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Sunday, May 31, 2009

Ind. Gov't. - $40 million spent since passage of 2007 law meant as a bridge to help retired legislators and state employees until they qualify for Medicare

The Indianapolis Star's Behind Closed Doors today has an eye-opening story on the costs of 2007's SEA 501:

A state health insurance plan meant as a bridge to help retired legislators and state employees until they qualify for Medicare may be on the ropes. And more state workers are opting to retire sooner rather than later because of that.

The plan was passed in Senate Enrolled Act 501 in 2007 by legislators who had scrapped a controversial and very generous health plan for themselves. In general, it pays retirees about $1,000 for every year they were employed by the state.

The budget proposal that Gov. Mitch Daniels made in January did not include funding to continue the plan, though the version the legislature put forth included $64.4 million to fund the program for 2010 and 2011.

That budget proposal is dead, however, and with a new revenue forecast showing the state likely taking in $1.1 billion less than expected in 2009, 2010 and 2011, the chances of the insurance plan being funded aren't good.

State Budget Director Chris Ruhl said there will be no money to fund the benefit for state employees in the budget proposal the governor will deliver to lawmakers Tuesday. There will, however, be proposed funding for retiring lawmakers, Ruhl said, as this was the deal made when they gave up those more generous health benefits.

Ruhl said about 1,500 people are in or will be in the plan this year. The average cost per participant has been about $26,000 -- or about $40 million in total so far.

"You can see the reason we're not so fond of this," Ruhl said. "It's expensive."

Expectations that the plan will be eliminated have prompted some state employees to retire now, while they can still get the benefit. * * *

Legislators, though, may have the last word on this -- and so far, at least, they have been advocates of keeping the plan.

Some background. See this April 24, 2007 ILB entry is headed "Governor announces he will sign legislative pay raise," and this April 29, 2007 entry headed "Budget threatened by new legislative pay provision."

Here is how Niki Kelly of the Fort Wayne Journal Gazette described the new health care benefit in an April 25th, 2007 story:

The governor also signed Senate Bill 501, a companion bill that establishes a retirement medical benefits account for state employees of all three branches of government as well as elected and appointed officers.

Legislators previously had authorized a special state-supported retirement health plan for only themselves. But it became a sensitive political issue, and they officially repealed it in the pay raise bill.

As a result, though, the General Assembly decided to set up a similar plan for all retiring state employees or elected officials who have served at least 10 years.

It requires the state to make annual contributions to the account based on the age of the employee, from $500 for employees younger than 30 to $1,400 for employees 50 or older.

In addition, there is a “catch-up” provision for any state employee retiring with at least 15 years of service or elected officer with at least 10 years of service. This supplemental contribution – meant to beef up the account in the first 10 years of existence – would be $1,000 for every year of service.

The catch-up would expire in 2018.

Money in the account can be used for health care costs of all kinds after retirement, including insurance premiums. If there is a balance in the account when the employee reaches 65, the money can be used to supplement Medicare coverage.

Senate President Pro Tem David Long, R-Fort Wayne, said although legislators would be eligible “this is really more for state employees” to bridge the gap between retirement and Medicare coverage.

One more thing -- in 2007 retiring state employees not old enough to qualify for Medicare would lose access to affordable group insurance coverage after the 18-months of Cobra access had terminated. The federal law relating to Cobra coverage has now been expanded. What is the impact here?

Posted by Marcia Oddi on Sunday, May 31, 2009
Posted to Indiana Government | Legislative Benefits

Saturday, May 30, 2009

Courts - "Federal judges' group puts big cases on fast track"

Deborah Yetter of the Louisville Courier Journal has a story today on the federal Judicial Panel on Multidistrict Litigation. It begins:

The collapse of New York financier Bernard Madoff's multibillion-dollar Ponzi scheme created shock waves among investors around the world.

A few of those waves rippled into Kentucky this week as lawyers argued about the best place to try some of the scores of lawsuits generated by what's been called one of the world's largest financial swindles.

Seven federal judges who make up the Judicial Panel on Multidistrict Litigation met for two days in Louisville to consider the best place to decide several of the nation's biggest and most complicated cases. Topics ranged from elaborate financial fraud of the Madoff-related cases to more mundane cases involving subjects such as cable television, drywall, denture cream and even Victoria's Secret lingerie.

"It's an interesting job -- it's fascinating," said U.S. District Judge John G. Heyburn II, who as chairman was host for the first Louisville meeting in 20 years of the group of seven judges better known as the MDL Panel.

The main goal of the panel is to consolidate multiple lawsuits from across the country before a single judge, to simplify proceedings and eliminate possible conflicting outcomes from different jurisdictions. The process reduces appeals and speeds resolution of cases.

The panel, which meets every two months, began hearing cases Wednesday. When members adjourned Thursday, judges had heard from about 100 lawyers arguing about whether 30 cases -- some involving hundreds of lawsuits -- should be consolidated in a single city before a single judge.

Posted by Marcia Oddi on Saturday, May 30, 2009
Posted to Courts in general

Ind. Law - Fort Wayne JG editorial on legalizing golf carts

The most recent earlier ILB entry on golf carts on public streets was posted May 27th. Today the Fort Wayne Journal Gazette has this editorial:

While other issues rightly received more attention, the Indiana General Assembly took action in its recently ended session that was not so widely reported and that offers a common-sense solution to a safety issue facing an increasing number of Hoosiers:

Golf carts.

More and more people are using them for basic short-distance transportation. But last year, the Indiana State Police made it clear they would enforce laws regulating them. Those laws, practically speaking, essentially banned golf carts from streets. The laws required golf carts to have license plates if they are used on public streets and roads. And to be eligible for a license plate, a cart had to have basic safety equipment, including seat belts, windshield wipers, lights and turn signals.

A statewide policy is problematic. If they’re used on relatively quiet streets and roads, golf carts can be practical, inexpensive, non-polluting and convenient transportation. On busier streets and highways, though, they are a safety hazard.

So lawmakers arrived at the reasonable solution of giving individual cities and towns the power to legalize golf carts on local streets beginning July 1.

At their discretion, city and town councils can decide whether the carts should be legal and, if so, whether they must display a slow-moving vehicle sign or have a flashing yellow or red light. Operators must have driver’s licenses.

The matter had become an issue in towns like Hamilton, north of Fort Wayne. Officials there had previously legalized golf carts, unaware that current state law prohibited them. The mayor of Mitchell, south of Bedford in Lawrence County, encouraged citizens to drive golf carts – until a resident was ticketed by the county sheriff’s department.

Bluffton is among area communities considering allowing golf carts.

Local street conditions differ widely, and the legislature was right to give local officials power to legalize golf carts rather than trying to craft a one-size-fits-all law.

With the golf cart issue settled, lawmakers should next year turn to another form of transportation that is even more widely used – often illegally – and the subject of confusing state laws:

Scooters and mopeds.

Posted by Marcia Oddi on Saturday, May 30, 2009
Posted to Indiana Law

Environment - "Petitions filed to appeal federal water permits for megadairies"

This story today in the Richmond Palladium-Item reports:

Federal wastewater permits approved earlier this month for two area megadairies have been appealed.
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Petitions for administrative review of the Indiana Department of Environmental Management's decision to issue permits to Liberty Dairy LLC in Union County and Union-Go Dairy in Randolph County have been filed with the Office of Environmental Adjudication (ODA), said India Davidson, ODA legal assistant.

The 24 petitioners seeking review of the Liberty Dairy permit hired the Columbus, Ind., law firm Kline King and King to represent them. Their petition asks for administrative review of the permit decision, an adjudicatory hearing and a stay.

The petition was filed May 22 with ODA, one day before the deadline.

No dates have been set in that case because no attorney has been assigned to the case by the Indiana Attorney General's office to represent IDEM, OEA officials said.

Five appeals of Union-Go Dairy's permit were filed by Randolph County residents. Residents Allen and Judy Hutchinson, Curtis Ramer, Stephanie Pflasterer, Wendy Carpenter and Richard and Barbara Pegg are representing themselves, Davidson said.

OEA is waiting for any additional appeals to arrive that were mailed prior to the May 19 appeals deadline before making any determination on whether those appeals meet agency requirements, Davidson said.

Liberty Dairy's National Pollution Discharge Elimination System permit allows the construction of a 2,500-cow dairy in Harrison Township in Union County. Construction on that dairy isn't expected to begin until next year.

Union-Go Dairy, a 1,650-cow dairy, would be allowed to build new lagoons in the first phase of expansion for which the permit was issued. In phase 2, the dairy will submit a plan to address problems with the existing lagoon.

Here are earlier ILB entries on Liberty Dairy and Union-Go Dairy.

Posted by Marcia Oddi on Saturday, May 30, 2009
Posted to Environment

Courts - DC Circuit refuses to review ruling on Indiana rail line

The South Bend Tribune has posted this AP story:

WASHINGTON, D.C. (AP) — A U.S. appeals court on Friday declined to review a federal board's decision rejecting a request by the city of South Bend and the Brothers of Holy Cross to have two interconnected rail lines declared abandoned.

In 2006, the city and priests asked the federal Surface Transportation Board to declare the 3.7-mile rail line abandoned because it is no longer used or maintained by Norfolk Southern. The request was made after officials with South Bend Railway announced it wanted to buy and refurbish the line and use it for freight service, including possibly delivering coal to a power plant at the University of Notre Dame and perhaps eventually to transport fans to Notre Dame football games.

Notre Dame officials said at the time the school was not interested. The city argued that it could use the land for sewers if the line was abandoned.

The Surface Transportation Board, though, said it was in the public interest to preserve the lines because Notre Dame in the future might accept the coal by rail.

The city and priests argued the board's decision was arbitrary and capricious. The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the board acted reasonably.

Posted by Marcia Oddi on Saturday, May 30, 2009
Posted to Courts in general

Friday, May 29, 2009

Ind. Decisions - "Duke Energy Ordered to Shut Indiana Coal Power Units"

Andrew M. Harris reports for Bloomberg News:

Cinergy Corp., now part of Duke Energy Corp., was ordered by a U.S. judge to shut three Indiana power-station units for federal Clean Air Act violations incurred during renovations more than 17 years ago.

U.S. District Judge Larry J. McKinney in Indianapolis issued the directive today, ending the second phase of a 2008 trial at which a jury found Cinergy modified the coal-fired facilities without installing best-available pollution controls.

Citing increased sulfur dioxide emissions from the units, McKinney’s 58-page ruling ordered them shut no later than Sept. 30.

Duke Energy acquired Cinergy three years ago. The units in question are part of its Wabash River power station, located near Terre Haute, McKinney said. The six-unit plant first came on line in 1953, according to the company’s Web site.

A second Indianapolis federal court jury this month found Cinergy had violated U.S. environmental regulations at two power units at its Gallagher Station in New Albany, Indiana, on the north bank of the Ohio River near Louisville, Kentucky.

That jury found in favor of the company on four other plant modifications that the U.S. government said exceeded ordinary maintenance, bringing them within the scope of the emissions regulations.

Here is today's 58-page opinion.

Here are earlier ILB Cinergy entries.

[More] Here is the Duke Energy news release on Judge McKinney's ruling.

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit's CJ Easterbrook rules in chambers on secrecy issue

In Milam v. Dominick's Finer Foods (ND Ill., Judge Lefkow), a 3 -page in-chambers ruling posted today with the notation "This opinion is being released initially in typescript," and dated May 27th, Chief Judge Easterbrook writes:

A chambers opinion issued earlier this month invited appellees to tell me whether they plan to defend their judgment on the ground that the district judge should not have revived the case by granting plaintiffs’ motion under Fed. R. Civ. P. 60(b)(1). I observed that, if they advance such a contention, then I must decide whether the basis of the district court’s decision can remain secret. The opinion added: “If appellees inform me that they plan to challenge the district judge’s Rule 60 decision, appellants may file a response within seven days.” United States v. Foster, No. 09-1248 (7th Cir. May 1, 2009), slip op. 6 (Easterbrook, C.J., in chambers). * * *

The question at hand is whether information sealed in the district court should remain under seal in this court. Here is the relevant portion of my earlier opinion:

* * * Plaintiffs ask us to maintain the affidavit under seal, because (they say) it “would potentially cause embarrassment and affect [coun- sel’s] personal and professional reputation by disclosing personal matters”. Although the motion cites Baxter International, it does not contend that confidentiality is justified by any statute or privilege. Yet the district court did not explain why it has forbidden public access to this document.

Rule 60(b)(1) permits a judgment to be reopened because of “excus- able neglect”. Just what the “neglect” entailed, and why it was “ex- cusable,” are questions in which the public has a legitimate interest when they underlie a judicial decision. * * *

What plaintiffs now contend is that the affidavit should be removed from the appellate record. Plaintiffs say that, because the district judge did not give a reason either for dismissing the case or for reinstating it under Rule 60(b)(1), Dominick’s cannot demonstrate that the judge abused her discretion and therefore has nothing to gain from contesting the judge’s order. That means, plaintiffs insist, that the affidavit is not important to the appeal.

Yet an unreasoned decision is easier to upset on appeal than a carefully explained one. The judge did not explain the initial order dismissing the suit (an apparent violation of Circuit Rule 50), did not explain the decision to seal the affidavit, and did not explain the grant of relief under Rule 60(b)(1). What is more, Dominick’s contends (and plaintiffs do not deny) that the district judge refused to allow defense counsel to see the affidavit that plaintiffs tendered in support of their Rule 60(b)(1) motion. Dominick’s therefore had no means to oppose the motion. A judicial decision based on information that has been withheld from counsel (in addition to the parties and the public) is extraordinary and requires a compelling justification, which no one in this case has articulated.

This appeal cannot proceed in an orderly fashion under a veil of unexplained secrecy. My earlier opinion explained why secrecy appears to be unwarranted, and I take plaintiffs’ silence in their response as acknowledgment. The affidavit therefore is unsealed and placed in the public record.

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

Courts - Yet another reason to ban cellphones in court rooms?

Updating this ILB entry from May 15th, and a long list of earlier ILB entries on bannning cell phones in courthouses, Dareh Gregorian of the New York Post (yes, the Post) has a story today headed "Oh, what a twit! Tweeting Roker sorry for taking juror pix." Some quotes:

Al Roker showed up for jury duty yesterday in Manhattan Criminal Court -- but by the end of the day, he was the one feeling guilty.

The "Today" show weatherman touched off a tempest by taking iPhone pictures from the jury assembly room and posting them to Twitter, in contravention of courthouse rules.

One of the photos showed fellow potential jurors from the back, while in another, one potential juror's face could be seen.

The once-portly TV personality wound up apologizing to officials in the courthouse after word about the faux pas made the rounds.

Roker acknowledged making "a mistake" but said it was "inadvertent."

"Folks need to lighten up," he said in a later Twitter posting. "I'm not breaking laws . . . just trying to share the experience of jury duty. One that I think is important and everyone should take part in."

David Bookstaver, a spokesman for the state Office of Court Administration, said the picture taking and posting was "ill advised" but noted that Roker hadn't taken any pictures in a courtroom or of any sworn jurors.

"No harm was done," Bookstaver said, adding: "What's more important is this shows Al came to do his civic duty, and we're happy about that. It's a good example that nobody's exempt."

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Courts in general

Ind. Decisions - More on: Court of Appeals affirms Muncie Mayor Sharon McShurley's election

The Muncie Star-Press has an editorial today headed "Please end this now, Jim."

We've said it before, and we're saying it again, the continuation of Mansfield vs. McShurley is not in Muncie's best interest.

Democratic mayoral candidate Jim Mansfield lost another round Thursday with the decision from the Indiana Court of Appeals. The court affirmed the trial court's decision that denied Mansfield's effort to hold a special election for disenfranchised voters in Precinct 46, where 19 absentee ballots were tossed out.

The appeals court ruled Mansfield never alleged any circumstance that made it impossible to determine who received the most legal votes.

Early indications are Mansfield and his supporters will appeal the case to the Indiana Supreme Court, which could push any final resolution into 2010 or possibly even 2011, when the city will be in the midst of a new mayoral election.

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 19 voters in Precinct 46 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 undermining the authority of McShurley as mayor and clearly affecting her ability to deal with the city's present budget crisis.

Enough is enough. Since the suit has already dragged on long enough to get the attention of legislators who could change Indiana election law, an appeal would do little more than continue to line the pockets of the attorneys involved. Legal fees already total in the tens of thousands of dollars.

That doesn't have much of an impact on Mansfield, whose attorney is being paid by his union supporters, but McShurley has been footing the bill herself, mostly through fundraisers.

At this critical time, a mayor who is distracted by mounting legal fees, the need to organize fundraisers and a simmering antagonism toward Democrats is not what Muncie needs, especially since the bottom line would be the same regardless of who is mayor. The city is losing millions of dollars in tax revenue over the next two years that will result employee layoffs and cuts in city services.

The city is in a crisis, and we all -- Democrats, Republicans and everyone else -- must put aside our grievances and work together to find solutions.

We hope Jim Mansfield decides to do what's best for all of the residents of Muncie and end his lawsuit.

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Kokomo Perspective having trouble accessing Howard County emails

Tim Turner reported in the Kokomo Perspective on May 28th under the headline "County refuses newspaper's request for public records: City says it’s complying; county calls request ‘pathetic’":

Faced with the possibly of having to provide copies of county employees' e-mails to the public, the county commissioners recently changed its ordinance regarding public access to those e-mails, and now taxpayers will be paying for someone to sort work-related e-mails from personal e-mails.

The ordinance change was made in response to a request made by this newspaper in regards to accessing e-mails sent and received by county elected officials and department heads. The county denied the Perspective's request. County attorney Larry Murrell called part of the newspaper's request "a pathetic and misguided attempt on your part to cast aspersions on the county for the time and effort it may spend to honor your request. As such, it is an abuse of the Access to Public Records Act." The newspaper has filed a formal complaint against the county and requested the Public Access Counselor to determine if the county's refusal adheres to state law. The counselor will make a decision on June 9.

The rest of the very long story is worth reading, but too long for the ILB - let's hope the Perspective keeps it online.

The story is accompanied by this editorial dated May 28th:

Government e-mails are public record. That's what the law says, but it's never as simple as that. In the information age, more and more of the business of operating government is done via e-mail and the Internet. As such, the taxpayers have a right to know how this is taking place.

That is the central issue in the Perspective's requests to Howard County and the city of Kokomo for the e-mails generated by elected officials and department heads. The county has denied that information to us, and so we are challenging its decision through the state's public access counselor. You have a right to the information we requested. We are attempting to obtain it. * * *

We agree with the county that some e-mails are not public, such as those containing confidential information like personnel records or discussions of pending litigations. We would argue that communicating these issues via e-mail is irresponsible, but the e-mails would be protected in those cases.

We understand that the state's public access counselor has ruled that personal communication on the public's e-mail system is exempt from disclosure. We may not agree with the ruling. In fact, we believe this is a misuse of public resources that is specifically limited, if not forbidden, by the county's electronic use policy. We may believe that such a ruling should be challenged. But we don't fault the county for denying those records.

On the issue of providing an accounting of Web site visits by particular individuals, if the county does not maintain such a record, we agree that it has no responsibility to create a new record upon our request. Perhaps the county should review how it archives electronic information to protect the system from misuse and to better enable it to fulfill a public records request in the future.

However, on the most important point - reasonable particularity - the Perspective must challenge the denial. We believe we have been specific enough in our request for the county to be able to reasonably reply. We are not under any requirement to identify what information we are seeking within the record, and the county is not required to ferret out such information.

We have asked for a particular range of information from a specific and limited set of records. Whether that range is one day or 100 days shouldn't have an impact of the reasonableness of the request. Whether the set of records is e-mail from one public officials or 20 public officials also has no impact on reasonableness. If the record exists, and it can be accessed without undue hardship, then the request is reasonably particular.

If the record does not exist, then we are willing to revise our request to a smaller or more specific set of records. Only that would be reasonable grounds for denial, in our opinion.

Why does any of this matter? It matters because our government is established for the benefit of the people. It is funded by the people, and it serves to represent all of our interests - not its own interests. You have a right to know how government operates, how it utilizes the resources you provide to it, and how it spends the money you give to it in the form of taxes.

To accept the county's records denial is to accept that the public has no right to see how one aspect of government operates. It allows a shroud of darkness to exist. We aren't saying that government is abusing the public trust in this area. We just want to make sure that the potential for abuse doesn't exist.

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Indiana Government

Ind. Gov't. - Continuing on: "Pension Funds Object to Chrysler Sale, Want Trustee"

An interesting editorial today in the Fort Wayne Journal Gazette:

Mourdock blamed the Obama administration’s brokering of the Chrysler bankruptcy for state investment losses, saying the deal that gives holders of secured Chrysler bonds 29 cents on the dollar will cost two Indiana state government funds and a separate teachers retirement fund more than $5.5 million. “It’s just flat-out wrong – it’s infuriating to me,” Mourdock said. “It’s not right that state policemen and teachers suffer this loss.”

The loss Mourdock detailed compares what the three funds are set to receive under the bankruptcy to the bonds’ full face value. But the investment funds were unlikely to receive full value for the bonds under any scenario. What Mourdock didn’t tell Hoosiers was that the funds he mentioned bought the bonds for an average of 43 cents on the dollar. All told, the three funds paid $17 million for the bonds and will receive an estimated $15 million, for a loss of $2 million, not the $5.6 million Mourdock alleged.

“Indiana’s pensioners should not be punished as a result of investment managers making historically sound decisions,” Mourdock said. “The managers did nothing wrong, but the portfolios have been victimized due to the actions of the federal government in the Chrysler bankruptcy.”

