):

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

Shaft Jones v. State of Indiana (NFP)

Hugh Beech v. State of Indiana (NFP)

Mario L. Sims, Sr. v. State of Indiana (NFP)

John A. Caldemone v. State of Indiana (NFP)

John A. Huntzinger v. State of Indiana (NFP)

James Lee v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt"

See this upcoming law journal article by Jenny E. Carroll (University of Cincinnati College of Law), titled "Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment and Adult Process," that is featured by Lawrence B. Solum's Legal Theory Blog.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Courts in general

Ind. Law - Updated Governor's billwatch page

Access it here. Seven new bills have been received by the governor. One bill, HEA 1037 (product transfer between beer wholesalers), became law without signature.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Law

Law - NCAA nixes Facebook sites wooing prospects

From the San Francisco Chronicle, an AP story by Justin Pope that begins:

College sports fans, be careful of the company you keep on Facebook.

You might get yourself — and the program you support — in trouble.

That was the lesson this week for Taylor Moseley, a North Carolina State freshman who expressed a common-enough opinion on campus when he started the Facebook group called "John Wall PLEASE come to NC STATE!!!!"

More than 700 people signed up for the group encouraging Wall — a local standout and the nation's No. 1 basketball recruit — to pick the Wolfpack by national signing day next week.

But the NCAA says such sites, and dozens more like them wooing Wall and other top recruits, violate its rules. More than just cheerleading boards, the NCAA says the sites are an attempt to influence the college choice of a recruit.

Moseley got a cease and desist letter from N.C. State's compliance director, Michelle Lee, warning of "further action" if he failed to comply. In an interview Friday, Lee said that people who act as boosters but fail to follow recruiting guidelines could face penalties such as being denied tickets or even being formally "disassociated" from the athletic program.

Adam Kissel, director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education, said the NCAA can impose rules on its member colleges. But universities — especially public ones — can't enforce them if it means punishing students in any way for expressing an opinion.

"A student doesn't lose First Amendment rights because of a contract the university signs with (the NCAA)," he said.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to General Law Related

Courts - Specialty plates questions being heard in 3rd Circuit

Here is a long list of ILB entries on "God" plates and "Choose Life" plates. Plus there was the ILB entry from April 9th, pointing to a How Appealing entry, referencing a Denver Westword headline: "After vegan requests LVTOFU license plate, the DMV reveals its dirty mind."

Today Shannon P. Duffy of The Legal Intelligencer has an article headed "3rd Circuit to Mull When States Can Limit License Slogan Choice." It begins:

Combine the hot-button issue of abortion with a truly perplexing First Amendment question -- whether auto license plates are a public forum -- and it's no wonder the federal courts are all over the map on whether states have the right to deny issuing specialty plates that carry the slogan "Choose Life."

Today a three-judge panel of the 3rd U.S. Circuit Court of Appeals is slated to take up the issue in Children First Foundation Inc. v. Legreide, a suit alleging that New Jersey officials engaged in "viewpoint discrimination" when they said that a specialty plate bearing the slogan "Choose Life" would be "too controversial."

The judges -- Theodore A. McKee and D. Brooks Smith of the 3rd Circuit and a visiting judge, Richard Stearns of the District of Massachusetts -- will not be writing on a clean slate.

Similar court battles have erupted all over the country.

Most notably, the 9th U.S. Circuit Court of Appeals in San Francisco ordered the state of Arizona to begin issuing "Choose Life" plates, but the 4th Circuit in Richmond, Va., held that the state of South Carolina had no right to specifically authorize such anti-abortion plates without also allowing plates that bear an abortion-rights message.

In October, the U.S. Supreme Court refused to step into the fray, allowing the 9th Circuit decision to go into effect.

So far, at least 18 states have begun issuing "Choose Life" plates and efforts are under way in an equal number of states -- some in court and others before state agencies -- to expand the movement.

In the 3rd Circuit case, Children First's lawyer, Jeffrey A. Shafer of the Alliance Defense Fund in Washington, D.C., will be arguing that U.S. District Judge Joel A. Pisano erred by failing to recognize that New Jersey law allows nonprofit groups to put logos on specialty plates and that Children First was singled out because of the content of its logo.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Courts in general

Ind. Courts - "Indiana bankruptcies soar 41% in year"

An AP story posted to the Indy Star site begins:

As the economy foundered, bankruptcies in Indiana soared 41% from March 2008 to March 2009.

That seems like a big jump, but Indiana ranks 27th out of the 50 states and the District of Columbia for percentage increase.