Whether buying Chrysler bonds was a “sound decision” is debatable. Mourdock, a Republican, failed to mention the state and the teachers retirement fund bought the bonds in July 2008, a time when the rest of the world’s financial communities knew Chrysler was in trouble. Daimler-Benz sold Chrysler the year before at a huge loss. Eight months before Indiana bought the bonds, Chrysler announced plans to eliminate 12,000 jobs and four vehicle models. * * *

Chrysler asks whether Mourdock was driven by finances or politics. The real finances point directly to politics.

Note in this ILB entry from yesterday that in addition to the Indiana Treasurer [not AG], the Attorneys General of Ohio and Illinois are also objecting "in the U.S. Bankruptcy Court for Southern New York to the sale of Chrysler LLC's assets to Italian automaker Fiat SpA, [albiet] in an effort to protect workers in their states."

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Indiana Government

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

In Lucero v. Nettle Creek School Corp. (SD Ind., Judge Young), a 24-page opinion, Judge Flaum writes:
Plaintiff Sharon Lucero taught English to 12th grade students during the 2003-04 school year. In the summer of 2004, she was assigned to teach English to 7th graders instead. Following her reassignment, Lucero filed discrimination charges against her school system, its administrators, and members of the school board of trustees. Lucero brought eleven separate claims. The district court granted summary judgment for defen- dants on all claims. Lucero appealed, and we now affirm. * * *

Based on the evidence in the record, summary judgment in favor of defendants was proper on Lucero’s retaliation, discrimination, hostile work environment, and breach of contract claims. Moreover, the district court did not abuse its discretion in striking Lucero’s first brief in response to defendants’ motion for summary judgment. We AFFIRM the decision of the district court.

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

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)

For publication opinions today (4):

In Mark P. Franciose, et al v. Aaron A. Jones, a 25-page opinion, Judge Vaidik writes:

While driving through snowy weather, Ray Ramirez, III, lost control of his truck and crashed into guardrails on both sides of an interstate highway. The truck became stuck in the passing lane of the interstate. The occupants of the truck made their way to the side of the interstate. After another motorist stopped her car to block traffic and two semi-trucks created a barrier between the stranded truck and approaching traffic, Aaron A. Jones, one of Ramirez‘s passengers, approached Ramirez‘s truck to push it off the interstate so that other motorists would not crash into it. Mark P. Franciose came upon the traffic jam, drove his car on the shoulder of the interstate, and hit Jones, causing injuries. Jones sued Franciose and Ramirez. During the jury trial, Franciose unsuccessfully objected to the testimony of Jones‘s expert witness. The jury found in Jones‘s favor and awarded damages against both defendants. Both defendants appeal. Among other things, we conclude that Franciose did not sufficiently alert the trial court that he desired an inquiry pursuant to Indiana Evidence Rule 702(b) on the admissibility of Jones‘s expert witness‘s testimony. Further, we conclude that the superseding cause doctrine does not require reversal of the jury‘s verdict against Ramirez. We affirm.
In In the Matter of M.D., J.D., and H.D.; Indiana Dept. of Child Svcs. v. B.D. and T.D., a 5-page opinion, Judge Kirsch writes:
The Indiana Department of Child Services (“DCS”) appeals from the trial court’s order dismissing, pursuant to Indiana Trial Rule 41(B), its petitions alleging that M.D., J.D., and H.D. (“the children”) were Children in Need of Services (“CHINS”). DCS raises the following restated issues: whether the trial court erred when it dismissed the CHINS petition concerning the children because sufficient evidence existed to support a CHINS finding. * * *

A fact-finding hearing was held on the CHINS petitions on October 22 and 23, 2008. Prior to this hearing, both parties filed motions requesting the trial court, pursuant to Indiana Trial Rule 52(A), to make specific findings of fact and conclusions thereon to support its decision after the fact-finding hearing. At the conclusion of DCS’s case during the fact-finding hearing, Parents orally moved to dismiss the CHINS petitions pursuant to Indiana Trial Rule 41(B). After argument by both parties, the trial court granted Parents’ motion to dismiss and issued an order dismissing the CHINS petitions on the children without issuing any findings of fact and conclusions. DCS now appeals. * * *

Trial Rule 41(B) states that when the trial court renders judgment on the merits against the plaintiff by granting an involuntary dismissal, it shall make findings when requested at the time of the motion. Although the rule is silent as to whether a motion filed prior to the commencement of the hearing is sufficient, we believe that the best practice and policy is for a trial court to issue findings supporting its decision to dismiss when requested to do so prior to a fact-finding hearing even when no subsequent request is made at the time of a motion under Trial Rule 41(B). When a motion for findings and conclusions is made prior to the admission of evidence, it requests the same outcome as a motion made at the time a party moves for involuntary dismissal under Trial Rule 41(B). A motion filed prior to the admission of evidence is requesting that a trial court specifically find the facts that it relies upon in its determination of the merits of the case and to state its conclusions based upon such facts. A Trial Rule 41(B) motion, if granted, concludes a hearing and makes a determination of the case on its merits.

Where, as here, both parties filed motions requesting that the trial court make specific findings and conclusions pursuant to Trial Rule 52(A) when the hearing concludes, we do not believe that requiring the parties to re-file their motions requesting findings at the time that a motion to involuntarily dismiss is made serves any purpose. A motion filed prior to a hearing encompasses the same intent as one filed simultaneously with a Trial Rule 41(B) motion to dismiss, which is to request findings and conclusions to support a trial court’s decision on the merits following a fact-finding hearing. Here, the trial court’s order dismissing the CHINS petitions on the children pursuant to Trial Rule 41(B) was a disposition of the case on the merits following a fact-finding hearing, and the trial court should have issued specific finding and conclusions to support such determination because it was requested to do so by the parties. We therefore remand this case to the trial court with instructions to issue specific findings and conclusions supporting its determination to dismiss the CHINS petitions.

Remanded with instructions.

In Crawfordsville Square LLC, et al v. Monroe Guaranty Insurance Co., Allstate Insurance Co., et al , a 13-page opinion, Judge Bradford writes:
Appellants Crawfordsville Square, LLC, and Crawfordsville Square II, LLC (collectively, “CS”), appeal from the trial court's denial of their motion for partial summary judgment against Appellee Monroe Guaranty Insurance Company and the trial court's grant of Monroe Guaranty's motion for partial summary judgment. At issue is whether Monroe Guaranty has a duty to defend CS in a series of administrative actions and lawsuits arising out of the contamination of property owned by CS. We affirm the judgment of the trial court. * * *

On August 23, 2005, CS brought suit against former owners of the Parcel and their insurers seeking to “obtain funding to remediate soil and groundwater contamination” of the Parcel.

In late 2006 and early 2007, Monroe Guaranty denied to CS that it was obligated to defend it against the IDEM action and counterclaims that were eventually brought by prior owners of the Parcel and their insurers. On March 2, 2007, Monroe Guaranty brought suit for declaratory judgment on the issue of its duty to defend CS. On September 26, 2007, CS filed a motion for summary judgment. On December 4, 2007, Monroe Guaranty responded to CS's motion for summary judgment and filed a cross-motion for summary judgment. On June 25, 2008, the trial court denied CS's motion for summary judgment and granted Monroe Guaranty's. * * *

CS contends that the “known loss” doctrine does not preclude coverage in this case and therefore does not excuse Monroe Guaranty from its obligation to defend CS. * * *

CS contends that the designated evidence creates a genuine issue of material fact regarding whether, when it added the Parcel to its policy with Monroe Guaranty, it was not actually aware that a loss had occurred, was occurring, or was substantially certain to occur. We disagree. * * *

As previously mentioned, we conclude that the designated evidence establishes that CS had the required actual knowledge of dry cleaning fluid contamination at actionable levels, which constitutes a known loss. We conclude that CS has failed to establish a genuine issue of material fact regarding known loss.

CS also contends that, even if Monroe Guaranty establishes a known loss, the designated evidence also raises a question of fact regarding whether Monroe Guaranty knew of the loss as well. * * * We cannot agree. The relevant designated evidence relating to Monroe Guaranty's prior knowledge of the Parcel indicates only that it was aware that a dry cleaner was operating on the Parcel at the time of the closing. This mere knowledge does not, however, create a genuine issue of material fact regarding whether Monroe Guaranty had actual knowledge of actionable levels of dry cleaning-related contamination. Quite simply, there is nothing in the designated evidence to suggest that the mere presence of a dry cleaning business invariably leads to actionable contamination of the land on which it sits. Moreover, even if such contamination is inevitable, there is no evidence that Monroe Guaranty knew this. CS has not established that the designated evidence establishes a genuine issue of material fact regarding whether Monroe Guaranty knew of the actionable contamination at the Parcel.

We conclude that CS has failed to establish genuine issues of material fact regarding its known loss and whether Monroe Guaranty also knew of CS's loss. As such, the trial court correctly granted Monroe Guaranty's motion for summary judgment on the question of coverage, and we need not address CS's other arguments on appeal.

In Jack Mikel, et al. v. Donald Johnston, et al. , a 10-page opinion, Judge Mathias writes:
Jack and Nathan Mikel, d/b/a Mikel Farms (“the Mikels”), appeal the order of the Kosciusko Circuit Court denying their objection to the sale of certain real estate located in Kosciusko County. The Mikels appeal and argue that the trial court erred in denying their objection because of a defect in the notice of sale. We affirm. * * *

We acknowledge that the trial court’s order stated that reasonable public notice should be given pursuant to Section 2(j). We read the trial court’s order to mean that the reasonable public notice requirement of Section 12 could be met by publishing the notice of the sale twice, as set forth in Section 2(j). Certainly, publication of the notice of sale twice, as required by Section 2(j), would meet the Section 12(b) requirement of reasonable public notice. But this does not mean that the reasonable public notice requirement of Section 12(b) can only be met by publishing notice twice under Section 2(j). To meet the requirements of Section 12, the notice of the sale must simply be reasonable public notice. The Mikels do not explain why the public notice that was given in the present case was not reasonable.

Furthermore, even if we were to assume that the failure to give two public notices, per the trial court’s original order, was improper, the Mikels have not established that they have been harmed by any error. See Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct. App. 2007) (citing Indiana Appellate Rule 66(A) for the proposition that we will not reverse for errors that do not affect the substantial rights of the parties). The Mikels claim that “[i]t is reasonable to conclude that advertising a property for sale twice, as opposed to once, would improve the possibility of more potential bidders being informed of the offered sale. This could enhance the prospects of more competitive bidding, as well as the prospects of obtaining a higher sales price.” Appellant’s Br. p. 11. This is speculation. The Mikels point to no actual evidence that an additional published notice would have resulted in a higher sales price. Moreover, they do not claim that the price actually obtained was inadequate. In short, the Mikels have not established prima facie error. Affirmed.

NFP civil opinions today (4):

Term. of Parent-Child Rel. of J.G.; D.G. v. Indiana Dept. of Child Svcs. (NFP)

Paternity of A.M.; T.E. v. S.H. (NFP)

Temple & Temple Excavating & Paving v. Farris Peacock (NFP) - " The question whether the defendant’s conduct is the proximate cause of the plaintiff’s injuries, however, is a question of fact for the jury’s determination. * * * The trial court did not err in denying Temple’s motion for summary judgment."

Jon Huff and Mary Huff v. Mike Stoffel and Rose Stoffel (NFP) - "Appellants-Defendants Jon Huff and Mary Huff appeal following the trial court's award of $11,525 in damages, $14,036.10 in attorney's fees, and costs, in favor of Appellees- Plaintiffs Mike Stoffel and Rose Stoffel in their breach-of-contract action against the Huffs arising out of the parties' real estate purchase agreement. Upon appeal the Huffs challenge the judgment on several grounds, including two grounds which we find dispositive: whether the trial court committed clear error in (1) finding constructive fraud, and (2) enforcing the parties' purchase agreement despite a lack of evidence demonstrating compliance with Indiana Code section 32-21-5-10(c) (2005). Concluding that the trial court committed clear error on both grounds, we reverse and remand for vacation of the trial court's judgment. "

NFP criminal opinions today (10):

Jeffrey Whitsey v. State of Indiana (NFP)

Stephanie R. Twilley v. State of Indiana (NFP)

Misty Lee Jones v. State of Indiana (NFP)

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

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

D.C. v. State of Indiana (NFP)

Albert L. Marshall v. State of Indiana (NFP)

Kevin Potter v. State of Indiana (NFP)

Justin Scott Elser v. State of Indiana (NFP)

Arturo Salinas Gallardo v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Questions Arise About Long Delay by Sotomayor-Led Panel in Climate Case"; 7th Circuit can top that

Marcia Coyle of The National Law Journal has an article today about it being three years since a 2nd Circuit panel, including Supreme Court nominee Sonia Sotomayor, heard an oral argument and as yet there has been no ruling. Specifically:

A major climate change lawsuit brought by eight states against five utilities has been pending decision for nearly three years before an appellate panel on which Sotomayor is the presiding judge.

"No one knows why the case has never been decided," said David Doniger, policy director of the Natural Resources Defense Council's Climate Center.

And it's not for lack of trying to get information. Last September, the plaintiffs wrote to the circuit clerk about the pending appeal, and just a few weeks ago, another letter went to the clerk from a group involved in the case.

The case is Connecticut v. American Electric Power Co. More from the story:
The case was docketed with the circuit court in September 2005; briefing was completed in March 2006, and argument was held June 7, 2006. The Sotomayor panel asked for additional briefing on the impact of the Supreme Court's climate decision, Massachusetts v. EPA (pdf), and that briefing was filed in July 2007.

Some lawyers who practice before the circuit court said the delay -- three years from oral argument -- is unusually long. The circuit disposes of cases on the merits an average of 17.6 months from notice of appeal to final disposition, according to statistics compiled by the Administrative Office of the U.S. Courts, and 0.6 months from hearing to full disposition.

The delay, some of have posited, is the result of the controversial nature of the case and that was only heightened by initial speculation about Sotomayor as a potential Supreme Court nominee and how any decision might affect her chances. "Some of us didn't believe earlier that the speculation about Sotomayor had anything at all to do with the delay," said one lawyer following the case. "But with every passing day that argument gets stronger and stronger."

Three years? The 7th Circuit certainly can top that. This ILB entry from July 4, 2008 talks of New Albany DVD v. City of New Albany, decided by U.S. District Judge Sara Evans Barker on Jan. 6, 2005 and heard by the 7th Circuit on Sept. 27, 2005. A decision is still pending, nearing 4 years later.

Another Judge Barker ruling - Annex Books Inc, et al v. City of Indianapolis - is even older, from August 30th, 2004. Oral arguments in the as-yet-to-be-decided case were held before Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005.

(The ILB doesn't know whether Judge Diane Wood is on the New Albany DVD panel.)

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Courts in general

Ind. Courts - Terre Haute mayoral election dispute heard by Supreme Court

The Supreme Court heard oral arguments yesterday in the case of Kevin D. Burke v. Duke Bennett. Arthur E. Foulkes of the Terre Haute Tribune-Star reports today:

INDIANAPOLIS — Dozens of spectators filled about half of the seats in the Indiana Supreme Court Room on Thursday morning to listen to Burke v. Bennett, the case that could change Terre Haute’s leadership and set precedent for Indiana election law for years to come. * * *

Burke, the incumbent Democrat, lost the 2007 Terre Haute mayor’s race to Bennett, a Republican, by 110 votes out of about 12,000 cast. After the election, Burke challenged Bennett’s eligibility to serve as a candidate for office under Indiana election law.

State law disqualifies candidates for office who are subject to the federal Hatch Act, a law that limits the political activity of federal employees and the employees of some not-for-profit organizations that receive federal funding.

Before taking office, Bennett served as director of operations for the Hamilton Center, a multicounty mental health organization that operates a federally funded Head Start program.

The Indiana Supreme Court is the third court to hear the Burke v. Bennett case. The case was first argued in Vigo County Superior Court before Judge David Bolk.

Bolk ruled that while Bennett had been subject to, and in violation of, the Hatch Act, he was no longer subject to it at the time he was to take office. The act, Bolk ruled, applies only to candidates and, at the time the case was heard, Bennett was no longer a candidate, but mayor-elect.

Burke appealed Bolk’s ruling that Bennett could assume office. Bennett later appealed Bolk’s ruling that the Hatch Act applied to him.

The case then traveled to the Indiana Court of Appeals, which also found Bennett in violation of the Hatch Act and ordered him to vacate the mayor’s office, pending appeal. However, the court also ruled that Burke could not take the mayor’s office because his Hatch Act complaint had come after the election was over.

The appeals court called for a special election to fill the mayor’s seat – a solution neither side liked.

During Thursday morning’s oral arguments, Justice Frank Sullivan Jr. asked most of the questions of both lawyers. Among his many queries, Sullivan asked Burke’s attorney why Judge Bolk was wrong to allow Bennett to take office in January 2008.

Edward O. DeLaney, of Indianapolis, answered that Bolk was wrong because the Hatch Act applied to Bennett, because he “violated [Indiana] statute by becoming a candidate.” As soon as Bennett registered as a candidate and signed a document saying he was qualified to seek office, he disqualified himself, DeLaney said. “That was the violation.”

Bennett’s attorney, Bryan H. Babb, also of Indianapolis, began his argument by quoting Bolk’s ruling in which the judge called Bennett’s connection to the Hamilton Center’s Head Start program “essentially nonexistent.” Babb also attacked the Hatch Act itself, saying the law and the many rulings it has spawned do “not make a lot of sense” and unnecessarily disqualify too many people from seeking office.

“We deal with laws that don’t make much sense every day,” Justice Sullivan responded to soft giggles in the courtroom.

When the arguments were finished, DeLaney and Babb both said they were pleased with the hearing.

“We’re asking the court to make a difficult decision,” DeLaney said.

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Wilkes' sentence challenged: Lawyers say judge violated state law"

The case of Daniel Ray Wilkes v. State of Indiana, argued yesterday before the Supreme Court, is the subject of a story today by Eric Bradner in the Evansville Courier & Press:

INDIANAPOLIS — Attorneys for death row inmate Daniel Ray Wilkes told the Indiana Supreme Court on Thursday that a Vanderburgh County judge's decision to sentence Wilkes to death violated state law.

They asked that Wilkes, who was convicted of killing an Evansville mother and her two young daughters three years ago, instead spend his life in prison.

A state attorney countered during the one-hour hearing that Wilkes' attor-neys were off-base and that Vanderburgh Circuit Judge CarlHeldt's death sentence was allowed under the law.

Wilkes was arrested in April 2006 on charges of killing Donna Claspell and her daughters, 13-year-old Avery Pike and 8-year-old Sydne Claspell, in Claspell's Evansville home. He later admitted the slayings to police.

After his trial was moved to Clark County, Ind., a jury found Wilkes guilty of the three murders. But the jury was unable to reach a unanimous agreement on whether Wilkes should live or die.

The 12-member panel deadlocked with 11 in favor of the death penalty and one opposing.

That left Wilkes' fate to be decided by Heldt, who sentenced him to death.

It was the first time since state law was changed in 2002 that a judge had to determine the sentence in a death-penalty case. Defense attorneys at the time said Heldt's sentence could lead to years of appeals.

In noncapital cases, sentencing is already up to the judge, not the jury. But in capital cases, the 2002 law requires a judge to follow a jury's recommendation.

On Thursday, Wilkes' attorneys, John Goodridge and William Gooden, said that law means for an offender to be sentenced to death, the jury has to unanimously recommend it.

They argued that because the jury was deadlocked, Heldt's only option was to sentence Wilkes to a term of years.

Indiana Deputy Attorney General Steve Creason disagreed. He said if the jury didn't offer a recommendation, Heldt had nothing to follow.

The jury did find Wilkes guilty of the three murders. Creason said just because the jury hadn't agreed unanimously that Wilkes deserved death didn't mean that option was off the table, and that it was entirely within Heldt's power to sentence Wilkes to death.

This case was a direct appeal to the Supreme Court.

Posted by Marcia Oddi on Friday, May 29, 2009
Posted to Ind. Sup.Ct. Decisions

Thursday, May 28, 2009

Ind. Decisions - Supreme Court rules that paper / dealers' plates "must be be mounted in the same fashion as the permanent plate"

Late this afternoon the Supreme Court has filed two opinions -- today's are time-stamped 3:28 PM and 4:21 PM. They are:

Kerry L. Meredith v. State of Indiana and Jeffrey Young v. State of Indiana

In Meridith, a 10-page, 4-1 opinion affirming defendant's conviction, Justice Dickson writes:

The defendant, Kerry L. Meredith, appeals his conviction for drug possession, arguing that evidence of drugs found in his vehicle should have been suppressed at trial because (1) police lacked cause to initiate a traffic stop and (2) the subsequent consented-to search of his vehicle violated his rights under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), and Sims v. State, 274 Ind. 495, 413 N.E.2d 556 (1980). The Court of Appeals reversed. Meredith v. State, 878 N.E.2d 453 (Ind. Ct. App. 2007), reh'g granted, 886 N.E.2d 79 (Ind. Ct. App. 2008). We granted transfer and now affirm the conviction, concluding that police had reasonable suspicion to stop the defendant based on the unlawful display of his temporary license plate in his rear window, and that the defendant was not in custody at the time he consented to the police search of the vehicle. * * *

Officer Lackey testified that he stopped the defendant's car solely because he suspected the vehicle was being operated in violation of Indiana's laws regarding the proper display of license plates. The question before us is thus whether the defendant's placement of his temporary plate in the vehicle's back window amounted to a traffic infraction. If it did, Officer Lackey had reasonable suspicion to execute the traffic stop. * * *

As neither the statutes nor regulations differentiate the display and illumination requirements of permanent and interim plates, we hold that under existing unambiguous law a license plate—be it temporary or permanent—must be mounted and illuminated as provided by Indiana Code §§9-18-2-26 and 9-19-6-4. This Court is mindful that the current common practice is for dealerships to issue paper or cardboard plates to customers, and that exposing such a document to the elements appears impractical and inconvenient, but as neither the statutes nor regulations differentiate between the display requirements for a permanent and interim plate, the interim plate must be mounted in the same fashion as the permanent plate. Any other method of display may give rise to reasonable suspicion for law enforcement officers to initiate a traffic stop to ascertain whether the display complies with all statutory requirements. * * *

The defendant was not in custody, and thus no Pirtle/Sims warning was necessary. The trial court did not err in refusing to exclude the evidence on this basis.

Conclusion. We affirm the defendant's conviction.

Shepard, C.J., and Sullivan and Boehm, JJ., concur. Rucker, J., dissents with separate opinion:

The Legislature has authorized the Bureau of Motor Vehicles to promulgate rules for the
placement of temporary plates, and the bureau has not done so. But this is not because the
bureau necessarily intends that the rules for permanent license plates should apply. If that were
so, then the bureau would have no reason to require ninety-day plates to be “displayed in the
same manner as a standard license plate.” * * *

A drive down nearly any Indiana street on any given day will reveal Hoosier motorists applying old-fashioned common sense: attaching temporary paper tags to the inside of the back window in order protect them from deterioration by the elements. By today’s decision the majority has transformed law-abiding citizens into traffic offenders. This is patently wrong in my view; therefore I dissent.

In Young, a 4-page, 4-1 opinion, Justice Dickson writes:
Resolution of this appeal is determined by our holding today in Meredith v.State, ___ N.E.2d ___ (Ind. 2009), that it is legally insufficient to display a paper temporary license plate inside the rear window of a motor vehicle. For this reason, we affirm the conviction of the defendant, Jeffrey Young, for Possession of Cocaine, rejecting his claim of improper admission of evidence resulting from an unlawful traffic stop.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One case granted transfer May 28th

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer has been granted today by the Supreme Court in the case of David A. Shotts v. State of Indiana -- No. 71A03-0808- CR-400. See ILB March 12, 2009 summary here - 3rd case.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Indiana Transfer Lists

Courts - "Dirty Laundry Aired: The Fight Over Revealing Divorce Details"

The Wall Street Journal has a long story today by Dionne Searcey. Some quotes:

Disclosures during divorce proceedings often elicit disgust over the revelation of intimate details -- or delight over the revelation of intimate details.

A string of recent divorce cases involving high-profile figures has laid bare that divide, in sometimes excruciatingly personal terms. Defenders of disclosure say revelations that come out of divorce cases can provide insight into the character and habits of elected officials and others who are accountable to the public, such as executives of public companies.

Despite the potential for tawdriness and spousal retaliation, there are often compelling reasons for openness, proponents of disclosure say. * * *

Divorce hearings are largely presumed to be open to the public. Case records, however, are often considered private. But the laws vary widely from state to state. In all states, courts heavily weigh the interests of children when determining whether to seal any part of a divorce case. And in some states, including California, parties are allowed to redact information if they show a compelling reason, such as financial information that could allow identity theft. * * *

A high-profile split in Connecticut involving the head of a large public company illustrates how open proceedings can serve shareholder interests, proponents of disclosure say. The wife of United Technologies Corp. Chairman George David says she deserved more than the roughly $43 million set out in the couple's post-nuptial agreement, in part, because she essentially helped run the company. Lawyers for Marie Douglas-David, a former investment banker, hope to highlight financial conversations the couple had as proof.

To that end, an attorney for Ms. Douglas-David suggested at a recent hearing that the couple discussed a merger of United Technologies with 3M Co. The proposed deal, which never happened, hadn't been disclosed prior to the divorce proceedings. * * *

Judges and legislatures at times see reasons why divorce information is in the public interest. In 2004, when Barack Obama was running against Jack Ryan for a U.S. Senate seat in Illinois, a lawsuit from the Chicago Tribune unsealed Mr. Ryan's divorce records in a custody battle that accused him of taking his wife to sex clubs and of trying to persuade her to perform sex acts for strangers. Mr. Ryan couldn't be reached for comment Wednesday. He issued denials during the 2004 campaign, but his poll numbers plummeted and he dropped out of the race.

The WSJ Law Blog picks up the story, asking "Should Details of Divorces be Allowed to be Made Public?"

The ILB had several entries on this issue in 2003 and 2004. A Jan. 14, 2003 NYT story, headed "Ernst & Young Financial Details Are Disclosed In Divorce Case," began:

Every detail that the global accounting firm Ernst & Young told its American partners about its financial performance through late 2000 became public late yesterday, including its profits, details of its capital structure, the hours billed to clients and the average earnings per partner. Many aspects of foreign operations were also disclosed.

While such information is normally closely held, the details were disclosed as part of a divorce case involving the firm's global chief executive, Richard S. Bobrow. The documents were released by Judge Steven R. Nation of Hamilton County Superior Court in Indiana, where the case is being heard, after motions were filed by The New York Times to obtain them.

The disclosure of the details is sure to arouse unhappiness among the firm's 1,900 American partners, experts said. They predicted that the information would put competitors at an advantage in bidding on contracts, hiring employees and settling lawsuits. The financial data will also be of interest to spouses of Ernst & Young partners who are planning a divorce.

See a follow-up ILB entry from April 15th, 2003 here, including this Indy Star quote:
A Hamilton County court decision has made the financial records of a privately owned global-accounting firm public, but they remain shielded from view. Hamilton County Superior Court Judge Steven Nation has denied a request from New York City-based Ernst & Young to seal and expunge financial information about the company from court records. Nation, however, did not lift a stay on the information, which blocks public access. He made the ruling last week in response to a request from The Indianapolis Star. Nation said he refused to lift the stay because lawyers from Ernst & Young have indicated they will file an appeal. "If the Indiana Court of Appeals disagrees with me, it wouldn't be (any) good for their side," Nation said.
The June 14, 2004 COA decision in the case of Ernst & Young, et al. v. Indianapolis Star is summarized in this ILB entry (last half of page). From the Indy Star's report on the decision:
Trade secrets should stay trade secrets in Indiana -- even after they no longer are secret, an Indiana Court of Appeals has ruled. Indiana's public records laws, the court ruled today, permit a trial court to seal public records that fall within certain mandatory exceptions, such as a business's confidential information, even after they have been disclosed as evidence.

The three-member court ruled in favor of accounting powerhouse Ernst & Young LLP , which sought to seal its business records after they were introduced as evidence in the divorce of former Ernst & Young chief executive Richard S. Bobrow. The records had not only been used as evidence in the Hamilton County divorce proceeding, but also publicized in the New York Times -- which had obtained them before the companies asked that they be sealed.

While Hamilton Superior Court Judge Steve Nation had ruled in April 2003 that the records, once admitted into evidence, should be public, he had kept them shielded pending the outcome of the appeal. Steve Key, general counsel to the Hoosier State Press Association, said the court's decision is like "trying to put a genie back in a bottle."

A June 18, 2004 ILB entry links to a still-accessible Chicago Tribune story (remember this was the 2004 Illinois U.S. Senate race where Ryan, the strong Republican candidate, bowed out, leaving Democratic candidate Barack Obama opposed only by Alan Keyes, who did not live in the state) that begins:
LOS ANGELES - Dealing a blow to the U.S. Senate candidacy of Republican Jack Ryan, a California judge ruled that several sealed divorce records likely to embarrass the candidate and his ex-wife should be opened to the public.

Ruling on a request brought by attorneys for the Tribune and WLS-TV, Superior Court Judge Robert Schnider acknowledged that the resulting publicity from the disclosure would be harmful to the couple's son, a key argument Ryan had raised in seeking to keep the documents from public view.

But Schnider said he had weighed the public interest of disclosure against the private interests of the Ryans and their child. "In the end," Schnider found, "the balance tips slightly to the public.

"They were aware they were in a public court system and protection from embarrassment cannot be a basis for keeping from the public what's put in public courts," said Schnider, referring to Ryan and his ex-wife, actress Jeri Lynn Ryan. Additionally, Schnider said, "the openness of court files must be maintained, so that the public ... can be assured that there is no favoritism shown to the rich and the powerful."

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Courts in general

Ind. Decisions - Indiana Supreme Court decision highlighted

The Supreme Court's May 19th decision in the case of Dennis Conwell and Frank Splittorff, d/b/a Piece of America v. Gray Loon Outdoor Marketing Group, Inc. (ILB summary here - second case) is noted today in an entry by law prof Eugene Volokh of The Volokh Conspirary.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Judge holds city in contempt, must return fees"

A story in the Gary Post Tribune today, by Jon Seidel, reports:

GARY -- A Lake County special judge is holding the city of Gary in contempt for collecting an "illegal garbage pick-up fee" from its residents and ordered officials to begin refunding the money by July 9.

Meanwhile, members of Gary's City Council are debating legislation that could legitimize the fee retroactively to January.

A vote on that ordinance could be taken as soon as Tuesday night, but council finance chairwoman Mary Brown, D-3rd District, said that's not likely.

"I don't think we'll be voting next week," Brown said.

It's been seven months since the Gary Sanitary District privatized the city's garbage collection by approving a no-bid contract with Allied Waste. * * *

Miller Citizens Corp. sued GSD, complaining that the contract should have been bid out and that only the City Council can approve a fee.

Judge Thomas Webber ruled in MCC's favor in February, voiding Allied's contract. The Sanitary District continued to bill its customers for the trash fee anyway, arguing that the fee wasn't voided along with the contract.

Webber clarified his ruling in March, explaining that as long as the council passes an ordinance approving the fee, it will stand.

Such an ordinance was introduced to the council in the fall, but it was withdrawn. A similar piece of legislation was introduced to the council on May 19, days before a follow-up hearing in Webber's court.

In his latest ruling, issued Tuesday, Webber said he didn't realize the fee was being collected without council approval until a motion to show cause was filed by MCC.

"The city knew or should have known that attempting to collect an unauthorized fee is an illegal act and the city should be held in contempt for the wrongful act," Webber wrote.

All money collected on the trash fee should be refunded or credited, Webber wrote, and the city must show compliance in time for a hearing set for July 9. * * *

The day of Webber's ruling, the council's finance committee met to discuss an ordinance that would retroactively authorize the $12 trash fee.

It was a standing-room-only meeting, as several residents wearing "Vote No" stickers decided to attend.

City attorney Carl Jones argued during the meeting that the council must pass an ordinance before the Sanitary District can enter into a contract to replace the one with Allied.

Others, including Councilwoman Marilyn Krusas, D-1st, said the contract should be approved first. "I want to see what it's going to cost us," Krusas said.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

Jim Mansfield and State ex rel. Mansfield v. Sharon McShurley and Delaware Co., Indiana Election Board - see ILB entry here.

Wesley Willis v. State of Indiana - "Because Willis has not demonstrated prima facie error in the denial of his motion to suppress the marijuana found in his pocket, we affirm his conviction. "

NFP civil opinions today (5):

Rueth Development Co. v. Indiana Limited Partnership (NFP)

Amanda Jo Zeigler v. Alexander S. Zeigler (NFP)

In the Matter of T.A. and K.S.; L.F. v. Dept. of Child Svcs., Pulaski Co. (NFP)

D.T., Alleged to be CHINS; D.V. v. IDCS (NFP)

In the Matter of the Term. of the Parent-Child Rel. of T.M.; N.M. v. Indiana Dept. of Child Svcs., Bartholomew Co. Office (NFP)

NFP criminal opinions today (3):

James Michael Keeton v. State of Indiana (NFP)

Terrell J. Robey v. State of Indiana (NFP)

Larry J. Owens v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Courts of Appeals affirms Muncie Mayor Sharon McShurley's election

From the Muncie Star-Press:

Mayor Sharon McShurley prevailed Thursday over Democrat James Mansfield in an Indiana Court of Appeals ruling that challenged her 2007 election.
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The court affirmed the trial court’s decision that denied Mansfield’s effort to hold a special election for disenfranchised voters in Precinct 46 where absentee ballots were thrown out.

“I am happy to read this,” said Indianapolis attorney David Brooks, who represents McShurley, after reading the opinion issued Thursday morning.

Key to the appeals court’s decision was that Mansfield never alleged any circumstance that made it impossible to determine who received the most legal votes. * * *

William Groth, the Indianapolis attorney who represents Mansfield, said the court of appeals made its best judgment based on the law that exists.

“There are unanswered, legal questions that are suitable for resolution by the supreme court,” said Groth, who said it would be up to Mansfield as to whether he would pursue further legal challenges.

The decision is in the case of Jim Mansfield and State ex rel. Mansfield v. Sharon McShurley and Delaware Co., Indiana Election Board..

Judge May begins the 17-page ruling:

Jim Mansfield was initially declared the winner of the election for mayor of Muncie, but after a recount Sharon McShurley was declared the winner. Mansfield challenged that result, but his case was dismissed because he did not bring his action within fourteen days of the election as required by Indiana statute. Mansfield next filed a complaint in quo warranto to challenge the exclusion of some ballots by election officials. That action was dismissed after the trial court found Mansfield‟s allegation of a “mistake” in the counting of improperly-initialed ballots did not amount to an allegation of an unlawful act that could be redressed by a quo warranto action. Mansfield also alleged fraud, but the trial court found his allegations were insufficiently specific. We affirm the trial court.
The Court denied " McShurley‟s argument on cross-appeal she is entitled to attorneys fees as a sanction against Mansfield," stating:
We affirm the trial court because Mansfield presented legitimatearguments before both this court and the trial court. * * * [T]he record in the case before us reflects the initial election showed more voters cast ballots for Mansfield than for McShurley. The final election result turned on the exclusion of the ballots that were not properly initialed by election officials. We accordingly reject McShurley‟s allegations there was anything “absurd . . . and irrational,” (McShurley Br. at 35), about Mansfield‟s complaints, or that they were “a sham,” (id.), or “flagrantly frivolous, unreasonable, and groundless,” (id. at 35-36). McShurley is not entitled to attorneys fees.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - What to call the two Indiana University law schools now?

Yesterday, in this post, I opined that the NY Times had been in error when it referenced Dean Gary Roberts as "the dean of the law school at Indiana University."

A reader responded:

Always love what you write, but remember the NY Times didn't misidentify the school Gary Roberts heads. It is the law school at Indiana University. The other one on the Indiana University campus is the Mickey Mauer Law School at Indiana University.
However, another reader writes this morning:
I think you had it right, the NYT was wrong. Roberts is dean of a law school at IU, but the definitive “the” was incorrect.

Your “reader” had it wrong in two ways, 1) agreeing with the NYT, and 2) it is “Indiana University Maurer Law School.” Jane Maurer gets a deduction too, and neither gets a “first name” credit. The website calls it “Indiana University Maurer School of Law” and that is how the Trustees accepted the gift.

And I just noticed that all of IU accepts the Indianapolis campus as one of the eight “Indiana University campuses” so that make three mistakes in your ‘reader’s’ correction.

And a prof at the Indianapolis campus writes:
I've seen stories referring to graduates of IU-B as the Maurer School of Law at Indiana University--or something like that. It certainly includes Maurer, which is the correct name.

I don't think IU-I is exclusively the Indiana University School of Law now, though. I believe we still have to include "at Indianapolis."

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Indiana Law

Ind. Gov't. - Still more on: "Pension Funds Object to Chrysler Sale, Want Trustee"

Updating this ILB entry from Tuesday, a story in the Detroit Free Press, by Greg Garder, reports:

Altavilla’s testimony came after attorneys for three Indiana employee pension funds argued that Chrysler should have sold itself off in pieces because that would have been better for secured lenders — even if hundreds of thousands of employees lost jobs.

U.S. Bankruptcy Judge Arthur Gonzalez gave the Indiana pension funds a full day in court to pursue their case, but offered no hint of whether it would slow or scuttle the sale of Chrysler assets to Italian automaker Fiat, which is on track to close by June 15.

The three Indiana pension funds hold a fraction of $2.6 billion in Chrysler loans. All the other secured Chrysler lenders — who held $6.9 billion in debt backed by Chrysler’s factories, vehicles, technology and real estate — have accepted a plan to receive $2 billion in cash.

Last week, Judge Gonzalez denied a motion by the Indiana pensioners to withdraw the entire case from bankruptcy court and send it to a U.S. District Court. They then appealed that decision to U.S. District Court, where on Tuesday Judge Thomas Griesa decided the pension funds had legal standing to appeal, but said they had to return to bankruptcy court.

Today, White & Case, the law firm that represents the Indiana pension funds, launched an assault on the federal government’s effort to force secured creditors to accept less than 30 cents on the dollar for their loans.

White & Case is arguing to Gonzalez that the pension funds should be made whole even if it means Chrysler fails and its 55,000 employees lose jobs, hundreds of suppliers go out of business and the UAW tells its retirees they have no health insurance.

Karen Asner, a lawyer for the Indiana funds, asked retired Vice Chairman Tom LaSorda about whether Chrysler was more concerned about surviving or paying its debts.

“Your main concern was that Chrysler survive regardless of its value to its owners,” she said. “At no point prior to this bankruptcy filing did you find it your duty to maximize the return to the … secured lenders?”

But LaSorda defended Chrysler’s approach to help the company survive. “Not only would thousands of people lose their jobs … Suppliers not be paid and dealers wouldn’t get product," LaSorda said. “This enterprise wouldn’t survive unless we found a partner.”

In court, the liquidation value of Chrysler was pegged as anywhere from $17.2 billion to $25.2 billion in liquidation, or less than $2 billion.

Testimony continued late today. Judge Gonzalez had not yet said whether the hearing would continue Thursday. At the end of the hearing, Gonzalez is expected to approve or delay Chrysler’s deal with Fiat.

A story by Lynne Marek of The National Law Journal reports today:
State officials in Illinois, Ohio and Indiana are objecting in the U.S. Bankruptcy Court for Southern New York to the sale of Chrysler LLC's assets to Italian automaker Fiat SpA in an effort to protect workers in their states.

Illinois Attorney General Lisa Madigan and Ohio Attorney General Richard Cordray said in separate filings this month that they oppose terms of the sale because it would allow Fiat to avoid assuming the workers' compensation liabilities of injured Chrysler workers in their states, leaving the states to pick up the slack. The attorneys general said they're not opposed to the sale if the agreement can be revised to pay for the injured workers' benefits, which they believe the remaining Chrysler entity couldn't afford. * * *

In its limited objection on May 13, Ohio's attorney general said that his office "opposes any sale that does not fully provide compensation" for Chrysler's injured workers. He said that if Chrysler defaults on the workers' compensation claims, the state's Bureau of Workers' Compensation would have to take them on, dealing a blow to its workers' compensation program and ultimately hurting the Chrysler workers' benefits. The default would most likely make Fiat ineligible for certain workers' compensation programs in the state, the filing said. The Illinois Attorney General's Office is making similar objections.

Indiana State Treasurer Richard Mourdock objected to the "illegal" plan to sell the assets on the ground that state worker pension funds that invested in debt securities tied to Chrysler would be adversely affected by the sale. The pension funds invest on behalf of state police, teacher and other employees and cover about 100,000 workers and family members. The Indiana treasurer argues that Chrysler shouldn't be allowed to sell collateral backing the senior secured debt claims held by the funds and use the proceeds to pay off unsecured trade and union creditors.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Indiana Government

Courts - "Bush v. Gore Foes Join to Fight Gay Marriage Ban "

In the wake of the failure of the California Supreme Court to throw out the Prop 8 ban on same-sex marriage (see ILB entry from May 26th here), a surprising combo of two highly respected litigators has filed a federal court challenge to the ban on federal constitutional grounds.

Jesse McKinley reports the story today in the NY Times. Some quotes:

SAN FRANCISCO — The David and Ted show is back in business.

Eight and a half years after their epic partisan battle over the fate of the 2000 presidential election, the lawyers David Boies and Theodore B. Olson appeared on the same team on Wednesday as co-counsel in a federal lawsuit that has nothing to do with hanging chads, butterfly ballots or Electoral College votes.

Their mutual goal: overturning Proposition 8, California’s freshly affirmed ban on same-sex marriage. It is a fight that jolted many gay rights advocates — and irritated more than a few — but that Mr. Boies and Mr. Olson said was important enough to, temporarily at least, set aside their political differences.

“Ted and I, as everybody knows, have been on different sides in court on a couple of issues,” said Mr. Boies, who represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Mr. Olson prevailed for George W. Bush. “But this is not something that is a partisan issue. This is something that is a civil rights issue.”

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process.

Not everyone in the gay rights movement, however, was thrilled by the sudden intervention of the two limelight-grabbing but otherwise untested players in the bruising battle over Proposition 8. Some expressed confusion at the men’s motives and outright annoyance at the possibility that a loss before the Supreme Court could spoil the chances of future lawsuits on behalf of same-sex marriage.

“It’s not something that didn’t occur to us,” Matt Coles, the director of the LGBT project at the American Civil Liberties Union, said of filing a federal lawsuit. “Federal court? Wow. Never thought of that.”

But Mr. Olson said that their lawsuit — which also seeks an injunction blocking the marriage ban until the matter can be resolved — fell squarely in the tradition of landmark cases like Brown v. Board of Education.

“Creating a second class of citizens is discrimination, plain and simple,” said Mr. Olson, who served as solicitor general under Mr. Bush. “The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it.”

In a telephone interview, Mr. Olson outlined a possible legal strategy: “if the preliminary injunction is denied, we could appeal promptly to the Ninth Circuit Court,” a level below the Supreme Court. Depending on decisions there, the case could go even higher. * * *

“We think its risky and premature,” said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles, adding that a loss at the Supreme Court level could take decades to undo. * * *

Ms. Pizer also seemed a touch befuddled by her starrier, more publicized colleagues’ unexpected interest in issues she has spent her professional life arguing. “We have developed these strategies from working on these issues for decades,” she said. “And our strategy grows from that work.”

But Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. “We studied this very, very carefully,” he said, adding that it was difficult to tell clients, “‘Why don’t you go back and wait another five years?’”

Lyle Denniston of SCOTUSBlog had an entry on the lawsuit yesterday afternoon. Some quotes, but read the whole entry:
In a new move seeking to put the same-sex marriage issue on a path to the Supreme Court, two gay couples in California have launched an effort to win a right to wed under the U.S. Constitution. They asked a federal judge in California on Thursday to block any enforcement of California’s “Proposition 8″ — a state constitutional amendment that denies marriage to same-sex couples. The request on Thursday for an injunction followed the filing last Friday of an underlying lawsuit spelling out their constitutional claims. * * *

The motion for an injunction in Perry, et al., v. Schwarzenegger, et al., can be found here. The case is docketed in the Northern District of California as 09-2292. The complaint filed last week is here. The case has been assigned to Chief Judge Vaughn Walker.

The plea to block Proposition 8 was filed one day after the California Supreme Court had upheld that voter-approved measure, which overturned an earlier ruling by the state’s highest court allowing same-sex couples to marry. Both of the rulings by the state court were based only on California law, so neither raised an issue under a federal law or the U.S. Constitution and thus could not be tested in a federal court.

But in the new lawsuit in federal court, the two gay couples based their claims solely on the national Constitution. They claimed that Proposition 8, by singling out same-sex couples for denial of the right to civil marriage, violated their rights to due process and to legal equality.

[More] "Olson, Boies Unite to Fight Calif. Same-Sex Marriage Ban in Federal Court: Conservative lawyer and liberal colleague challenge Proposition 8 on federal equal protection grounds," a story by Mike McKee, appears in The Recorder today.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Courts in general

Ind. Courts - "Burke v. Bennett hits Indiana's high court today"

Supplementing this ILB entry from yesterday, Arthur E. Foulkes reports today in the Terre Haute Tribune-Star:

What should be the final round of the ongoing Burke v. Bennett legal wrestling match for control of City Hall is set for today in Indianapolis.

Both sides in the 18-month-old struggle will get 20 minutes to make their cases to a panel of five Supreme Court justices. The hearing is scheduled to begin at 10:05 a.m. in the state capital.

“I feel like we’re as prepared as we can be,” said former Terre Haute Mayor Kevin Burke on Wednesday. “It’s very clear what we’re asking for and I feel good about that.”

Burke, a Democrat, lost the 2007 mayor’s race to Mayor Duke Bennett, a Republican, by 110 votes out of about 12,000 cast. Burke then challenged the election result charging Bennett was ineligible to run under Indiana law.

Indiana law disqualifies political candidates who are subject to the Hatch Act, a federal law that limits the political activities of federal employees and some not-for-profit employees whose organizations receive federal funding.

Before the election, Bennett was director of operations for the not-for-profit Hamilton Center, which operates a federally funded Head Start program.

Last November, the Indiana Court of Appeals ruled that Bennett had indeed been ineligible to run for mayor and ordered Bennett to vacate the mayor’s office. It also ruled that Burke was ineligible to take office, saying his challenge to the 2007 election came too late. To fill the office, the appeals court called for a special election — something neither side favored.

Bennett and Burke both asked the state Supreme Court to take the case on appeal, which the high court last month announced it would do.

“I’m hopeful that this will be the last stage,” Bennett said Wednesday. “The quicker we can get this behind us, the better for all of us.”

Burke is arguing that state law requires Bennett be removed from office and the candidate receiving the second-highest vote total — Burke — be installed as mayor.

Bennett, on the other hand, argues that his connection to Hamilton Center’s Head Start program was minimal and that it would be “unjust” to overturn an election result based on those grounds. Bennett is also arguing that Indiana should set its own Hatch Act eligibility standards. Under the Hatch Act, many Hoosiers, including letter carriers, are ineligible to run for partisan political office.

“It’s one of those thorny cases,” said Luis Fuentes-Rohwer, a law professor at the Maurer School of Law at Indiana University. “We are told that judges are supposed to simply read the law and apply it,” he said. “But what if a plain reading of the law results in overturning an election based on the Hatch Act, a law most people know little about?”

The Supreme Court will have to ask itself, “Do you really want to do this,” Fuentes-Rohwer said.

Posted by Marcia Oddi on Thursday, May 28, 2009
Posted to Upcoming Oral Arguments

Wednesday, May 27, 2009

Ind. Decisions - Supreme Court posts one, late this afternoon [Updated]

Brandon Stanley v. Danny Walker is a 24-page opinion. The majority opinion, by Justice Sullivan, ends on p. 11. Then:

Boehm, J., concurs with a separate opinion in which Shepard, C.J., joins. [pp. 13 - 14]
Dickson, J., dissents with a separate opinion in which Rucker, J., concurs. [pp. 15 - 24]

Justice Sullivan's opinion begins:

The amount of medical expenses actually paid by the plaintiff in this personal injury case was discounted from the amount originally billed because of arrangements between the plaintiff‘s health insurance company and the medical service providers. The defendant sought to introduce evidence of the discounted amount actually paid over the plaintiff‘s objection that Indiana‘s "collateral source" statute bars evidence of insurance benefits. To the extent the discounted amounts may be introduced without referencing insurance, they may be used to determine the reasonable value of medical services.
[Updated 5/28/09] Doug Masson has a good post on this ruling here, at Masson's Blog.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "Mortgage-Related Litigation on the Rise"

That is the headline to this article by Tresa Baldas in The American Lawyer. It begins:

Mortgage-related lawsuits are on the rise, with homeowners and investors alike suing over allegedly being duped by the mortgage industry.

According to a litigation report from MortgageDaily.com, an online mortgage news analyst, the number of mortgage-related lawsuits filed in the first quarter of this year jumped to 81, a more than 50 percent increase from the 50 cases tracked during the same quarter in 2008.

Cases tied to foreclosures, including actions against foreclosure-rescue firms, jumped to 12, triple from the four cases in the prior period. Lawsuits filed by mortgage-backed securities investors also increased, from four to 13, which pushed investor class actions to 21 cases -- the most of any type.

No surprise, said attorneys involved in mortgage banking regulatory matters.

"Is this expected? Yes. A trend like this is not uncommon when what you're talking about is, essentially, the aftermath or effects of an industrywide crisis, " said Michael Waldron, a partner in the Dallas office of Washington's Weiner Brodsky Sidman Kider, which helped prepare the mortgage litigation report.

"The question I think you have is the timing [of the litigation]," Waldron said. "What we're seeing is the dust beginning to settle. I'm not contending that the crisis is over. But what I would suggest is that the dust is beginning to settle. People are beginning to kind of poke their heads out from the bunker, and they have allowed themselves some time to evaluate the landscape."

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Courts in general

Courts - "Sotomayor’s Baseball Ruling Lingers, 14 Years Later " [Corrected?]

It turns out that not only did Gerard N. Magliocca, a law professor at Indiana University at Indianapolis, have a column today in the NY Times, but Gary R. Roberts. Dean and Gerald L. Bepko Professor of Law at the same Indiana University School of Law - Indianapolis, is quoted today by Richard Sandomir in a story in the NYT headlined "Sotomayor’s Baseball Ruling Lingers, 14 Years Later ."

Unfortunately, the reporter misidentifies the school Dean Roberts heads. Here is the quote, from near the end of the story:

Gary R. Roberts, the dean of the law school at Indiana University [sic], called it the “right decision from a legal and tactical standpoint,” and the one of the most important ones in baseball history, short of the Supreme Court’s antitrust rulings.
[Correction?] A reader wtires:
Always love what you write, but remember the NY Times didn't misidentify the school Gary Roberts heads. It is the law school at Indiana University. The other one on the Indiana University campus is the Mickey Mauer Law School at Indiana University.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Courts in general

Ind. Law - "Some animal rights advocates working to strengthen new puppy mill bill"

Updating earlier ILB entries on the "puppy mill" bill passed last month (HEA 1468). WSBT out of South Bend has a long story today by Kelli Cheatham that includes this quote near the end:

“We definitely have some work to do,” said [Kosciusko County Animal Welfare League Executive Director Trish Brown].

She intends to follow up on another part of the puppy mill bill. Local cities, townships and counties have until the end of this year to adopt their own, more stringent animal ordinances.

“I think it opens the door for somebody to come in and fine tune it,” she said.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Indiana Law

Ind. Law - "Art appreciation: Prisoner art project helps raise money"

Laurie Wink of the Michigan City News-Dispatch reports today in a story that begins:

WESTVILLE - Martha Russell, a self-described "older, single female," wasn't keen on the idea of working with male prisoners at the Westville Correctional Center.

"It was not my kind of thing," she said. "I wasn't sure I wanted to do it."

Since becoming coordinator of a prisoner art project at Westville, Russell said she's had some of the most moving experiences of her life. The art program is offered through Companions on the Journey, a South Bend non-profit organization that aims to reduce the number of ex-offenders who return to prison.

Because of Russell's efforts to promote the prisoners' art, children of Westville offenders will have financial support to attend Camp New Happenings, a summer camp offered by the Episcopal Church Diocese of Northern Indiana.

The prison art program gives offenders an outlet for their feelings and a chance to discover their talents. It's a voluntary program for those who want to participate.

Russell used $300 of her own money to purchase art supplies and instruction books. She brought them to a newly established art room in Westville's Plus Dormitory, a faith- and character-based residential unit.

"I'm not an artist," Russell said. "The only thing I could provide were supplies."

But she recognizes talent and was inspired by the prisoners' creativity to organize the first prisoner art show and auction this spring.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides whether creditor must return the car to the bankruptcy estate

In Thompson v. GMAC (ND Ill.), a 19-page opinion, Judge Willaims writes:

This case involves an all too common occurrence that bankruptcy courts must deal with: a buyer defaults on his car payments, a secured creditor seizes the asset, the buyer files for Chapter 13 bankruptcy, and the big question that ensues is whether the creditor must return the car to the bankruptcy estate. In this case, we are asked to consider a procedural conflict between many bankruptcy courts within this circuit, and those in the sixth, eighth, ninth, and tenth circuits.

We must decide whether an asset that a secured creditor lawfully seizes pre-petition must be returned to the buyer’s estate after he files for Chapter 13 bankruptcy, and, if so, whether the creditor must immediately return the asset even in the absence of a showing that the debtor can adequately protect the creditor’s interest in the asset. In the United States Bankruptcy Court for the Northern District of Illinois, it has been an accepted standard procedure for a creditor to retain possession of a seized asset until the creditor subjectively determines that the debtor has shown the creditor that it can provide adequate protection of the creditor’s interests. If a dispute ensues, it is the debtor’s obligation to litigate the adequate protection issue in turnover proceedings before the bankruptcy court. In the sixth, eighth, ninth, and tenth circuits, the procedure is just the opposite. Upon the debtor filing for Chapter 13, the creditor must im- mediately return the asset to the bankruptcy estate, and, if the debtor and creditor cannot achieve accord on the issue of adequate protection, it is the creditor’s obliga- tion to file a motion before the bankruptcy court.

Here, a creditor refused to relinquish possession of an asset because it felt that the debtor could not adequately protect its interests. The debtor claimed that this refusal violated the Bankruptcy Code’s stay provisions and moved for sanctions against the creditor. The bankruptcy court denied this motion. Because we find that a plain reading of the Bankruptcy Code’s provisions, the Supreme Court’s decision in United States v. Whiting Pools, Inc., 462 U.S. 198, 211 (1983), and various practical considerations require that a creditor immediately return a seized asset in which a debtor has an equity interest to the debtor’s estate upon his filing of Chapter 13 bankruptcy, we reverse.

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

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Frank Jones v. State of Indiana (NFP)

Jason Manwarren v. State of Indiana (NFP)

Jeffery Layton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court to hear Terre Haute mayoral race dispute tomorrow

A reminder that at 10:05 AM tomorrow, the Supreme Court will hear oral argument in the case of Kevin D. Burke v. Duke Bennett.

This is the Terre Haute mayoral race / Little Hatch Act dispute. Transfer was granted to both Appellant and Appellee. See this ILB entry for background. See the Nov. 13, 2008 ILB summary of the COA opinion here. See also this long list of earlier ILB entries on the Terre Haute mayoral dispute.

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

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Upcoming Oral Arguments

Ind. Courts - Justice Rucker on judicial diversity

Patrick Guinane of the NWI Times writes today about an interview he conducted o Tuesday with Indiana Supreme Court Justice Robert Rucker "to get his reaction to President Obama’s nomination of Judge Sonia Sotomayor to U.S. Supreme Court." Some quotes:

Rucker, who grew up in Gary, was the first black named to the Indiana Court of Appeals when then-Gov. Evan Bayh appointed him in 1991. And Rucker is the second African American to sit on the state’s high court.

Rucker, who chairs the panel that vets Lake County Superior Court candidates, made clear that he doesn’t know Sotomayor’s record and cannot make an endorsement one way or another. But he said bringing diversity to the bench is crucial to instilling public confidence in the judiciary.

Here’s a transcript of what Rucker had to say:

“I think that it’s important that courts are places where justice is in fact rendered impartially and fairly and all that. But I think they should be perceived (as representing the populous) as well.

“A judiciary that is culturally diverse and one that reflects a broad range of experiences, etc. is important in addressing that perception. And I believe that in Lake County, for example, where I serve as chair of the (judicial) nominating commission, our system has produced an incredibly diverse bench. …

“I believe that the citizens of Lake County would perceive that their judicial system - the judges there - are fair because, you know, you walk into court and you can see a woman judge or a Hispanic judge or an African-American judge. And that has got to be just absolutely reassuring.” * * *

“What’s really at stake - whether it’s on the national level or on a state level - is how our citizens view and perceive our courts. The greater the diversity on those benches, I think, the greater likelihood that we will have a public and a citizenry that respects the court and sees them as a place where they can go and be treated fairly and impartially.”

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Indiana Courts

Courts - Judge Sotomayor's Supreme Court nomination

Several items of interest today:

Gerard N. Magliocca, a law professor at Indiana University at Indianapolis, has a column today in the New York Times, on the page where Maureen Dowd and Thomas L. Friedman usually appear -- they are off today, the paper notes.

Magliocca at one time served as an intern to the Judge, and later "was a law clerk to Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit and observed Judge Sotomayor after her elevation to that court." He concludes:

For those of us who think that intellectual rigor and fairness are the crucial factors, no matter which party the president hails from, there is no question that Judge Sotomayor should be confirmed.
CNNPolitics.com has a story headed "Sotomayor would be part of court's Catholic shift." Some quotes:
As Supreme Court hopeful Sonia Sotomayor breaks ground for Hispanics, she is poised to add an exclamation point to another historic demographic shift: the move to a Catholic court.

Sotomayor was raised Catholic and if she is confirmed, six out of nine, or two-thirds of the justices on the court will be from the faith. Catholics make up about one-quarter of the U.S. population.

"It's most unusual," said Barbara Perry, a government professor at Sweetbriar College who was already writing a book about Catholics on the Supreme Court when Sotomayor was named as the next nominee.

"Presidents used to reserve a Catholic seat and a Jewish seat on the Supreme Court," Perry told CNN Radio. "Now we've moved from a Catholic seat on the court to a Catholic court."

Of the 110 people who have served on the Supreme Court, 11 have been Catholic. Five of those justices -- Samuel Alito, Anthony Kennedy, Antonin Scalia, Clarence Thomas and Chief Justice John Roberts -- are currently on the court.

"It is more than a random selection process that yielded the current five Catholics on the bench," Perry said.

The five current Catholic justices were appointed by Republican presidents, which Perry notes may be a key reason why so many Catholics have joined the high court in recent years.

"It's their tie to conservative Catholicism which made them agreeable to (Republican) presidents' ideology," she said. * * *

In 1987, a lone Catholic justice, William J. Brennan, Jr., sat on the court. A generation later, that number is poised to become six.

"What that tells is that in our politics, religion doesn't matter anymore," Perry said. Then she added: "I don't think our politics are ready for an Islamic justice at this point."

The current court is composed of two Jewish members -- Justices Stephen Breyer and Ruth Bader Ginsburg. If Sotomayor joins the bench, Justice John Paul Stevens would be the solitary Protestant on a court once dominated by white Protestant men.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Courts in general

Ind. Law - More on "Mitchell could reauthorize golf carts on town streets under new law"

Updating this ILB entry from May 19th, re HEA 1483, two stories:

"Golf cart decision ahead for city" is the headline to a story dated May 20th in the Bluffton News-Banner, reported by Dave Schultz:

The legislature has given Indiana cities and towns permission to allow golf carts on their streets and highways, effective July 1. Bluffton Common Council members will be considering options next month.

City Attorney Andrew Carnall told council members Tuesday night that the Indiana General Assembly, in House Enrolled Act 1483, has exempted golf carts from rules that have that have kept them off of city streets. As a result, the council must decide whether to give the green light to the electric slow-speed vehicles.

The issue had come up before, in Bluffton and in front of other city and town councils throughout the state. When gasoline was at $4 a gallon, which was the status about a year ago, many Hoosiers wanted to take their golf carts out for errands — and some municipalities passed ordinances allowing them to do so. However, the Indiana State Police said that any vehicle on a public road must be licensed, must have headlights and windshields, and must follow other requirements set forth by state law.

The legislature specifically removed golf carts from those requirements, however. If an Indiana city or town approves legislation, golf carts can legally be operated on city streets.

Carnall said he would research potential ordinances and would get back to council members at their June 2 meeting.

Council members realize they would have a decision to make.

“Give it some thought,” Mayor Ted Ellis said.

“You’d want to have something in place by July 1, definitely,” Carnall said.

Council member Bette Erxleben wondered if cars would be held up by golf carts on Main Street, which is Ind. 1. She also wondered if flashing lights could be required on top of them; Ellis wondered about requiring the 10-foot-tall “bicycle flags” that help call attention to slow-moving vehicles.

“I’ve had people say to me that on Main Street, it’s probably not appropriate,” council member Michael Morrissey said.

Ellis said he knows that some of the people who have asked about using golf carts in city streets are aware of the new legislation, and he expects them to return to an upcoming council meeting to press their case.

The same day, this story, reported by Ron Hamlton, appeared in the Shelbyville News:
Although Hoosier communities may now enact local ordinances allowing residents to drive golf carts on city streets, alleys and roadways, don't look for them any time soon in Shelbyville, according to city officials.

"In my opinion, our city roadways and streets are no place for golf carts," said Mayor Scott Furgeson. "They are unsafe, hard to see and dangerous. I definitely will not encourage the city council members to pass ordinances allowing them to be legally driven on our city streets." * * *

"If the council asks my opinion regarding the use of golf carts on city roads and streets, I would strongly advise them against it," said city Police Chief Bill Elliott. "They are slow moving and are difficult to see. They roll over easily and are not built well enough to protect occupants from even the slightest of impacts with other vehicles or stationary objects."

The chief noted that it would be very difficult to get anywhere in Shelbyville with a golf cart without driving illegally on state highways like North and South Harrison streets, which are part of State Road 9, and East Broadway Street and East Michigan Road, which are part of State Road 44.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Indiana Law

Ind. Law - "Plymouth motel pays price for meth cleanup"

Updating earlier ILB entries, including this one from March 30, 2009 ( "Meth lab cleanup a hassle for landlords"), and this one from May 10, 2009 ("Scores of Indiana homes contaminated by meth labs sit abandoned"), both of which bear rereading, a story today in the South Bend Tribune, by Virginia Ransbottom, reports:

PLYMOUTH — When Indiana State Police arrested an Argos couple last month in a motel room, accusing them of making methamphetamine, the inn's owners did their best to help police and clean up the property.

But weeks later, they are baffled by the cleanup procedure and worried about the high cost and the possible stigma to the small business.

"It's frustrating," said Economy Inn owner and manager Chetna Patel. "We work with police to try and keep that kind of activity out of here and it ends up costing us."

The incident occurred April 24 after a call came in to the Marshall County Multi-Agency Drug unit tip line saying several people were coming and going from the room and citing a strong odor of ammonia.

An occupant of the room was also seen placing a bag in a Dumpster at the nearby Marathon Station.

According to court records, Plymouth police found the bag to contain meth-making components and then found a meth lab in the room.

After the ISP meth lab suppression unit seized the drugs and disposed of hazardous chemicals, a sign was posted on the door warning of clandestine laboratory activity.

The sign said hazardous substances or waste product might still be on the property, either in the buildings or in the ground itself, and to exercise caution while on the premises.

Patel thought the incident was over and proceeded cautiously with maintenance airing the room out, cleaning walls, carpet and repainting. * * *

More than a week later, with an operational lab possibly leaving behind hazardous chemical residue, Patel received a certified letter from the Marshall County Health Department, condemning the room until a decontamination certificate is received from the Indiana Department of Environmental Management. * * *

Jason Faulstich, of the ISP, said that after the police leave, it is up to the property owner and health department to work things out.

"The health department of each county determines if the house is condemned or not and if people are allowed back in," he said.

The ISP faxes the occurrence report to the county's health department, which is available to the public.

In Marshall County, the health department reviews the report, and within about a week, the property owner receives a "do not occupy" order by certified mail that tells of the state rule for IDEM certified testing.

A meth raid also occurred at the Bremen Inn, but he said the property was not considered hazardous.

"If no actual operating lab is found, we don't send a letter," said Marshall County health director Wes Burden. "And removing items is a real gray area with IDEM. The rule just addresses the structure."