Delaware, home to many large corporations, was the hardest-hit state, with a 127 percent increase.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Courts

Ind. Decisions - More on: "State high court agrees to hear Burke v. Bennett"

Updating this ILB entry from yesterday, Arthur E. Foulkes of the Terre Haute Tribune Star reports today in a lengthy story that begins:

TERRE HAUTE — The curtain soon will go up on what should be the final act of the ongoing drama of Burke v. Bennett, the legal struggle for control of Terre Haute’s City Hall.

The Indiana Supreme Court — the highest court in the state — has agreed to hear the case, which started more than a year ago in a Vigo County courtroom shortly after the November 2007 city elections.

Burke v. Bennett pits former Mayor Kevin Burke against current Mayor Duke Bennett, who won the 2007 election by 110 votes out of about 12,000 cast. However, Burke argued — after the election — that Bennett had been ineligible to run due to the Hatch Act, a law that limits the political activity of people paid with federal funds, including employees of some not-for-profit agencies that receive federal money.

Before being elected, Bennett was director of operations at the Hamilton Center, a not-for-profit mental health organization that includes a federally funded Head Start program.

Both sides were informed Monday of the Supreme Court’s decision to hear the case. There was no immediate indication when the court might make a ruling or whether it would hear oral arguments in the case. Burke and Bennett both have requested that the court, a five-judge panel, listen to oral arguments.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Transfer Lists

Ind. Law - Still more on "Independent official would review deaths of children in custody"

Updating yesterday's entry, Mary Beth Schneider of the Indianapolis Star reports today:

An ombudsman may give new oversight to the state Department of Child Services after all, as an amendment creating the position was added Monday to the proposed state budget in the Senate.

Chances of the ombudsman plan becoming law have moved from slim to strong, now that the idea is part of House Bill 1001, the budget bill.

The idea had earlier passed unanimously in the Democrat-controlled House and the judiciary committee of the Republican-controlled Senate. But the original measure creating the position, House Bill 1602, abruptly died in the Senate Appropriations Committee when Sen. Luke Kenley, the committee chairman, refused to give it a vote. * * *

Sen. Brent Waltz, the Greenwood Republican who offered the amendment resurrecting the ombudsman, said one issue that "every single person of this body agreed to and agreed on was the fact that the Department of Child Services was woefully understaffed." While the state has added caseworkers, Waltz said adding the ombudsman is a "logical extension" of the goal of improving the agency to provide independent oversight.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Law

Ind. Decisions - "State high court revives casino fund case"

The Supreme Court's decision yesterday in the case of Gregory Zoeller v. East Chicago Second Century (ILB summary here) is the subject of a story today by John Byrne of the Gary Post-Tribune. Some quotes:

The fight over millions of dollars in East Chicago casino tax revenue is headed back to court.

The State Supreme Court on Monday reversed the dismissal of a lawsuit the city of East Chicago and the state Attorney General's Office brought against the development company Second Century Inc., ordering the case remanded back to Marion County court.

Attorney General Steve Carter and the city sued the politically connected company in 2005, arguing owners Tom Cappas and Michael Pannos pocketed more than $16 million in casino receipts the organization had agreed to use for development projects within the city.

Second Century argued it was incorporated as a for-profit corporation and therefore did not have to account for its spending.

The Marion County Court and the state Court of Appeals both dismissed the case.

In reversing the lower courts, the Supreme Court said the Attorney General's Office has broad authority to investigate organizations receiving public funds.

"Given the broad common law and statutory authority conferred upon the Attorney General to protect the public interest in charitable and benevolent instrumentalities, we conclude that it was error to dismiss the Attorney General's counterclaim on grounds that Second Century is a for-profit corporation," reads the Supreme Court ruling written by Chief Justice Randall Shepard. * * *

Attorney General Greg Zoeller, who succeeded Carter, said: "It is our belief that this lawsuit will shine the spotlight of public attention onto the historic problems of corruption that have plagued East Chicago and parts of Lake County. Gambling proceeds from the riverboat were supposed to benefit the citizens of East Chicago; now we have the opportunity to find out how those $16 million really were spent."

Here is an AP story.

Gary Welsh of Advance Indiana has an entry headed "Supreme Court Ruling Allows Attorney General To Unravel More East Chicago Corruption."

Bill Dolan of the NWI Times has this story. Some quotes:

The Indiana Supreme Court resurrected the Indiana attorney general's campaign to open the financial records of a politically connected East Chicago development firm that still holds millions in casino cash.