"There's no gray area," said IDEM senior environmental manager Steve Mojonnier. "It's not in the rule. The only thing about household products is that they must be taken out before testing because it can interfere with test procedures."

But if the rule is so strict about testing the structure for hazardous residue, wouldn't the household products be hazardous, too?

Mojonnier said he did not know how much risk was posed.

"That's what they find out when tested," Mojonnier said. "They need professional advice to find out how safe it is."

In St. Joseph County, the health department responds as soon as the occurrence report is received. It pastes a sign on the door that says the property is not fit for human habitation and nothing can be removed from the premises, including the sign on the door.

"We allow them to take very personal belongings and some clothes, but no furniture or draperies," said Marc Nelson, St. Joseph County's environmental health manager. "We take a strong stance, especially if children are involved."

How quickly the health department responds depends on how constrained the department is, Mojonnier said.

"Health departments are independent entities who operate under their own county," he said. "The state doesn't run it, and they have to look at their own budget and priorities." * * *

Travis Howell, 22, and his wife, Elisha Dawn Coombs-Howell, 23, of Argos, were both charged with dealing in meth, a Class B felony and possession of meth, a Class D felony. Both will be represented by a public defender.

Patel has received a testing and cleanup quote for $3,000.

"Why will the government pay their bill and not ours?" Patel wondered.

Mojonnier said he knew of no government funding available to cover the expense.

Posted by Marcia Oddi on Wednesday, May 27, 2009
Posted to Environment | Indiana Law

Tuesday, May 26, 2009

Ind. Gov't. - Yet more on: "Pension Funds Object to Chrysler Sale, Want Trustee"

Updating this morning's entry, from the WSJ this afternoon:

NEW YORK (Dow Jones)--A U.S. district judge on Tuesday declined to hear a challenge by a group of Indiana pension funds that Chrysler LLC's sale is unconstitutional because of the U.S. government's heavy involvement in the deal.

At a hearing Tuesday, U.S. District Judge Thomas Griesa in Manhattan refused to move the Chrysler case from bankruptcy court to the district court, allowing a sale hearing to proceed as planned on Wednesday.

The judge, who announced his decision from the bench, also rejected a motion to stay the hearing. The judge is expected to put out a written opinion outlining his decision later Tuesday.

"There should be a fair opportunity to appeal," the judge said, indicating he wouldn't like to see an "exorbitant" bond required if the bankruptcy court approves the sale and it is challenged on appeal.

Chrysler has indicated in court papers that anyone who challenges the sale on appeal should be required to post a $2 billion bond.

The pension funds - the Indiana State Teachers Retirement Fund, the Indiana State Police Pension Fund and the Indiana Major Moves Construction Fund - own about $42.5 million of Chrysler's $6.9 billion in secured debt.

[Updated] See also this story from the IBJ.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Indiana Government

Courts - California Supreme Court upholds Prop 8 ban on same-sex marriage

As expected, the California Supreme Court has just issued a ruling upholding the Prop 8 ban on same-sex marriage, but retaining the 18,000 same-sex marriages performed before Prop 8 became law.

[More] How Appealing has just posted this entry.

[Still More] Here is the NYT coverage, with a link to the 185-page, 6-1 opinion. Here is a story in the Washington Post.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

In the Matter of S.S. and A.S.; A.P. v. Marion Co. Division, Indiana Dept. of Child Svcs. (NFP)

Bertram Anthony Graves, M.D. v. Bingham McHale, LLP (NFP)

Dwight G. Fry v. Prison Health Svcs. of Indiana, LLC (NFP)

NFP criminal opinions today (2):

Rachel N. Mills v. State of Indiana (NFP)

Wayne Mitchell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Chicago judge passed over for high court"

ABC 7 News out of Chicago has this report.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Courts in general

Courts - SCOTUS issues three today [Updated]

Three opinions today from the SCOTUS, briefly summarized here by Lyle Denniston of SCOTUSLaw Blog.

See this AP story headed "Court Says States Can't Bar Some Rights Suits," re the ruling in Haywood v. Drown:

The Supreme Court has ruled that states may not prevent people from filing civil rights claims against government workers in state courts.

The court, by a 5-4 vote Tuesday, said people have a choice whether to file their claims in federal or state courts. Filing fees are cheaper and courthouses often are closer in the state system, potentially important factors for prison inmates and the poor.

"Justices Ease Rules on Questioning Suspects" is the headline to this AP story on a major ruling today:
WASHINGTON (AP) -- The Supreme Court has overturned a long-standing ruling that stops police from initiating questions unless a defendant's lawyer is present, a move that will make it easier for prosecutors to interrogate suspects.

The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present. * * *

The Michigan v. Jackson opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time. He dissented from the ruling, and in an unusual move read his dissent aloud from the bench. It was the first time this term a justice had read a dissent aloud.

"The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel," Stevens said. Overruling the Jackson case, he said, "can only diminish the public's confidence in the reliability and fairness of our system of justice."

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Courts in general

Courts - Judge Sonia Sotomayor is President Obama's first Supreme Court nominee

Updating this entry from earlier this morning, the nomination is now official. If you did not see the President's nomination and Judge Sotomayor's acceptance, watch them here on C-SPAN.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Courts in general

Law - Same sex marriage poses interesting legal issues

Early this afternoon, the Supreme Court of California will announce its decision in the Prop. 8 challenge. The headline to this LA Times story today reads: "California Supreme Court to issue Prop. 8 decision today: Rulings are expected on the legality of the measure barring same-sex marriage and the status of those who married before it was approved by voters."

Meanwhile, there has been much written recently about legal issues posed by same sex marriage. "The Latest Battle in the Same-Sex Marriage War" was the heading of this WSJ Law Blog entry by Ashby Jones dated May 21st. It begins:

To date, the more heated and visible battles over same-sex marriage have played out at the state level, either in courtrooms, at the ballot-box or in legislative halls.

But an interesting battle is now brewing at the federal level. The question is this: does the 1996 federal Defense of Marriage Act, which defines marriage as a union of one man and one woman, require the government to ignore same-sex marriage even if a state chooses to recognize them?

At stake is more than a simple federal acknowledgment: Only opposite-sex spouses are eligible for many federal benefits after the death of a spouse.

A lawsuit challenging DOMA is playing out in a Massachusetts federal court. Dean Hara, the widower to Gerry Studds (pictured, right), the first openly gay U.S. congressman — who died in 2006 — along with several others, is challenging the portion of DOMA that keeps them from getting federal marital benefits. Click here for the WSJ story.

A victory for Hara and his cohorts would increase the financial benefits of gay marriage, which could help spread the practice. Though legal experts say courts would be reluctant to invalidate laws set by Congress, supporters hope a victory will put pressure on Congress to repeal DOMA, a rescission that President Obama says he favors even though he opposes gay marriage.

Here is the companion story from ther May 21st WSJ.

IIya Somin wrote a May 25th entry in The Volokh Conspirary headed "The Impact of Judicial Power on Gay Marriage Revisited."

A NY Times article by Matt Bai talks about a generational shift. A quote:

A decade later, it is this emergent political ethos that is rapidly asserting itself in the debate over gay marriage, as judges and legislators across the land — most recently Legislatures in New Hampshire and Maine — reconsider the issue. According to the group Freedom to Marry, about 13 percent of Americans now live in a state that allows gay marriage or recognizes marriage licenses issued in other states, and that percentage is certain to rise. The gist of the disagreement now isn’t partisan or theological as much as it is generational. Unlike their parents, younger Americans and those now transitioning into middle age have had openly gay friends and colleagues all their lives, and they understand homosexuality to be a form of biological happenstance rather than of emotional disturbance. They’re less inclined to restrict the personal decisions of gay Americans, even if they don’t necessarily want the whole thing explained to their children as part of some politically correct grade-school curriculum. In a sense, the gay rights movement of an earlier era was so successful in changing social attitudes that the movement itself can now seem obsolete, in the same way that younger Americans who have grown up with the premise of environmentalism in their daily lives consider Greenpeace to be a kind of hippie anachronism.
Peter Steinfels, writing in the NY Times on May 22nd, reported a different viewpoint in an article that begins:
The movement toward legalizing same-sex marriage in New Hampshire has hit a bump. Gov. John Lynch, a Democrat, said last week that he would sign a same-sex marriage bill only if it included new language expanding protection for religious institutions that might object to same-sex marriage. On Wednesday, the state’s House of Representatives rejected that amendment. So for the moment, the matter is stalled in New Hampshire.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to General Law Related

Courts - More on 9th Circuit strikes down California violent video game ban

Updating this ILB entry from Feb. 21st (which has a lot of Indiana-related background), Gloria Goodale, staff writer of The Christian Science Monitor, had this story May 20th. Some quotes:

Los Angeles - Lawmakers from California to Indiana have had violent video games in their sights for decades, but courts have struck down nearly a dozen laws aimed at restricting sales to minors. The US Supreme Court, though, has never entered the fray. That may change.

On Wednesday, California Attorney General Edmund "Jerry" Brown petitioned America's highest court to hear a video-game case concerning a 2005 state law that has been on hold since it was enacted, struck down by the Ninth Circuit Court of Appeals before it could go into effect. The law would ban sales to minors of mature-themed games and impose fines of up to $1,000 for violations.

"The state has a compelling interest in this issue," says state Sen. Leland Yee, the law's original sponsor. "It begs for a ruling by the high court in order to lay out some ground rules."

But the likelihood is small that the nine justices will take up the California petition, say many legal analysts, citing First Amendment issues about restrictions on free speech, particularly in the field of entertainment. * * *

Jurists such as federal appellate court Judge Richard Posner have declined to support such regulation. In 2001, the judge wrote for the panel that struck down an Indianapolis law against video-game violence: "To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

Pointing to the legal challenges inherent in such regulation, entertainment lawyer Ezra Doner has a simpler explanation for the filing.

"It's political grandstanding" by California's Jerry Brown, says the New York attorney. "It's a no-lose proposition for the attorney general. Who would say they don't want to keep children safe?"

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Courts in general

Courts - Judge Sonia Sotomayor.will be Supreme Court nominee

Judge Sonia Sotomayor.will be Supreme Court nominee. Here is an AP story by Bob Feller that begins:

WASHINGTON -- President Barack Obama tapped federal appeals Judge Sonia Sotomayor for the Supreme Court on Tuesday, officials said, making her the first Hispanic in history picked to wear the robes of a justice.

If confirmed by the Senate, Sotomayor, 54, would succeed retiring Justice David Souter. Two officials described Obama's decision on condition of anonymity because no formal announcement had been made.

Administration officials say Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.

A formal announcement was expected at midmorning. * * *

Sotomayor is a self-described "Newyorkrican" who grew up in a Bronx housing project after her parents moved to New York from Puerto Rico. She has dealt with diabetes since age 8 and lost her father at age 9, growing up under the care of her mother in humble surroundings. As a girl, inspired by the Perry Mason television show, she knew she wanted to be a judge.

A graduate of Princeton University and Yale Law School, a former prosecutor and private attorney, Sotomayor became a federal judge for the Southern District of New York in 1992.

As a judge, she has a bipartisan pedigree. She was first appointed by a Republican, President George H.W. Bush, then named an appeals judge by President Bill Clinton in 1997.

Here is preliminary NY Times coverage.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Courts in general

Ind. Gov't. - Still more on: "Pension Funds Object to Chrysler Sale, Want Trustee"

"GM creditors watch Chrysler lawsuit" is the headline to a story by Bernard Simon in Toronto and Nicole Bullock of Financial Times dated May 25th:

Similarly, the Chrysler creditors, a group of three Indiana pension funds with secured claims, contends that Chrysler, guided by the Obama administration’s auto industry task force, has violated their legal rights by offering them less favourable terms than the UAW.

Tom Lauria, a partner at White & Case, who is representing the Indiana funds, said that the case could be “a template for levelling the playing field” in the two restructurings. Mr Lauria is also in talks with a newly formed group of GM bondholders contemplating legal action.

In dealing with the GM bondholders, the administration is torn between two compelling arguments. On one hand, a speedy restructuring could be vital to GM’s survival, including the jobs of its 112,000 North American employees, as well as the stability of thousands of parts suppliers and dealers.

But many of GM’s estimated 200,000 bondholders are small investors with far more public sympathy than the banks and hedge funds that had protested against the terms of Chrysler’s restructuring. The small investors own about a fifth of the $27bn outstanding. * * *

Most of Chrysler’s other creditors succumbed to political pressure this month to acquiesce in a plan that would enable a “new” slimmed-down Chrysler to emerge from bankruptcy protection in an alliance with Italy’s Fiat.

The bankruptcy court is expected to approve the deal tomorrow, paving the way for the new company to emerge from Chapter 11.

The Indiana funds will present their case to a district court in New York. Should the district judge decide the case belongs in bankruptcy court, the funds can still raise objections at tomorrow’s hearing.

Indiana’s state treasurer Richard Mourdock said he had been barraged by critical e-mails since the pension funds challenged the Chrysler deal last week.

"Chrysler slams Indiana State Treasurer's demands" is the title of this Reuters story dated May 25th:
NEW YORK, May 25 (Reuters) - U.S. automaker Chrysler on Monday slammed Indiana State Treasurer Richard Mourdock as making demands that would ultimately push the carmaker into liquidation -- resulting in the loss of more than 4,000 jobs and 9,000 retiree pensions in Indiana alone.

Mourdock, who oversees pension funds invested in Chrysler debt, has objected to Chrysler LLC's plan to quickly sell itself in bankruptcy, claiming it is a dangerous path that would hurt pensions for thousands of his state's retirees.

The Indiana pension funds have filed court papers requesting that an examiner be appointed to investigate Chrysler's business decisions, and that the company be placed in the hands of a Chapter 11 trustee who can act independently of the government. The funds also mounted a challenge to the company's plan in U.S. District Court.

Chrysler claimed in a statement on Monday that Mourdock, a Republican, is willing to put Chrysler in liquidation over less than 1 percent of the three funds' assets.

It calculates that the combined Chrysler-related investments in the three state pension funds in question totaled approximately $17 million and the cumulative loss under the proposed deal would be about $2 million.

"The treasurer's actions lead one to wonder if his motives are financial or political," the statement said.

NPR's Morning Edition has this story:
The Chrysler bankruptcy proceedings have been moving quickly and smoothly. In fact, the automaker has a hearing Wednesday that could help a new, healthier version of the company emerge from court next month. But some legal scholars say the rights of people who loaned Chrysler money have been trampled in the process.
Listen here.

Posted by Marcia Oddi on Tuesday, May 26, 2009
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/25/09):

Thursday, May 28th

Next week's oral arguments before the Supreme Court (week of 6/1/09):

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 5/25/09):

Next week's oral arguments before the Court of Appeals (week of 6/1/09):

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 Tuesday, May 26, 2009
Posted to Upcoming Oral Arguments

Monday, May 25, 2009

Environment - More on "Feds warn state agency on pollution enforcement"

Updating this ILB entry from yesterday, Gitte Laasby of the Gary Post-Tribune has a different take today:

The U.S. Environmental Protection Agency will not ask the Indiana Department of Environmental Management to change its proposed enforcement policy, reinstate contracts with local air agencies in Gary and Hammond, or maintain a separate enforcement office.

The EPA made the decision despite objections from Indiana's major environmental groups that IDEM's proposed new enforcement policy does not comply with federal regulations and would make IDEM less likely to enforce against a facility for violating its permits.

EPA's acting regional administrator sent his response to IDEM Commissioner Tom Easterly last week. * * *

In the letter to IDEM, EPA indicated IDEM should consider potential as well as actual threats and that EPA would review IDEM's performance to make sure the agency complies with federal law. It said IDEM has the discretion to decide who should enforce and do local air monitoring, but that IDEM should seek input from stakeholders on its decisions.

"While you have adequately addressed our concerns regarding the three changes, we do want to highlight concerns regarding intent and transparency," acting regional administrator Bharat Mathur wrote in the May 21 letter. "It is our expectation that you will implement the necessary steps to overcome these perceptions and ensure a high level of communication in the state's programs."

Before EPA's involvement, IDEM posted the proposed policy on its Web site, but did not put a public notice in the Indiana Register as the law requires.

BTW, as the ILB pointed out in this March 3rd entry correcting a P-T article from that date, and despite the P-T's statement again that IDEM "did not put a public notice in the Indiana Register as the law requires," there is in fact NO such requirement in the law. Read the March 3rd ILB entry for details.

Posted by Marcia Oddi on Monday, May 25, 2009
Posted to Environment

Courts - "Police use GPS to track suspects despite murky law"

Updating earlier ILB entries on GPS trackers, Ryan J. Foley of the AP has this long report today.

Posted by Marcia Oddi on Monday, May 25, 2009
Posted to Indiana Courts

Ind. Courts - "Judge rules against Westfield on road fees"

Chris Sikich and Carrie Ritchie report today in the Indianapolis Star:

Westfield might have made a costly mistake.

Ruling on a lawsuit without holding a trial, a Hamilton County judge has found that a road-impact-fee ordinance Westfield used from roughly 2004 to 2008 violated state law.

Now, the city might have to refund some of the millions it collected from developers, businesses and others. * * *

The city collected about $3 million in road-impact fees under the ordinance, but not everyone who paid fees might be eligible for a refund, Westfield City Attorney Brian Zaiger said. * * *

Westfield is one of a handful of communities that charge road-impact fees, including Fishers, Noblesville and Zionsville.

Attorney Mike Howard, Noblesville, helped write the state law in 1991 that allowed local governments to charge park- and road-impact fees. He said they're expensive to implement, have strict guidelines and are aimed at growing communities that approve hundreds of building permits each year.

Indianapolis, Greenwood, Carmel, Avon and Brownsburg are among communities that do not charge road-impact fees.

"There are not many governments who even have road-impact fees," Howard said. "You're not going to have it in a town that issues 14 building permits a year."

Westfield isn't the only government to face a challenge in court over impact fees. Zionsville lost a lawsuit by a builder's organization and in April returned nearly $400,000 in park-impact fees the court ruled it had improperly charged area homebuilders. * * *

In Westfield's case, Hamilton Superior Court Judge William Hughes last month decided a class-action lawsuit should be created. He ordered the city to provide information about businesses, developers and residents who paid road-impact fees under the ordinance.

If Hughes refuses to overturn his ruling at a hearing in July, the city plans to go to the Indiana Court of Appeals.

According to the lawsuit, the trouble started in 2005 when the town charged Gerhard Martens, owner of Westfield-based Metric Seals, $9,130 in road-impact fees for warehouse space he added to his office at 17030 Westfield Park Road. Metric Seals is a supplier of European and Japanese hydraulic and pneumatic seals.

Martens appealed to the city's review board, saying Westfield was wrong to charge the fees because the warehouse would not increase traffic. The board sided with the city, and Martens sued.

The ILB would like to post a copy of this opinion; let me know if you can help.

Posted by Marcia Oddi on Monday, May 25, 2009
Posted to Indiana Courts

Courts - "Threats to Federal Judges, Prosecutors Soaring"

Jerry Markon reports today in the Washington Post in a lengthy story -- here are a few quotes:

Threats against the nation's judges and prosecutors have sharply increased, prompting hundreds to get 24-hour protection from armed U.S. marshals. Many federal judges are altering their routes to work, installing security systems at home, shielding their addresses by paying bills at the courthouse or refraining from registering to vote. Some even pack weapons on the bench.

The problem has become so pronounced that a high-tech "threat management" center recently opened in Crystal City, where a staff of about 25 marshals and analysts monitor a 24-hour number for reporting threats, use sophisticated mapping software to track those being threatened and tap into a classified database linked to the FBI and CIA.

"I live with a constant heightened sense of awareness," said John R. Adams, a federal judge in Ohio who began taking firearms classes after a federal judge's family was slain in Chicago and takes a pistol to the courthouse on weekends. "If I'm going to carry a firearm, I'd better know how to use it."

The threats and other harassing communications against federal court personnel have more than doubled in the past six years, from 592 to 1,278, according to the U.S. Marshals Service. Worried federal officials blame disgruntled defendants whose anger is fueled by the Internet; terrorism and gang cases that bring more violent offenders into federal court; frustration at the economic crisis; and the rise of the "sovereign citizen" movement -- a loose collection of tax protesters, white supremacists and others who don't respect federal authority. * * *

State court officials are seeing the same trend, although no numbers are available. "There's a higher level of anger, whether it's defendants or their families," said Timothy Fautsko, who coordinates security education for the National Center for State Courts in Williamsburg and said threats are coming from violent offenders along with divorce, probate and other civil litigants.

Posted by Marcia Oddi on Monday, May 25, 2009
Posted to Courts in general

Law - Obama issues policy memo on federal pre-emption; perhaps pre-empting new regulatory czar

Recall this entry from Sept. 11, 2007, headed "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?" And this one from Dec. 1, 2007.

Then there is this long list of ILB entries on the Supreme Court's ruling this spring in the case of Wyeth v. Levine, and the lead-up to the ruling.

As reported in a number of stories late last week, including this one by Alicia Mundy and Brent Kendall in the Wall Street Journal that begins:

In a sweeping order Wednesday, President Barack Obama called for a rollback of Bush administration regulations designed to protect companies from product-liability lawsuits in state courts.

The memo didn't name specific industries but it could affect a wide range of consumer products subject to both federal and state regulation.

Companies have long complained about having to deal with 50 different state rulebooks, and the Bush administration aggressively took up the issue. It encouraged federal agencies to issue rules pre-empting state laws and declared that a single federal standard held sway.

In a two-page memo, President Obama reversed that stance. He said federal agencies and departments should claim that state law is pre-empted by federal law only when there is a well-defined legal basis. He ordered agencies to review regulations from the past 10 years to see if the government had improperly asserted federal pre-emption.

Here is the 2-page executive order. Here is an AP story by Peter Yost, dated May 20th. A few quotes:
WASHINGTON (AP) -- The Obama White House on Wednesday undid a Bush administration policy that used federal regulations to undermine a wide range of state health, safety and environmental laws.

Many of the federal regulations limited the ability of injured consumers to sue companies in state courts. * * *

In a memo to government department heads, Obama said that pre-emption of state law should be undertaken only with full consideration of the legitimate prerogatives of the states.

The Bush administration rule-making effort also had undercut state financial regulation and state consumer protections in many fields.

Often, the pre-emption language was written into the preamble of federal regulations without the public first having an opportunity to comment on it.

The new approach will look both backward and forward.

The Obama administration will ask agencies to go back and find Bush-era regulations that contain pre-emption language in the preambles or in the body of the regulations and that are not justified by law.

Under the new approach, the administration will drop the Bush administration's approach of putting pre-emption language into the preamble of a regulation, unless it also is contained in the regulation itself. And any pre-emption language in the regulation itself has to be legally justified.

The May 13th WSJ had an article by John D. McKinnon on nominee Cass Sunstein. It is interesting that the new administration did not wait for Sunstein's confirmation to announce this major policy change. Some quotes from the earlier story:
Harvard law professor Cass Sunstein cruised through Tuesday's Senate confirmation hearing on his nomination to be White House regulatory czar, heartening business interests who see him as a potential ally in an administration expected to step up rule making.

In academic writings, Mr. Sunstein has advocated requiring agencies to demonstrate that new regulations' benefits clearly outweigh their costs, a policy long advocated by conservatives but viewed with suspicion by liberals who have seen it as a way to kill or weaken rules. * * *

Mr. Sunstein was nominated in April to run the obscure but powerful Office of Information and Regulatory Affairs, or OIRA, within the White House Office of Management and Budget.

Created by Congress in 1980 as a central clearinghouse for new agency rules, OIRA has been criticized by consumer advocates for delaying or watering down regulations, particularly under Republican administrations. Some left-leaning groups, including OMB Watch and the Center for Progressive Reform, have raised concerns that OIRA might maintain that role under Mr. Sunstein.

At Tuesday's hearing, Mr. Sunstein sought to allay concerns that he will be hostile to new rules and sympathetic to business. He tempered his advocacy of cost-benefit analysis, saying there are areas in which new regulations could be justified even when the economic upside can't be demonstrated. As an example, he cited rules requiring equal access for people with disabilities.

Cost-benefit analysis shouldn't put regulation "in an arithmetic straitjacket," he said. * * *

Mr. Sunstein also said he favors requiring agencies to explain why they are imposing rules that aren't justified by a cost-benefit analysis. And he said he would seek to maintain OIRA's central position in reviewing new regulations.

Much of what OIRA does is determined by executive order. If he is confirmed, Mr. Sunstein would be able to heavily influence the content of orders and their subsequent interpretation and implementation.

Posted by Marcia Oddi on Monday, May 25, 2009
Posted to General Law Related

Ind. Law - Still more on "Lawmaker adding 'doomsday' to budget planning: Checks if state may tap reserve to stop shutdown"

This morning's Indianapolis Star has a front-page story headed "What if lawmakers miss budget deadline? Government shutdown could affect funding for schools and much more," reported by Mary Beth Schneider. Some quotes from the latter half of the lengthy story:

Groups representing schools and social services are watching closely.

For schools and universities, being late with the budget already has had consequences.

The State Student Assistance Commission of Indiana has been unable to let students know whether they will be getting scholarships, because the money has yet to be appropriated. Last year, the group gave students 72,909 grants totaling $233.5 million.

And state universities have yet to say how much tuition will be because they don't know what their state funding is.

Larry MacIntyre, a spokesman for Indiana University, said the uncertainty is causing anxiety for thousands of families.

"We wish we could put their minds at ease, but it just is not possible to set tuition for two years without having any idea what the appropriation is," he said.

The university is beginning to work on backup plans for how to proceed if the legislature doesn't meet the June 30 deadline.

School districts also are unable to finalize their budgets for the coming year because they don't know how much state money they'll receive, said Dennis Costerison, executive director of the Indiana Association of School Business Officials.

Even if a budget is passed on June 30, he said, that leaves little time for schools to prepare those budgets, which must be publicly advertised in August. Failure to pass the budget, he said, would be calamitous.

School districts statewide get about $532 million a month from the state. If that money isn't distributed, Costerison said, schools would have to borrow the money, with the costs of financing the loans taken out of the pockets of property taxpayers

"The people who would really be impacted would be the property taxpayers," Costerison said. "They'd be paying for the interest. No legislator, and definitely not the governor, wants to see that happen, because all of a sudden there you go again: You're tapping the property taxpayer because the state's not getting their job done."

Mark St. John, a lobbyist for various social service groups, including Indiana Family Services, said there's an undercurrent of concern that the deadline won't be met.

State officials say services such as Medicaid, unemployment compensation and food stamps would not be disrupted in the event of a budget meltdown, as anything that's federally funded or funded by things not in the budget would not be affected.

St. John isn't so sure. He recalled the state could not renew or initiate contracts with health-service providers while the budget was in limbo in the early 1990s. St. John raised questions about whether the private groups hired by the state to handle such things as food stamps could continue to perform their jobs without a budget appropriating the money to pay them.

"I certainly think that both legislative leaders and (state) agency people are considering those things," he said. "But certainly, there's questions to be asked, questions that Hoosiers across the state should be expecting answers to."

A companion story by Ms.Schneider is headed: "Governor says shutdown not an option: Daniels adamant that state will produce a budget; officials have few workarounds." Some quotes
Under Indiana's constitution, "no money shall be drawn from the Treasury, but in pursuance of appropriations made by law."

Translation: If a dollar isn't specifically appropriated by the legislature, the state can't spend it.

And the budget is the place where virtually all appropriations are made for everything from state parks to local schools.

Moreover, while at least 11 states have so-called "continuing resolution" laws on the books to allow state government to continue operating without a budget, Indiana isn't among them. Sen. Patricia Miller, R-Indianapolis, offered such a measure during the 1993 budget crisis, but it wasn't enacted.

Daniels said he'd "demand the legislature give us some sort of continuing resolution."

But House Speaker B. Patrick Bauer, D-South Bend, didn't give that an automatic thumbs up.

Daniels, he said, is sitting on $1.3 billion in reserves plus millions more in federal stimulus dollars that he thinks the governor could use to fund schools and essential services.

Bauer also dismissed as a Washington gimmick the idea of passing a continuing resolution to let the state operate on the last budget enacted until a new one is passed.

"See, he's from Washington, D.C. They do things like that," Bauer said of Daniels. "Look. Nothing is ruled out. . . . But I don't know if we want to begin to incorporate any more Washington, D.C., philosophy into this."

Although some foresee catastrophe if Indiana wakes up on July 1 with no new budget, Bauer said Daniels has enough tools to keep essential services operating.

"He does have more money than any other governor in that situation in Indiana history," Bauer said.

An Indiana law enacted in 1869 specifically keeps open only these areas in the event of no budget: the Indiana Veterans Home; the Indiana Boys School; and the Indiana schools for the blind and deaf. In 1993, then-Gov. Evan Bayh and his staff declared that, if no budget passed, they also would keep the state prisons and State Police operating to ensure public safety.

Bauer said Daniels could do the same and broadly interpret public safety to keep as many areas of government open as possible.

Some thoughts:

Re the problem of schools and universities not knowing how much money they are going to receive in the budget, the problem may not be alleviated even with the passage of a budget. There is much talk of the General Assembly enacting a budget bill that includes language permitting the Governor to "trim" it. That language presumably would be similar to that contained in the 2007 budget and discussed in this ILB entry from April 22nd. The 2007 provision:

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.
I'm told that the Governor did exercise this authority in the current biennium, for example, by trimming back the appropriation amount one not-for-profit had based its own budget on.

Re Speaker Bauer's statement that Daniels "is sitting on $1.3 billion in reserves plus millions more in federal stimulus dollars that he thinks the governor could use to fund schools and essential services," it is true that the money had al;ready been "appropriated" by another "boiler plate" provision in the 2007 biennial budget law:

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.
The problem is that this language in the 2007 budget expires on June 30, 2009. So if there is no new budget, this language cannot be relied upon in the new biennium. The "any other law" referenced would kick in instead, assuming it is permanent law. Hopefully, this "other law" has been collected somewhere. But there are sure to be big gaps without the operative budget language.

In the end, however, if June 30th comes and goes without a budget, steps will need to be taken to keep essential services going, and the practical reality is, who is liekly to step forward to challenge their legality? And if there is a challenge, will the issue have become moot by the time a court is called upon to act?

Posted by Marcia Oddi on Monday, May 25, 2009
Posted to Indiana Law

Sunday, May 24, 2009

Ind. Law - More on "Lawmaker adding 'doomsday' to budget planning: Checks if state may tap reserve to stop shutdown"

Updating this ILB entry from May 18th, quoting a story from the Evansville C&P, two more papers chime in today.

Mike Smith of the AP reports in the South Bend Tribune:

The two words frame the biggest question of the special legislative session Gov. Mitch Daniels is expected to call next month: What if lawmakers don't pass a budget by June 30, when the current two-year spending plan expires?

The Daniels administration is taking a "don't even go there" approach. But Sen. Luke Kenley, R-Noblesville, has already begun checking out contingency plans, even though he says he's "100 percent hopeful" that it won't be necessary.

"I'm just doing this as a kind of contingency type of thinking," said Kenley, who asked for answers from the Legislative Services Agency, the General Assembly's nonpartisan research arm. "I just want to know what's at the end of the trail for me."

Crafting a budget that passes Daniels' muster at a time when revenues have plummeted — tax collections from December to April were $386 million below estimates — has already vexed lawmakers once. * * *

The Legislative Services Agency says that except for a few institutions such as the Indiana School for the Deaf, most of state government would grind to a halt unless lawmakers passed legislation to keep current spending going.

"There has to be an appropriation to pay state money," said Jack Ross, LSA's executive director. "For the most part, money cannot be spent unless it is appropriated by the General Assembly." * * *

Ryan Kitchell, director of the Office of Management and Budget, said no one in his shop is looking into the "what if" question.

He said his staff is crafting a budget proposal to present to a panel of lawmakers on June 1 and is "optimistic that something resembling it will pass."

Daniels is expected to propose a much leaner budget bill than the one voted on during the last day of the regular session, and that could create a tough sell among Democrats who control the House.

Mike Smith's story is also in the Elkhart Truth, in a longer version, including:
But Kenley's question has come up during previous special sessions to enact budgets. LSA came to the same conclusion during a special session in 1991, when U.S. Sen. Evan Bayh was governor.

Indiana Supreme Court Justice Frank Sullivan, Bayh's budget director, said then that Bayh -- even without legal authority -- would ensure that state prisons and state police continued to operate absent a new budget. Lawmakers ultimately passed a spending plan that Bayh signed in time to avoid such steps.

The concern was raised again in 1993, when a special session ended on the last day of the fiscal year with lawmakers approving a budget by overriding a veto from Bayh.

A stalemate that June over the budget and taxes lasted so long that Sen. Patricia Miller, R-Indianapolis, prepared legislation that would keep funding at the previous fiscal year's levels in case lawmakers didn't meet the deadline.

She hopes that's not needed next month but said it's an alternative lawmakers and Daniels could use if they can't reach an agreement on time. * * *

House Speaker Patrick Bauer, D-South Bend, worries that Daniels will insist on cutting $1 billion from the earlier plan. If that's the case, Bauer said he is not optimistic it could pass his chamber because it would mean cuts in education and job creation.

"The possibilities will be judged by what he puts on the table," Bauer said.

The outcome of the special session, expected to be called in mid-June, could hinge on a new revenue forecast due Wednesday and how well headstrong leaders in the House and governor's office work together.

Senate President Pro Tem David Long, R-Fort Wayne, considers June 30 a "day of reckoning" because of uncertainties about how state government would function after that if a spending plan isn't approved on time.

"It's that sort of pressure that hopefully brings everyone to their senses and we come up with an agreement on the budget," he said.

One of the applicable statutes in case of an appropriation bill failure is from the 1869 special session. According to the Centennial Hisory of the General Assembly, pp. 177-178, the General Assembly convened in twenty regular and ten special sessions between 1851 and 1889. "Lawmakers failed to pass an appropriation bill at least ten times during a regular session." Here are the first two sections of the still in effect 1869 law, IC 4-10-15:

Sec. 1. Whenever there shall be a failure at any regular biennial session of the General Assembly to pass an appropriation bill or bills, making appropriations for the objects and purposes hereinafter mentioned, it shall be lawful for the Governor, Secretary and Treasurer of State, until appropriations shall be made by the Legislature, to direct the Auditor of State to draw his warrants on the State Treasury for such sums as they may, from time to time, decide to be necessary for such purposes respectively, not however exceeding the amounts appropriated for the same objects respectively by the last preceding appropriations which shall have been made by the General Assembly; and to pay such warrants as may, from time to time, be drawn and presented, a sufficient sum of money is hereby appropriated.
(Formerly: Acts 1869(ss), c.5, s.1.)

Sec. 2. The warrants may be drawn for the necessary and current expenses of the following:
(1) All psychiatric hospitals (as defined in IC 12-7-2-184).
(2) The Indiana School for the Deaf, established by IC 20-22-2-1.
(3) The Indiana School for the Blind and Visually Impaired, established by IC 20-21-2-1.
(4) The Indiana Veterans' Home.
(5) The Plainfield Juvenile Correctional Facility.
(Formerly: Acts 1869(ss), c.5, s.2.) As amended by Acts 1976, P.L.44, SEC.15; P.L.2-1993, SEC.33; P.L.12-1996, SEC.2; P.L.69-1999, SEC.1; P.L.1-2005, SEC.57; P.L.218-2005, SEC.1.

It is interesting to see that Sec. 2 was last amended four years ago.

Although the Art. 10, sec. 3 of the Indiana Constitution provides:

Section 3. No money shall be drawn from the Treasury, but in pursuance of appropriations made by law.
there are plenty of continuing appropriations in the Indiana statutes. Often they are overridden in the biennial budget bill, but if there is no new budget, then they presumably are effective again. One would expect all of these laws are indexed somewhere.

A surprising discovery, to me at least. was IC 4-10-18-4(b), a part of the Counter-Cyclical Revenue and Economic Stabilization Fund. Subsection (a) is a continuing appropriation from the general fund to the counter-cyclical fund. But that operates only in good years. In bad years, subsection (b) comes into play:

(b) If the annual growth rate for the calendar year immediately preceding the current calendar year is less than a negative two percent (-2%), there is appropriated from the fund to the state general fund, for the state fiscal year beginning in the current calendar year, an amount equal to the product of: (1) the total state general fund revenues for the state fiscal year ending in the current calendar year; multiplied by (2) negative one (-1); and further multiplied by (3) the remainder of: (A) the annual growth rate for the calendar year preceding the current calendar year; minus (B) negative two percent (-2%).
Other sections of IC 4-10-18 may also come into play, as may the provisions of the 2007 budget bill cited in this earlier ILB entry.

The state board of finance (IC 4-9.1-1) has enormous authority to move money around, to negotiate loans, etc.

In the story quoted in the May 18th entry, Senator Kenley was looking to cobble together a way to keep state government operating for one month after the current budget expires -- i.e. the month of July 2009. It appears that it may be possible, with some creativity, to devise a plan to keep a severely hobbled framework of state government going, but not if no advance planning has been done.

Posted by Marcia Oddi on Sunday, May 24, 2009
Posted to Indiana Government | Indiana Law

Environment - "Feds warn state agency on pollution enforcement"

Mark Wilson reports in the Evansville Courier & Press:

U.S. Environmental Protection Agency officials say they will watch Indiana closely to make sure it enforces environmental regulations appropriately.

That comes in the wake of concerns about changes the Indiana Department of Environmental Management announced in December.

The EPA sent a letter to IDEM Commissioner Thomas Easterly on Thursday summarizing local officials' and environmentalists' concerns and saying it will "monitor, among other things," how the state implements its federally authorized, delegated or approved programs "in light of the changes you are implementing."

But there is little the federal government can do to dictate how state governments enforce environmental regulations and administer their agencies as long as they meet the EPA's expectations for enforcement, said Cheryl Newton, director of the air and radiation division for EPA's Region 5, which covers Indiana. * * *

After meeting with EPA officials in February, IDEM broadened how it described what it considers the most serious environmental violations.

Originally, the state's new policy included as the most serious violations those causing an "actual" threat to human health, safety or the environment. At the EPA's suggestion, the state dropped the word "actual."

"Our belief is that threats come in all kinds, and waiting until there is an 'actual' threat is too narrow an approach," Newton said.

The new policy was open for public comment March 2-April 16 and must be approved by four state environmental boards before it is final.

In addition to changing its policy for enforcing environmental regulations, IDEM did away with its Office of Enforcement and cut ties with local air quality agencies such as Evansville — all with little notice.

Instead, enforcement officers were reassigned to work in the agency's land, air and water divisions. Rather than contracting with Evansville to do inspections and oversee a network of air monitors, the state has taken on that job itself.

Although EPA officials were satisfied with IDEM's assurances, the letter noted that EPA had received a number of concerns about Indiana's intent and transparency, including lack of notice and better input on policy and program changes.

"It is our expectation that you will implement the necessary steps to overcome these perceptions and ensure a high level of communication and openness in the state's programs," wrote Bharat Mathur, the EPA's acting regional director.

Posted by Marcia Oddi on Sunday, May 24, 2009
Posted to Environment

Ind. Gov't. - Police charge too much for incident reports; ILB asks what about crash reports?

Matt Thacker has this story in the Floyd/Clark County News & Tribune:

Several local police departments charge more for incident reports than allowed under Indiana statute, according to state officials.

The Jeffersonville and Clarksville police departments charge $5 for a copy of an incident report. The New Albany Police Department charges $3 for a copy of an incident report, and the Clark County Sheriff’s Department charges 50 cents per page.

Amy Miller, assistant to the Indiana public access counselor, said that incident reports fall under the same state statute that limits how much agencies can charge for copies of any documents. That means they cannot charge more than 10 cents per page.

The Charlestown and Sellersburg police departments and the Floyd County Sheriff’s Department do not charge for incident reports.

“Prior to 1997, there wasn’t a delineation or statute that specifically limited copying fees,” said Stephen Key, legal counsel for the Hoosier State Press Association. “You saw copy fees going from 25 cents to a dollar a page.”

In 1997, a state bill passed that limited copy fees to the “actual cost” to produce the copy, or 10 cents per page, whichever is greater. A recent provision allows for a 25-cent-per-page charge for color copies.

“I’ve seen cases where they’ll apply the same fee for accident reports as they do for incident reports,” Key said. “In the cases where it’s been brought to their attention, they have repealed the ordinances.”

Under the Indiana Code, accident reports must cost at least $5. Application fees for handgun permits can range from $10 to $50 depending on the type of permit.

No statute mentions incident reports, also known as case reports, which may lead some police departments to erroneously treat them the same as accident reports.

“The public access counselor ruled several years ago that you can only charge 10 cents per page for an incident report,” said Charles Pride, supervisor for the Indiana State Board of Accounts.

He said the accounting board does look at fees when conducting an audit of a police department, but none of the local police officials The Evening News and The Tribune spoke to knew that there was a limit to how much they could charge for incident reports.

Clarksville Police Department Chief Dwight Ingle said the fee was raised from $3 to $5 before he became chief.

“I always felt bad for the person whose car was broken into and didn’t have insurance and we’re charging them for a report, but that’s the way it’s always been done,” Ingle said.

New Albany Police Department Maj. Sherri Knight said their rates for copy fees have not changed since at least 1992.

“We’ve tried to make it a nominal fee,” she said. “If the state mandated it was supposed to be different, we would certainly comply.”

Jeffersonville Police Department Chief Tim Deeringer and City Councilman Nathan Samuel — who serves as liaison to the police department — did not respond to requests for comment.

Jeffersonville Communications Director Larry Thomas provided The Evening News with a copy of a letter former Police Chief Mike Pavey wrote to the city council in 1996 requesting the cost of blotter and case reports increase from $1 to $5 in order to cover expenses.

The council then passed an ordinance which allowed the Jeffersonville Board of Public Works and Safety to set copy fees for all types of police reports. The statute the council used to justify the fee increase was repealed in 2003.

“If that’s what they say we’re supposed to do, we’ll do our best to comply with the rules,” Clark County Sheriff Danny Rodden said when told about the opinion from the state.

Floyd County Sheriff Darrell Mills said his department does not charge for incident reports.

“We try to do as much without charging as possible,” Mills said. “I don’t think you should be charged for something like that.”

Charlestown Police Department Detective Chuck Ledbetter said they charged a copy fee 10 years ago, but have not since they hired a full-time records clerk.

“We always had a policy that any victim wouldn’t have to pay for a report,” Ledbetter said.

Anyone who is charged too much for copy fees can file a formal complaint with the public access counselor at www.in.gov/pac.

People who have paid too much for copies in the past could request a refund, Miller said. However, the counselor only issues opinions and cannot fine any agency that does not comply.

“That would be a decision for a court to make,” Miller said.

What about crash reports? Marion County charges $12.00/report.