The high court on Monday ordered a judge in Indianapolis to hear the merits of the attorney general's demand that Thomas Cappas and Michael Pannos, political allies of former East Chicago Mayor Robert Pastrick, must account for $16 million funneled to their business, Second Century Inc., between 1997 and 2006. * * *

Marion County Superior Court Judge Cale J. Bradford dismissed the lawsuit in 2007 on grounds the attorney general had no legal standing to question the East Chicago arrangement.

The high court ruled the attorney general has broad authority to protect the public interest in cases of a charitable public trust, like Second Century was designed to be.

J. Lee McNeely, an attorney representing Second Century, said Monday the decision will only result in more tax dollars wasted by the attorney general pursuing a case he cannot win.

"The attorney general must still prove his lawsuit, which he cannot do. Ultimately, we will prevail on this issue," McNeely said.

McNeely said in 2006, Second Century did public good by helping build millions of dollars worth of new housing, including North Harbor, a 61-unit apartment complex in East Chicago.

Mayor George Pabey, who defeated Pastrick in 2004, argues Second Century has squandered the money. The Indiana Gaming Commission, citing a state investigation showing Cappas, Pannos and their families had taken "enormous" salaries from Second Century, terminated the firm's subsidy in 2006. More than $5.2 million sits in escrow pending a resolution of the legal battle.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - Still more on Indiana decisions cited in Coleman-Frankin Senate dispute

Updating these earlier ILB entries on the Coleman v. Franken U.S. Senate election dispute in Minnesota, Indianapolis attorney Bill Groth writes:

The Minnesota 3-judge election contest court issued its unanimous decision this afternoon rejecting Coleman's contest and finding that Franken received the most votes from those who voted legally in the election. It cites Crawford v. Marion Co. Election Board twice (at pp. 34 and 47) in the portion of its opinion rejecting Coleman's Bush v. Gore equal protection argument.

Here is the 68-page decision.

Here is the initial take of Prof. Rick Hasen, Election Law Blog.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Courts in general

Ind. Courts - More on: Election of all St. Joseph superior court judges / Creation of 6th district COA panel

HB 1491 passed second reading in the Senate yesterday and is on the calendar today (p. 6) for a final vote.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Courts

Ind. Decisions - More on: Transfer list for week ending April 9, 2009

A reader points out a case of note I overlooked in the summary of last week's transfer decisions by the Supreme Court.

The Court denied transfer April 9th in the case of John B. Curley, et al. v. Lake Co. Board of Elections and Registration, et al, the "early voting" case (see ILB Oct. 31, 2008 summary here). The vote was 3-2, with Shepard, C.J., and Sullivan, J., voting to grant transfer.

Posted by Marcia Oddi on Tuesday, April 14, 2009
Posted to Indiana Transfer Lists

Monday, April 13, 2009

Ind. Law - Election of all St. Joseph superior court judges / Creation of 6th district COA panel

HB 1491, about which there are many ILB entries (here is a list), is on the Senate 2nd reading calendar today. The last day for third reading is Wednesday, so the bill must pass second reading today or tomorrow if it is to move forward.

A check of the web page for the bill lists no 2nd reading amendments as having been filed at this point.

R. William Jonas Jr., President, Indiana State Bar Association, has sent a message this afternoon to all ISBA members urging:

Lawyers need to send the message to our elected senators that merit selection should be retained in St. Joseph County, and that HB 1491 should be defeated. Importantly, the bill has been amended to add a provision calling for the addition of a new panel of three judges to the Court of Appeals. The necessity of a new appellate panel can be debated by reasonable people, but that topic should be considered separately as it was in the House.

Posted by Marcia Oddi on Monday, April 13, 2009
Posted to Indiana Courts

Ind. Law - Golf cart bill is on third reading

Correcting this ILB entry from April 2nd, where I wrote:

[The ILB] 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.

This is true. But it turns out a bill that started out in the House dealing with "farm wagons" has been amended on second reading in the Senate, via a motion by Senator Stutzman dated April 6th, to cover "Off-road vehicles, farm wagons, and golf carts." The bill, HB 1483, is eligible for final passage in the Senate today. Sponsors are: Hershman, Stutzman, R. Young, Steele.

Posted by Marcia Oddi on Monday, April 13, 2009
Posted to Indiana Law

Ind. Courts - "Lake County prosecutor declines interest in judgeship, U.S. attorney post"

Marisa Kwiatkowski reports this afternoon in the NWI Times in a story that begins:

CROWN POINT | Lake County Prosecutor Bernard Carter on Monday respectfully declined any attempts to appoint him Northern Indiana's first black federal judge or U.S. attorney.