The crash reports issue has come up so often, the Public Access Counselor in March of 2007 wrote a special memo on them. Here is a copy from the ILB; the memo is also available on the PAC site, but only in Word format. Also of interest is this informal opinion from March 31, 2008, relating to:

accident reports (“crash reports”) created by the Department and sent electronically to the information maintenance and reporting system contracted by the Indiana State Police. * * *

The Department must, upon request, provide access for a requester to inspect crash reports created by the Department. How the Department provides access for inspection is an administrative matter for you to determine, so long as the procedure does not contravene the inspection requirements of the APRA. I have suggested that police departments might provide a public computer terminal to allow inspection. I understand this is not the best solution for all departments, though, since questions of the availability of an extra computer, access to all electronic records, and others, might arise. In the alternative, a department may print copies of the requested crash reports (or all crash reports, if requested), allow the requester to inspect and transcribe the reports in the office, and then collect the copies back from the requester. Certainly if the requester decided he wished to obtain a copy, the Department could then charge the statutory fee for a copy of a crash report. I cannot say how many departments utilize either suggestion or employ a different procedure, but I do understand the Indianapolis Metropolitan Police Department uses the latter method, providing public access copies of crash reports for inspection upon request.

While I understand the Department’s concerns about the personnel and financial resources required to provide access to the crash reports, those concerns do not negate the rights of the public to inspect public records at no charge, as provided in the APRA.

Here is a copy of the "Indianapolis Metropolitan Police Department Crash Information Exchange Form," as currently provided by IMPD police officers to drivers at an accident site. Your opinions are: (1) Buy a copy of the report online at BuyCrash.com -- the cost is $12.00, there is no indication where the money goes. Or you may buy a report by mail, either from Crash.com, or, as indicated on the IMPD form, from the IMPD Citizen's Services Branch, again for $`12.00.

To quote again from the story this morning from the News & Tribune:

Amy Miller, assistant to the Indiana public access counselor, said that incident reports fall under the same state statute that limits how much agencies can charge for copies of any documents. That means they cannot charge more than 10 cents per page.
According to that, these crash reports should cost less than $1.00, NOT $12.00 each.

But assuming that "crash reports" are the same as "accident reports," there is a separate statute governing the fee for accident reports. IC 9-29-11 begins:

Sec. 1. (a) Except as provided in subsection (c), the main department, office, agency, or other person under whose supervision a law enforcement officer carries on the law enforcement officer's duties may charge a fee that is fixed by ordinance of the fiscal body in an amount not less than five dollars ($5) for each report.

Posted by Marcia Oddi on Sunday, May 24, 2009
Posted to Indiana Government

Saturday, May 23, 2009

Courts - A look at potential Supreme Court nominees

This evening C-Span's America and the Courts took a look at potential Supreme Court nominees:

Thomas Goldstein, SCOTUSblog founder and head of Supreme Court Litigation at the Akin Gump Law Firm, discusses potential Supreme Court nominees, their strengths and weaknesses and some of the characteristics President Obama is looking for in a nominee.
Watch it here.

Posted by Marcia Oddi on Saturday, May 23, 2009
Posted to Courts in general

Law - "President’s Detention Plan Tests American Legal Tradition "

William Glaberson has this lengthy and outstanding article today in the NY Times. Some quotes:

President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.

There are, to be sure, already some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything.

Still, the concept of preventive detention is at the very boundary of American law, and legal experts say any new plan for the imprisonment of terrorism suspects without trial would seem inevitably bound for the Supreme Court.

Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures. * * *

Mr. Obama chose to call his proposal “prolonged detention,” which made it sound more reassuring than some of its more familiar names. In some countries, it is called “administrative detention,” a designation with a slightly totalitarian ring. Some of its proponents call it “indefinite detention,” which evokes the Bush administration’s position that Guantánamo detainees could be held until the end of the war on terror — perhaps for the rest of their lives — even if acquitted in war crimes trials.

Mr. Obama’s proposal was a sign of the sobering difficulties posed by the president’s plan to close the Guantánamo prison by January. The prolonged detention option is necessary, he said, because there may be some detainees who cannot be tried but who pose a security threat.

These, he said, are prisoners who in effect remain at war with the United States, even after some seven years at Guantánamo. He listed as examples detainees who received extensive explosives training from Al Qaeda, have sworn allegiance to Osama bin Laden or have otherwise made it clear that they want to kill Americans.

Posted by Marcia Oddi on Saturday, May 23, 2009
Posted to General Law Related

Ind. Decisions - "Women fired for race: Ruling says whites received far less punishment for far worse behavior"

The May 21st Supreme Court decision in the case of Filter Specialists, Inc. v. Dawn Brooks, et al (ILB summary here) is the subject of several stories today.

Laurie Wink of the Michigan City News-Dispatch reports:

INDIANAPOLIS - The Indiana Supreme Court upheld a ruling from the La Porte Circuit Court that Dawn Brooks and Charmaine Weathers "were discharged from employment because of race." Both women, who are black, worked at Filter Specialists Inc.

The court, however, disagreed on part of the Circuit Court's ruling, which diminished the amount of backpay the women received from an original number the Michigan City Human Rights Commission suggested. The Supreme Court ruled Brooks was entitled to backpay in the amount of $22,157.69, rather than $17,469.79, as had been determined by the Circuit Court. Weathers is entitled to receive $5,613, compared to $12,090.

According to a 20-page decision from the Supreme Court, Brooks and Weathers arrived at Filter Specialists at approximately 7 a.m. March 5, 2003. Weathers, who drove Brooks to work, dropped her off at one of the entrances while she parked and entered through a different door.

Diana Wirtz, the company's human resource manager, saw Weathers walk in the second entrance and waited for her by the first entrance, but she never showed up. It was at that time she checked time clock records and found Weathers and Brooks had clocked in on the same time clock at 7:01 a.m.

Wirtz and production manager Mike Forbes then discussed the issue with Bernie Faulkner, Filter Specialists' chief operating officer, and the three determined the women wouldn't be fired as long as they signed an agreement that stated one would not clock in for the other again.

The decision continues that both women denied clocking for the other and refused to sign. Forbes fired the women, though they had no history of fraud with the company.

Brooks and Weathers then filed a complaint with the Michigan City Human Rights Commission, who determined on Aug. 18, 2005, the company had instead fired them because of their race. Both were awarded backpay and fringe benefits. The La Porte Circuit Court later affirmed the commission's decision.

On Dec. 28, 2007, the Indiana Court of Appeals determined Brooks and Weathers failed to prove their discrimination case, and overturned the findings of the La Porte Circuit Court.

However, that ruling was again overturned Thursday.

"We are very pleased with (Thursday's) opinion handed down by the Indiana Supreme Court in the matter of Brooks and Weathers vs. FSI," said Shaw Friedman, the attorney representing the women in the case, along with attorney Jay Lauer, South Bend. "This case not only supports the decision-making authority of local Human Rights Commissions, but it also provides important guidance on ways an employee can demonstrate unlawful discrimination in the workplace in Indiana."

Stan Maddux's South Bend Tribune story today is headed "Women fired for race: Ruling says whites received far less punishment for far worse behavior." Some quotes:
Two black Michigan City women were fired because of the color of their skin.

That was the ruling of the Indiana Supreme Court on Thursday in overturning an appellate court ruling in the case of Dawn Brooks and Charmaine Weathers.

Brooks was awarded $22,157 in back pay; the back pay awarded to Weathers was $5,613. * * *

The decision by the Indiana Supreme Court upholds the initial ruling in the case made by the Michigan City Human Rights Commission, which also found race a motivating factor.

According to the complaint, the seconds of the time clock are not recorded, just the minutes. So, it was possible for both women to separately clock in less than 60 seconds apart without one clocking in for the other.

In its decision, the Supreme Court also cited the findings of the commission that white employees at the company engaged in "far more egregious" behavior and received "far less severe punishment."

Posted by Marcia Oddi on Saturday, May 23, 2009
Posted to Ind. Sup.Ct. Decisions

Friday, May 22, 2009

Ind. Decisions - Transfer list for week ending May 22, 2009

Here is the Clerk's transfer list for the week ending May 22, 2009. It is four pages long.

One case was granted transfer, State of Indiana v. Allan M. Schlechty (NFP), discussed in this ILB entry yesterday.

________

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 Friday, May 22, 2009
Posted to Indiana Transfer Lists

Ind. Courts - More on: "Duke wins four of six in in EPA power plant lawsuit"

Updating the ILB entry from May 20th, Robin Bravender of the NY Times reported yesterday:

An Indiana jury sided Tuesday with Duke Energy Corp. on four of six claims that proper pollution controls hadn't been installed at several of the company's Midwest power plants.

Both Duke and environmental groups have claimed victory in the case, which dates to 1999, when the Clinton administration launched an aggressive legal campaign against coal-fired utilities under the Clean Air Act's New Source Review (NSR) provisions.

NSR requires power plants to install modern emission controls for major upgrades that result in significant increases in air pollution. The law is aimed at ensuring that utilities do not artificially extend the lives of older, heavily polluting power plants by making significant upgrades to the facilities.

A jury in the U.S. District Court for the Southern District of Indiana found that Cinergy Corp. -- which merged with Duke in 2006 -- did not violate NSR provisions when it replaced tubing at plants in Ohio and Indiana. The jury found that Cinergy did violate the law when it replaced coal pulverizing equipment at two units at its Gallagher Station in Floyd County, Ind. * * *

Meanwhile, environmentalists also hailed the decision as a victory for curbing air pollution in the region.

The Gallagher Station has emitted 25,000 additional tons of pollution per year since upgrading the pulverizers, according to the New England-based Clean Air Task Force. Sulfur dioxide contributes to acid rain and can also cause serious health impacts.

"What's really important here is the plant we won on is an old clunker that's right on the border of Kentucky and the city of Louisville and upwind from Cincinnati, Ohio, and those people are going to breathe cleaner air," said Ann Weeks, senior counsel for the advocacy group.

An AP story today reports:
Duke Energy Corp. violated the Clean Air Act by making changes at a Southern Indiana power plant that significantly increased the air pollution it released into the Louisville, Ky., area, a federal jury has ruled in a decade-old lawsuit.

The Indianapolis jury found this week that Duke failed to obtain needed permits or install modern pollution-control equipment when it made changes at its coal-fired Gallagher plant near New Albany that raised the station's sulfur dioxide emissions.

Environmentalists had joined the U.S. Environmental Protection Agency in suing Cinergy Corp., now owned by Duke, in 1999 over changes to plants in Indiana and Ohio.

They praised the jury's verdict, saying it would help reduce pollution emissions at the plant, which dates to 1958 and is, they say, one of the nation's "dirtiest" in terms of air pollution produced per unit of electricity.

With the verdict entered Wednesday, U.S. District Judge Larry McKinney will next hear arguments from prosecutors and Duke in the remedy portion of the trial. Among other steps, he's expected to order Charlotte, N.C.-based Duke to install pollution-control equipment at the plant.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - Gary paper praises Gov. Daniels for HEA 1491 veto

Here is the editorial in the Gary Post-Tribune today:

The Lake Superior Court system as we know it today was created in the 1970s under the leadership of state Sen. Adam Benjamin Jr.

Benjamin had the wisdom to create a merit selection system and keep the judges out of politics. St. Joseph County opted at the same time to be part of the merit selection process as well. Lake and St. Joseph have been the only counties over the last 35 years to operate under the merit system.

While we aren't sure of the politics involved -- and you can be sure it's politics -- legislation was passed last month to move St. Joseph County judges back into the political arena.

Not so fast, said Gov. Mitch Daniels, who vetoed the bill.

"The current method of selecting judges for St. Joseph Superior Court has prevailed successfully for 35 years," the governor said in the veto message. "It is a model to be emulated, not discarded. It is not broken. It requires no repair. I believe it neither necessary nor wise to repoliticize the courts of St. Joseph County."

The governor easily could have signed the bill or let it become law without his signature. But he wisely chose to veto the measure.

Daniels is absolutely right that there is no need to thrust the court system back into the mire of politics.

There has been talk over the years to put the Lake County courts back into the political arena. That would be a travesty for a system that has worked well.

When the St. Joseph County legislation was making its way through the system this year, there was renewed talk about Lake County being the next in line for a change.

Daniels' veto of the St. Joseph County bill should put the issue to rest once and for all.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Indiana Courts

Ind. Courts - More on "Pastrick civil trial likely called off"

Updating this ILB entry from yesterday, Andy Grimm of the Gary Post-Tribune reports today:

HAMMOND -- It's official: There will be no trial in Attorney General Greg Zoeller's racketeering lawsuit against former East Chicago Mayor Robert Pastrick.

Following a conference call Thursday, U.S. District Court Judge James Moody entered a default judgment in the civil case against Pastrick and former aide James Fife III, meaning the pair will be found liable for some share of $24 million the state claims was misspent by Pastrick and his lieutenants during the 1999 city Democratic primary.

The default judgment will spare the 82-year-old Pastrick sitting through a trial set to begin next week and stretch almost to July, and his refusal to defend it is not an admission the mayor did anything wrong, his attorney Michael Bosch said Thursday.

"We defaulted. We quit. We forfeit. We're not defending," Bosch said.

In a statement e-mailed to the media Thursday, Zoeller seemed to think otherwise.

"This historic lawsuit was brought ... on behalf of the people of East Chicago to demand accountability and restore public confidence in local government," said Zoeller in the statement. "The fact that the two remaining defendants are willing to take a default judgment speaks volumes."

But Pastrick was adamant he would not make any admission of wrongdoing, a stance that stalled settlement talks in the case, Bosch said.

Attorneys for the state, and Pastrick and Fife, will appear in court Tuesday. On June 4, the state will present evidence, and Moody will set a damage amount.

Racketeering statutes allow plaintiffs to seek damages up to three times the amount of money lost, an amount the state so far maintained was $24 million spent on paving and other work done by city contractors in the run-up to the primary a decade ago.

The ruling will all but end a legal saga that began in August 2004, when then Attorney General Steve Carter filed the civil racketeering case against Pastrick and more than a dozen city officials and contractors.

The state's civil case mirrored a federal corruption indictment that resulted in jail time for numerous Pastrick administration officials and political allies, though Pastrick was never charged criminally.

"Pastrick to bow out of trial" is the headline to Dan Hinkel's story today in the NWI Times. Some quotes:
HAMMOND | Lake County Democratic icon Robert Pastrick plans to bow out of a court fight with the state of Indiana.

His attorney, Mike Bosch, filed papers in Hammond federal court Wednesday asking Senior Judge James Moody to enter a default judgment against Pastrick and his lone remaining codefendant, former aide James Fife III. The men will not appear Tuesday for the start of the long-anticipated civil trial that would have explored the sidewalks-for-votes scandal that marred the end of Pastrick's 33-year reign over East Chicago. * * *

Moody has not entered the judgment Bosch requested. But in a phone conference Thursday, Bosch and Fife told Moody the defendants do not plan to appear for trial Tuesday, according to federal court records. State lawyers will come to court Tuesday, and they plan to move for default judgments, court records state.

Moody will hear arguments about potential damages against Pastrick and Fife on June 4.

Indiana Attorney General Greg Zoeller sounded a triumphant note Thursday. Zoeller, who inherited the case from former Attorney General Steve Carter, pointed to the dozens of defendants who settled out of the case instead of facing trial.

"The majority of the defendants have already settled, and the fact that the two remaining defendants are willing to take a default judgment speaks volumes," Zoeller said in a written statement.

Moody has placed a gag order on lawyers and parties in the case. Pastrick did not return a call for comment, and Fife declined to comment when he was reached at home in Munster.

Bosch's move cancels the coda to Pastrick's half-century career atop Lake County's Democratic Party. Pastrick was a 44-year-old journeyman city official when he took the mayor's office in 1971. For three decades, Pastrick helmed the Lake County Democratic machine from the mayor's office. Former police officer George Pabey dislodged the King of Steeltown in a 2004 special election ordered after a fraudulent 2003 race.

In 2003, a federal grand jury indicted the Sidewalk Six, a group of city officials eventually convicted in a scheme to sway voters in the 1999 Democratic primary by paying $24 million in public funds to improve private properties.

Pastrick never was charged criminally, but Carter made an unprecedented legal move in 2004, suing Pastrick and his top aides for allegedly running East Chicago as a "corrupt enterprise" during the sidewalks-for-votes scheme. Until this week, state lawyers planned several weeks of courtroom arguments aimed at using the federal Racketeer Influenced and Corrupt Enterprises Act, also known as the RICO Act, to hold Pastrick and Fife civilly liable for the $24 million.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on: 7th Circuit judges comment on female attorneys' attire

More re the topic of this ILB entry yesterday, today from John Schwartz of the NY Times

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Jeffrey Mosley v. Julie Mosley , a 5-page opinion, Judge Kirsch writes:

Husband argues that the trial court abused its discretion when it issued its provisional order and assigned certain of the marital debt obligations to him. * * *

As previously stated, a trial court has broad discretion in issuing provisional orders. I.C. § 31-15-4-8; Wendorff, 366 N.E.2d at 704. Although we may review such interlocutory orders, we will only disturb the trial court’s order where there has been a clear abuse of discretion. * * * A provisional order is merely an interim order in place during the pendency of the dissolution proceedings, which terminates when the final dissolution decree is entered. I.C. § 31-15-4-14. Any disparity or inequity in a provisional order can -- and should -- be adjusted in the trial court’s final order.

In the present case, we conclude that the trial court was within its discretion when it issued its provisional order. It ordered Husband to be responsible for the vehicle of which he was given possession, the Best Buy account, his own rent, and half of the mortgage obligations on the marital residence. He was only obligated to pay the mortgage on the rental property if the tenant failed to pay the monthly rent. The trial court did not abuse its discretion.

In State of Indiana v. Robert Richardson, a 15-page opinion, Judge Mathias writes:
Robert Richardson (“Richardson”) filed a motion to suppress evidence seized after he was initially stopped for a seatbelt violation. The Marion Superior Court granted Richardson's motion. The State of Indiana appeals and argues that the trial court erred in granting Richardson's motion. We reverse. * * *

Traffic stops based upon a seatbelt violation are limited by the very statute that authorizes them. Pursuant the Seatbelt Enforcement Act, “a vehicle may be stopped to determine compliance with [the seat belt] chapter.” I.C. § 9-19-10-3.1. The next sentence of this section limits police authority in such situations: “However, a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle, may not be inspected, searched, or detained solely because of a violation of this chapter.” * * *

In the present case, we have an admittedly valid initial stop for a violation of the Seatbelt Enforcement Act. Officer Eastwood did not exceed the permitted statutory limits of a seatbelt stop by asking Richardson for his license or registration. * * *

Here, after the initial seatbelt stop, Officer Eastwood noticed a very large, unusual object in Richardson's pocket. We do not think it unreasonable for her to have merely asked Richardson what this object was. We therefore conclude that Officer Eastwood's inquiry regarding the large, unusual object in Richardson's pocket did not exceed the scope of police behavior permitted under the Seatbelt Enforcement Act, Article 1, Section 11, or the Fourth Amendment. * * *

We acknowledge that the information Officer Eastwood received from headquarters was, in fact, incorrect. At the hearing on the motion to suppress, the State admitted that Richardson did not, in fact, have a prior felony conviction. Thus, Officer Eastwood's arrest of Richardson was ultimately improper. The question then becomes, should the evidence found as a result of this arrest, which was later determined to be improper, be suppressed under the exclusionary rule?

A similar question was before the United States Supreme Court in the recent case of Herring v. United States, 129 S.Ct. 695 (2009). * * *

Here, as in Herring, a police officer was given information which led to the arrest of the defendant. In both cases, this information was later discovered to have been incorrect, and the arrest of the defendant was therefore improper. But, as in Herring, this is not enough, by itself, to justify suppression of evidence discovered as a result of the arrest. The mistake here, like in Herring, appears to have been a “police mistake” which was “the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements[.]” 129 S.Ct. at 704. Without any indication that the police were reckless in maintaining their records or knowingly made false entries in order to justify false arrests, exclusion is not justified. See id. We therefore reverse the trial court's conclusion that the evidence seized as a result of Richardson's arrest was subject to suppression.

Stephan M. Gallaher v. State of Indiana - "Gallagher argues that the State failed to rebut his statutory defense under Indiana Code section 35-48-4-16(b). He claims that the State failed to rebut his defense under subsection (b) that no children were present at the school at the time of the drug transaction and that he was only within 1,000 feet of the school for a brief period of time. Both parties seem to agree that the record established that no children were present at or within 1,000 feet of St. John's school at the time of the transaction as it transpired at approximately 3:00 a.m., and St. John's is a day school.

"The term “briefly” is not defined by Indiana Code section 35-48-4-16. Undefined words in a statute are usually given their plain, ordinary, and usual meaning. Weideman v. State, 890 N.E.2d 28, 32 (Ind. Ct. App. 2008) (citing Ind. Code § 1-1-4-1(c)). “Courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term.” Id. (citing Stratton v. State, 791 N.E.2d 220, 224 (Ind. Ct. App. 2003), trans. denied). The word “brief” is relevantly defined as “short in duration, extent, or length,” while “briefly” is relevantly defined as “short in time.” MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 143 (10th ed. 1994).

"Indiana Code § 35-48-4-1(b)(3)(B) elevates dealing in cocaine or narcotics to a class A felony if the transaction occurs within 1,000 feet of, among other things, school property. The purpose of this statute is to protect children. Similarly, the General Assembly sought fit to provide a defense that the defendant was only briefly within 1,000 feet of school property and no children were present when the transaction took place, thereby lowering the offense to a class B felony, because the reason for the harsher penalty – presence of children or a significant risk thereof – did not exist.

Here, it is uncontroverted that the transaction lasted, at most, for twenty minutes, took place at 3:00 a.m., and took place in a location where no children were present. Convicting Gallagher of a class A felony does not comport with the purpose of the statute. Here, as a matter of law, the transaction was brief and, consequently, the State failed to rebut Gallaher's defense. While under a different set of circumstances, a twenty-minute transaction could fall under the category of a class A felony because of the proximity of children or the potential for contact with youth, that is not the case here. Therefore, we reverse and remand with instructions to enter a conviction for dealing in a schedule II controlled substance as a class B felony and resentence Gallagher accordingly."