A group of state legislators, municipal judges and other Lake County officials suggested Carter's name week as a potential candidate for one of the federal offices.

Carter said he prefers to staying prosecutor, where he has been since 1994.

"It's a huge compliment when people bring your name up in that context, but I enjoy what I do now," he said. "You've got to have a passion for what you do."

Carter's name was among 15 on a list of black attorneys who some local officials and community leaders believe are qualified for the federal posts. The only other name released was Karen Freeman Wilson, a Gary attorney who has served as Indiana attorney general and Gary city judge.

Posted by Marcia Oddi on Monday, April 13, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court rules in riverboat gambling proceeds case

In Gregory Zoeller v. East Chicago Second Century (Marion Sup.Ct. 4, Judge Bradford), a 10-page, 5-0 opinion, Chief Justice Shepard writes:

The City of East Chicago and Showboat Marina Partnership agreed that part of the proceeds from riverboat gambling would flow back for community benefit through various entities. The Attorney General has now brought claims for constructive trust and unjust enrichment as to property in the hands of one of those entities, East Chicago Second Century, Inc., and its principals. We reverse the trial court’s dismissal of these claims. * * *

I. Does the Attorney General Have Authority to Bring this Case?

Second Century moved to dismiss on grounds that its status as a for-profit corporation took it out from under the provisions in the trust code that describe the Attorney General’s supervisory role as respects charitable activity. It argues on appeal that it was established under the agreement to benefit as a private for-profit corporation, and that “this non-charitable component eliminates the possibility that a public charitable trust was created,” citing the definition of such trusts, Ind. Code § 30-4-1-2(5). (Appellant’s Br. at 5, 7.) Second Century cites S. Ind. Gas and Elec. Co. v. City of Boonville, 252 Ind. 385, 248 N.E.2d 343 (1969), for the proposition that East Chicago was acting in a private or proprietary manner when it entered into the agreements and that this means they are not public contracts on which a charitable trust might be imposed. * * *

Given the broad common law and statutory authority conferred upon the Attorney General to protect the public interest in charitable and benevolent instrumentalities, we conclude
that it was error to dismiss the Attorney General’s counterclaim on grounds that Second Century
is a for-profit corporation.

II. Whether Unjust Enrichment is Available * * *

The fact that a claimant has requested imposition of a constructive trust does not affect the right of the claimant to assert a claim for unjust enrichment and restitution where the contention is that one person has been unjustly enriched at the expense of another.

It was error to dismiss the Attorney General’s complaint on these grounds.

III. Whether the Unjust Enrichment Claim is Actionable * * *

There was an express contract in this transaction, but it was not one to which the Attorney General or the State were parties. Showboat entered into the local development agreement with East Chicago. That transaction is thus not a bar to the Attorney General’s claim for unjust enrichment, an equitable remedy.

Moreover, the agreement is not like an ordinary commercial contract at all. This agreement was a mode of implementing the casino’s obligation to contribute to local economic development. Its terms were intended to control the rights and duties of East Chicago and the casino licensee in relation to each other; they were not intended to control the rights of any non-parties. The Attorney General’s claim for unjust enrichment is actionable.

IV. Is Fraud a Necessary Prerequisite to Constructive Trust? * * *

While Indiana courts have certainly said on occasion that fraud is a prerequisite, see, e.g., Brown v. Brown, 235 Ind. 563, 135 N.E.2d 614, 617 (1956), the meaning of this declaration is not confined to fraud as one might define it for purposes of criminal law. Rather, the remedy is available where there is standard fraud (i.e., misrepresentation, reliance, etc.) or a breach of duty arising out of a confidential or fiduciary relationship. United Steelworkers of Am. v. N. Ind. Public Serv. Co., 436 N.E.2d 826, 831 (Ind. Ct. App. 1982). * * *

Conclusion. We reverse the dismissal entered by the trial court and remand for further proceedings on the merits.

Posted by Marcia Oddi on Monday, Apri

The Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Thursday, April 30, 2009

Ind. Decisions - Supreme Court decides two today re ex post facto challenges to the Indiana Sex Offender Registration Act

Courts - Michigan High Court tackles juries' Googling

Ind. Courts - "State investigating Judge Spencer: Allegations stem from Ward murder trial"

Ind. Decisions - Court of Appeals issues 8 today (and 18 NFP)

Ind. Gov't. - General Assembly adjourns without budget; special session looms; what passed

Environment - "EPA seizes Crestwood Illinois files: Raid comes after tainted-well report"

Law - "Recession hits top law firms' profits: Many Chicago practices have cut staff and even the top firms are seeing their revenues fall or flat line"

Ind. Decisions - Still more on: Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1

Ind. Decisions - More on: "Appeals court calls non-violent protective orders defective"

Ind. Courts - "Judge Hamilton sails through 2nd hearing"

Wednesday, April 29, 2009

Ind. Courts - More on: Conferees agreed to version of St. Joe judges selection bill [Updated]

Ind. Decisions - "Appeals court calls non-violent protective orders defective"

Environment - More on: Track swine flu via google maps [Updated]

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

Ind. Courts - More on: "Terre Haute Lawyer Arrested for Drunk Driving Again"

Ind. Decisions - Two Indiana rulings today from 7th Circuit

Ind. Decisions - "East Chicago on a roll in battle for casino funds"

Courts - Where does new Democrat Spector stand on Dawn Johnsen and David Hamilton's nominations?

Tuesday, April 28, 2009

Ind. Courts - Conferees agreed to version of St. Joe judges selection bill [Updated]

Ind. Decisions - Supreme Court issues two today

Ind. Decisions - NFP COA annexation decision reclassified

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP) [Updated]

Environment - Indiana Court of Appeals named as a Law Office Climate Challenge Partner by the ABA

Ind. Decisions - COA rules in Foundations of East Chicago case

Law - "Maryland State Law Targets 'Minimum Pricing'"

Courts - More on "Pushing the Supreme Court Toward Transparency"

Ind. Decisions - More on: Appeal withdrawn by Terre Haute Tribune-Star in $1.5 million defamation case

Environment - "After near-record lows, Lake Michigan's water level rises nearly 2 feet"

Courts - "Court Weighs Funding For Special Education"

Environment - Track swine flu via google maps

Monday, April 27, 2009

Ind. Law - More on: Golf cart bill is on third reading

Ind. Law - Even more on: "Farm interests oppose Indiana's puppy mill bill" [Updated]

Law - Amid continued rumblings that the Senate might not confirm her, supporters of Dawn Johnsen are stepping up efforts for a vote

About this blog - 6th birthday of ILB; how to become a supporter; and an important heads up

Ind. Decisions - Transfer list for week ending April 24, 2009

Environment - IDEM enforcement during the Daniels' adminisration

Courts - "Justices Asked to Weigh Free Speech vs. License Plates"

Ind. Law - Still more on: "Farm interests oppose Indiana's puppy mill bill"

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

Indiana Law - "Midwest's Midsize Law Firms Faring Better Than Large Urban Rivals"

Ind. Law - "It's the Law: State law allows most tattoos, body piercings"

Ind. Courts - Proposed changes to the Rules for Court-Administered Alcohol and Drug Programs

Ind. Decisions - Upcoming oral arguments this week and next

Sunday, April 26, 2009

Law - "Fight for Astor Estate Mirrors Battle 50 Years Ago "

Environment - "Without Superfund Tax, Stimulus Aids Cleanups"

Courts - "Pushing the Supreme Court Toward Transparency"

Ind. Decisions - Interesting order issued in appeal pending opinion

Environment - "Officials in Three States Pin Water Woes on Gas Drilling"

Ind. Courts - Justice Sandra Day O'Connor speaks in South Bend and Fort Wayne

Ind. Law - More on: "Farm interests oppose Indiana's puppy mill bill"

Ind. Gov't. - Where are we in the legislative session?

Law - Is the Dawn Johnsen nomination in trouble?

Environment - "IDEM slow to resolve enviro permit issues"

Saturday, April 25, 2009

Ind. Law - Identity theft bill on way to Governor's desk

Ind. Decisions - Two cases granted transfer April 23rd

Ind. Courts - "Rolls-Royce faces sex-bias suit by two Indy managers"

Ind. Courts - "Hamilton Co. lawyers offer brief in U.S. strip-search case"

Ind. Law - "Farm interests oppose Indiana's puppy mill bill"

Friday, April 24, 2009

Ind. Decisions - Supreme Court issues one today

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

Ind. Law - US News Law school rankings out, now officially

Thursday, April 23, 2009

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

Wednesday, April 22, 2009

Ind. Courts - "Justice O’Connor argues against electing judges in St. Joseph County"

Ind. Law - More on: US News Law school rankings out (but not officially)

Ind. Gov't. - More on: It's the end of the session again, and no way to track what is going on

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

Ind. Courts - "7th Circuit Nominee To Go Before Senate Judiciary Again"

Ind. Courts - More on "Monroe County public defender’s office faces allegations"

Ind. Gov't. - It's the end of the session again, and no way to track what is going on