NFP civil opinions today (1):

Alissa McDivitt v. Matthew McDivitt (NFP)

NFP criminal opinions today (6):

Michelle Bolden v. State of Indiana (NFP)

Ronald Barger v. State of Indiana (NFP)

Cynthia K. Long v. State of Indiana (NFP)

Larry Horne v. State of Indiana (NFP)

Dajuan Nelson v. State of Indiana (NFP)

Juan Allen v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Ind. App.Ct. Decisions

Law - Concealed carry to be allowed in Indiana national, as well as state, parks [Updated]

The ILB has had a number of entries on recent moves to allow citizens to carry concealed weapons in state and national parks.

A story in the Gary Post Tribune today has this headline: "Congress OKs guns in parks: Licensed owners can possess weapons in places like National Lakeshore." Some quotes:

Visitors will soon be able to carry loaded guns in national parks and wildlife refugees, including the Indiana Dunes National Lakeshore.

Congress voted Wednesday to allow it in a stinging defeat for gun-control advocates. The measure was part of the popular credit card bill, which would impose new restrictions on credit card companies. President Barack Obama has vowed to sign it.

Tom Anderson, executive director of Save the Dunes, said his organization is concerned about the impact of the new law, which will allow licensed gun owners to bring firearms into national parks and wildlife refuges as long as they are allowed by state law.

"We do not believe our wildlife, neighbors or grandchildren should be exposed to this new threat and can't imagine a need to carry a loaded assault rifle on our beaches or at public educational programs at our national parks," he said. "Congress does not agree."

The House approved the measure 279-147 Wednesday, one day after the Senate acted. A total of 105 House Democrats and 174 Republicans supported the bill.

The vote was a bitter disappointment for gun-control proponents, who watched as a Democratic-controlled Congress handed a victory to gun-rights advocates that they did not achieve under Republican rule. Many blamed the National Rifle Association, which pushed hard for the gun law.

[Updated] But the new law won't go into effect until Feb. 2010, until then guns will continue to be barred from national parks, according to a Dept. of Interior decision reported in this story in USA Today. A quote:
The Interior Department's decision drew immediate criticism from Sen. Tom Coburn, R-Okla., the chief sponsor of the gun measure.

Spokesman John Hart said Coburn will offer the gun amendment to other bills in order to implement the decision as quickly as possible.

Hart said Coburn was confident the amendment would be approved again, noting that the measure received support from 27 Democrats in the Senate, including Senate Majority Leader Harry Reid, D-Nev.

The measure, adopted by wide margins in the House and Senate, allows licensed gun owners to bring firearms into national parks and wildlife refuges as long as they are allowed by state law.

Hart said Congress clearly intended for the law to take effect soon, adding that Coburn was disappointed the law apparently will not be in place this summer, when national parks are most crowded.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to General Law Related

Courts - More on: President Obama's Indiana nominees David Hamilton and Dawn Johnsen remain in limbo

Updating this ILB entry from yesterday, Maureen Groppe of the Gannett News Service reports:

WASHINGTON -- At the request of Republicans, the Senate Judiciary Committee postponed a vote yesterday on the confirmation of U.S. District Judge David Hamilton of Indiana to serve on the 7th U.S. Circuit Court of Appeals.

Sen. Jeff Sessions, R-Ala., said Republicans need more time to review Hamilton's court record, which Sessions said includes a "number of troubling rulings." He noted Hamilton's 2005 ruling that prayers spoken at the start of Indiana state House sessions must not mention Jesus Christ or advance any religion.

"There are some legitimate concerns," Sessions said. "This is a complex area of the law, I'll admit, but it's time for the federal court to get their heads straight on proper separation of church and state issues."

The 7th Circuit reversed Hamilton's decision last year, saying the group of Indiana taxpayers who had challenged the practice did not have sufficient standing because they had not proved they were directly affected by the House prayers.

Hamilton, a nephew of former U.S. Rep. Lee Hamilton, testified at his confirmation hearing April 1 that rules on the issue of standing changed between the time he determined the taxpayers could challenge the law and the time the appeals court said they could not.

"I certainly hope the decision is not interpreted at all as limiting anyone's free exercise of religion nor as favoring any one religion over the other," he said. * * *

The committee did not announce a new date for a vote.

Hamilton, Obama's first judicial nominee, has the support of Indiana Sens. Evan Bayh, a Democrat, and Richard Lugar, a Republican. He received the American Bar Association's top rating of "well qualified."

"I view President Obama's nomination of Judge Hamilton as something to be commended rather than obstructed or delayed," said Sen. Patrick Leahy, D-Vt., who heads the Judiciary Committee. "Judge Hamilton is a well-respected federal judge not known for partisanship or an ideological agenda."

The Volokh Conspiracy's Jonathan Adler speculates briefly over a possible recess appointment for Dawn Johnsen, However, the entry was quickly updated with this:
UPDATE: A reader with a better memory than I notes that, according to at least one OLC attorney serving in this Administration, any recess appointment over the Memorial Day break would be unconstitutional.
The update links to this Aug. 4, 2005 entry by Marty Lederman in Balkinization, claiming that:
the term "the Recess" [in the Recess Appointments Clause (Art. II, sec. 2, cl. 3)] refers solely to recesses between "Sessions" of the Senate, and not to intra-session adjournments
Finally, updating this ILB entry from Thursday, quoting from a Bloomington Times-Herald editorial headed "GOP state senators off track on Dawn Johnsen", the Fort Wayne Journal Gazette published this editorial yesterday:
Indiana lawmakers were unable to perform the one task they were required to accomplish this year – adopt a new state budget.

But 31 of the Indiana Senate’s 33 Republicans did find time to sign on to a letter to Sens. Richard Lugar and Evan Bayh urging them to vote against Indiana University law professor Dawn Johnsen, whom President Obama wants to head up the office of legal counsel in the Justice Department. The state senators were apparently jumping because Indiana Right to Life, which doesn’t want Johnsen in the assistant attorney general role, told them to. The state legislature has absolutely no jurisdiction whatsoever on the U.S. Senate’s vote on Obama nominees.

Only two GOP senators declined to sign the letter: Vaneta Becker of Evansville and Teresa Lubbers of Indianapolis. Lubbers suggested that Lugar – one of the most intelligent and well-respected members of Congress – probably didn’t need her advice on how to vote on a sub-Cabinet secretary nomination.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Courts in general

Courts - "Should judges have a representative in the Cabinet? Supreme Court Justice Stephen Breyer seems to think so"

That is the lede to this brief story today by Jordan Weissmann of The National Law Journal. Some quotes:

The talk of a Cabinet post was prompted by an audience member who asked the panel about judicial pay raises -- or the recent lack thereof. Breyer pointed out that even though federal law provides a cost-of-living increase to sitting judges, Congress has consistently voted to cancel the pay hike. The problem isn't the law, he said, but the fact that judges -- even on the high court -- lack political clout.

"When I was on the Judiciary Committee in the staff, I received a phone call one day from Warren Burger, the chief justice of the United States," Breyer recalled. "And he spoke to me and asked me about a bill that was relevant. I thought after, Why is he calling me? And the reason is that no one else would talk to him."

Breyer argued that despite concerns about separation of powers, there should be "a person with political responsibility" in the Cabinet to express the judiciary's viewpoint directly to the president. He compared the position to that of lord chancellor in England.

Hinting at who might play that role, he said, "That is my secret reason for mentioning the Department of Justice every chance I get. Don't tell anyone."

The suggestion got an enthusiastic reception from the audience, which included a large group of high profile lawyers and judges. During the question-and-answer session, Randall Shepard, chief justice of the Indiana Supreme Court, offered that if Breyer would "tease out" the idea more, he would "undertake to recruit my fellow chief justices to pursue it further."

"Good offer. Accepted," Breyer said.

The article links to a webcast of the entire panel.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Courts in general

Ind. Court - "County records likely ruined in Madison fire"

From the Louisville Courier Journal this morning, an AP story:

MADISON, Ind. -- A fire that heavily damaged the 154-year-old Jefferson County courthouse, destroying its dome-topped bell tower, likely ruined much of its cache of deeds, marriage certificates and other records dating to the early 19th century, officials said yesterday. * * *

County Attorney Wil Goering said fire investigators had not yet determined what caused the fire, which destroyed the 1855 structure's roof, collapsing it into the third floor that housed the county's courtrooms.

He said the county intends to rebuild the courthouse and that it is believed to be fully insured.

"There's no loss of life -- just a lot of things -- and the building will be restored so we'll move on and it will be better for the next 200 years," Goering said.

As of yesterday afternoon, he said, county officials had not yet been allowed into the courthouse because of the continuing investigation by the state fire marshal and others.

But he expects much of the building's store of documents -- including deeds, marriage and divorce records, adoption records and genealogy documents -- were damaged or destroyed by fire or by the water firefighters used to save the courthouse.

"There's several feet of water in the basement and that's where a lot of the records were stored," Goering said.

Officials from the state archivist's office will help in efforts to salvage the documents, many of which date to the early 1800s.

Among the items Goering fears were lost is a book signed by every attorney who ever practiced in Jefferson County. That book was kept in the circuit court on the gutted third floor.

"We'll have to see if we can locate that book. It's that sort of thing that will be irreplaceable," he said. "There are certainly many relics and documents we'll never recover." * * *

The Indiana Supreme Court issued an order yesterday closing the county courts and clerk's offices and suspending court deadlines and time limits until noon June 5. The high court also authorized officials to move the courts and clerk's offices to another location to conduct business.

For a copy of the Supreme Court's order, see this ILB entry from yesterday.

Posted by Marcia Oddi on Friday, May 22, 2009
Posted to Indiana Courts

Thursday, May 21, 2009

Ind. Courts - "Pastrick civil trial likely called off"

Updating this ILB entry from earlier today, Dan Hinkel of the NWI Times reports:

HAMMOND | A lawyer for former East Chicago Mayor Robert Pastrick has filed papers in Hammond federal court seeking to cancel a civil trial set to start Tuesday.

Attorney Mike Bosch filed an application for a default judgment against Pastrick and codefendant James Fife III. The filing indicates Pastrick and Fife are "no longer able to otherwise defend" the state of Indiana's lawsuit seeking to hold the men responsible for $24 million spent in the sidewalks-for-votes scandal that preceded the 1999 Democratic primary.

The filing would scratch a highly anticipated civil trial pending since former Indiana Attorney General Steve Carter filed the suit in 2004.

The default judgment would leave Senior Judge James Moody to decide what Pastrick and Fife would have to pay.

Attorney General Greg Zoeller has said he didn't expect to collect the full $24 million from the defendants. It remains unclear what assets Pastrick and Fife have.

Starting Tuesday, state lawyers planned to use the Racketeering Influenced and Corrupt Organizations Act, or RICO, to hold Pastrick and his codefendants financially responsible for the spending scandal that snared the Sidewalk Six, a group of city officials convicted in federal court in the concrete-for-votes scheme. Neither Pastrick nor Fife was charged criminally in the matter.

The NWI Times has also posted a copy of the 63-page complaint filed by AG Carter in 2004.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Courts

Ind. Courts - More on: Jefferson County Courthouse in Madison goes up in flames, roof collapses

Updating this ILB entry from early this morning, Ben Jackey of WLKY has this story. A quote:

Decades of history may have been lost as flames ripped through the Jefferson County courthouse. The third floor partially collapsed and the basement sustained significant water damage.

Local preservation experts have retrieved deeds and some other vital documents. Many of them will have to be frozen before they can be restored. However, there are some that were irreparably damaged in the fire.

The fire came as crews were finishing restoration work on the courthouse for the city's bicentennial celebration. County officials said exterior work was nearly complete.

"New wood had been put in place. Other wood had been reconstituted to restore it and strengthen and that project was basically completed," said county attorney Wil Goering. "The painters, restorers had done a beautiful job and they were pulling off yesterday."

"I guess I will just close with the headline from the local paper today: We will rebuild. We will," said Jefferson County Commissioner Julie Berry.

Various county offices are trying to finalize details on some office space. No time frame has been established on how long they could be displaced, but some of the offers have been for up to two years.

An information line for county services has been set up at 812-265-8944.

The Indiana Supreme Court has received a Petition from the Clerk and Courts of Jefferson County under Adm. Rule 17 for relief due to emergency caused by fire. The Supreme Court has granted relief via this Order filed at 4 PM today.

Unfortunately, both documents are scanned and so quotes cannot be readily lifted. The Order's six numbered paragraphs begin with #1, authorizing the tolling, from 12 am May 21, 2009 to 12 noon June 5, 2009, all laws, rules and procedures setting time limits for speedy trials in criminal and juvenile proceedings, etc.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Courts

Law - "Is This the Beginning of the End for Summer Associate Programs?"

So ask David Lat and Elie Mystal today the Above the Law.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to General Law Related

Ind. Courts - 7th Circuit judges comment on female attorneys' attire

Really. Read the entry and comments at the WSJ Law Blog. A quote:

Some esteemed federal judges in Illinois, it seems, have a bone to pick with some of the lawyers who appear before them * * *

Apparently, the judges launched in on their sartorial sniping earlier this week at a panel discussion at the Seventh Circuit Bar Association meeting. The discussion was reportedly touched off by Northern District of Illinois judge Joan Lefkow, who reportedly said some women attorneys should pay more attention to dressing appropriately for court. Specifically, Lefkow reported having an issue with one woman who had shown up for a court hearing in attire that looked as though she had stopped in “on her way home from the gym.” * * *

A fellow panel member, Central District of Illinois chief judge Michael McClusky picked up the theme, apparently dismayed that some women come into court wearing “skirts so short that there’s no way they can sit down and blouses so short there’s no way the judges wouldn’t look.”

ILB - This meeting was held in Indianapolis May 17-19, 2009.

[More] For more, see this article by Lynne Marek of The National Law Journal.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Courts

Ind. Decisions - One case granted transfer May 21st

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer has been granted today by the Supreme Court in the case of State of Indiana v. Allan M. Schlechty (NFP), a 2-1 opinion decided by the COA on Feb. 12th, where CJ Baker wrote:

Appellant-plaintiff State of Indiana (State) appeals the trial court’s grant of appellee-defendant Allan M. Schlechty’s motion to suppress. Specifically, the State argues that the trial court erred in granting Schlechty’s motion because the evidence established that the probation officer who conducted the search had reasonable suspicion to believe that Schlechty violated the conditions of his probation. Therefore, the State maintains that the search was justified as a “valid probation search” and drugs that were seized from Schlechty’s vehicle are admissible at trial. Appellant’s Br. p. 7. Finding no error, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Transfer Lists

Courts - President Obama's Indiana nominees David Hamilton and Dawn Johnsen remain in limbo

No vote has yet been scheduled for full Senate consideration of Bloomington law professor Dawn Johnsen to head the DOJ office of legal counsel. According to this March entry from the Blog of Legal Times, "The Senate Judiciary Committee voted along party lines [March 19th] to endorse Dawn Johnsen to lead the Justice Department's Office of Legal Counsel, sending her nomination to the full Senate for what is expected to be a contentious debate."

Indiana federal Judge David Hamilton has had two Senate Judiciary Committee hearings re his nomination to the 7th Circuit (see this April 30th ILB entry), but the word today is that the Judiciary Committee has now postponed any vote on sending the nomination to the Senate floor.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Courts in general

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

For publication opinions today (6):

In Painters District Council 91 v. Calvert Enterprises Electronics Svcs., Inc. , an 8-page opinion, the issue is "Whether the trial court erred in granting Calvert‟s motion to transfer venue." Judge Darden concludes:

The parties presented conflicting evidence regarding whether Painters' claim related to or arose out of its Marion County office. For example, Calvert and Painters, by Shofstall, executed the Agreement in Vanderburgh County. Painters, however, presented evidence that the decision to file its complaint for declaratory judgment was made in its Marion County office. Furthermore, Calvert asserted that it performed the majority of its IT services in Painters' Vanderburgh County office while Painters asserted that Calvert “performed work at multiple [Painters] offices under” under the Agreement, including the Marion County office. (App. 45). Given this conflicting evidence as well as the lack of evidence regarding the location of Painters' principal office, if any, we hereby reverse and remand to the trial court for a hearing on the evidence.
In Adrienne Weathersby v. JPMorgan Chase Bank, a 13-page opinion, Judge Brown writes:
Weathersby and MERS raise five issues, which we consolidate and restate as whether the trial court erred by finding that Chase’s mortgage was valid and that Weathersby’s deed and MERS’s mortgage were invalid. We reverse and remand.

This complex real estate dispute concerns a determination of ownership to a piece of property in Lake County for which multiple chains of title exist. Chase claims that Bessie Lewis is the valid owner of the property and that it holds a valid mortgage, while Weathersby claims that she is the valid owner of the property and MERS holds a valid mortgage. * * *

As a result, we conclude that genuine issues of material fact exist regarding whether the 5285 Adams Trust had actual knowledge in October 1998 of the prior transfer from the Blair Family Trust to FHCS and, thus, whether the 5285 Adams Trust was a bona fide purchaser of the Property. If the 5285 Adams Trust was not a bona fide purchaser of the Property, the chain of title leading to Lewis and Chase fails. We conclude that the trial court erred by granting summary judgment to Chase, and we remand for proceedings consistent with this opinion.

In Travelers Indemnity Co. of America v. Jerry Jarrells , a 22-page, 2-1 decision with three opinions, Judge Darden writes:
Travelers argues that the trial court erred in denying its motion for summary judgment because the statutory lien entitled it to reimbursement of worker's compensation payments made on behalf of Jarrells. We agree. * * *

[W]e conclude that Travelers is entitled to a statutory lien and/or reimbursement from the judgment for the worker‟s compensation it paid on Jarrells' behalf, “subject to [ ] paying its pro-rata share of the expenses of the reasonable and necessary costs and expenses of asserting the third party claim.” I.C. § 22-3-2-12. Accordingly, we reverse the trial court's grant of summary judgment in favor of Jarrells and remand with instructions to enter judgment for Travelers and to determine the value of Travelers' lien and its pro rata share for purposes of reimbursement.

VAIDIK, J., concurs in result with separate opinion: I agree with the result of the majority opinion, but I respectfully disagree in part with the path taken to get there. * * *

RILEY, J., dissents with separate opinion. [that concludes] By enforcing the lien, the majority is in effect imposing a double set-off on Jarrells. First, the jury by following the jury instruction, already properly considered the worker‟s compensation benefits in its jury verdict and reduced its award accordingly. Thus, by again reducing the jury award with the worker‟s compensation benefits by enforcing the lien, Jarrells is subject to a double set-off, prohibited under Indiana‟s collateral source statute and Pendleton
.
Furthermore, this dissent is in line with the purpose of both the worker‟s compensation statute and the collateral source statute. Both statutes focus on preventing a victim from recovering twice for his injuries. See I.C. § 34-44-1-1(2); Walkup, 702 N.E.2d at 713. They are intended to make the injured party whole while placing the cost on the wrongdoer. Here, the majority fails to make Jarrells whole.

I would affirm the trial court.

In Clint R. Beldon v. State of Indiana , a 14-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that although the trial court erred by admitting the videotaped deposition of Dr. Bache, the deposition testimony was merely cumulative of other properly admitted evidence, and the error was harmless beyond a reasonable doubt. We also conclude that Beldon’s failure to raise any argument at trial concerning the State’s failure to provide evidence of requests for blood and urine tests constituted waiver of that issue for purposes of his appeal. Finally, we conclude that the trial court erred by elevating his charge for operating a vehicle while intoxicated to a Class D felony based upon a prior conviction and enhancing his sentence based, in part, upon a habitual substance offender finding relying upon the same prior conviction. Therefore, we remand so that the trial court may remedy the sentencing defect in accordance with this opinion.
In Walker Whatley v. State of Indiana , a 9-page opinion, Sr. Judge Sullivan writes:
A jury convicted Walter Whatley (“Whatley”) of Possession of Cocaine as a Class A felony under Ind. Code 35-48-4-6(b)(3)(B)(iv). More precisely, Whatley was convicted of possession of cocaine in a quantity in excess of three grams within one- thousand feet of a “youth program center.”

Whatley does not contest the fact that he was in possession of cocaine in excess of three grams. He also does not contest that he possessed the cocaine within one thousand feet of the Robinson Community Church as charged. Rather, he asserts that the criminal statute and the statute defining a “youth program center” are unconstitutionally vague as applied to him. Insofar as here applied, I.C. 35-41-1-29 defines a youth program center as “a building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age.” * * *

The thrust of Whatley's position was stated by counsel in closing argument as follows:

Did he [possess cocaine] within a thousand feet of a youth program center? No. He did so within a thousand feet of a church. Churches aren't even covered in the statute. They didn't charge a church. They charged a youth program center. . . . There isn't a youth program center. It's a church”
(Tr. at 166). Conversely, the State argued, “It's not the building, it's not the primary purpose that determines whether it's a youth program center, it's the activities that go on there. (Tr. at 179). ” * * *

The cases collected are not uniform, from jurisdiction to jurisdiction, in their analysis or in their results. Nevertheless, we find persuasive guidance from several representative cases which hold that the principal character and use of a structure is not changed by some ancillary or accessory use. * * *

In light of the precedent herein set forth and after careful consideration and deliberation, we hold that the Robinson Community Church was and remains a church and is not converted into a youth program center by reason of its faith-based activities for young people. Bi-weekly Girl Scout troop meetings and mentoring of children by adult members of the congregation were accessory or incidental to the existence and identity as a church. The church was not a youth program center. It remained a church notwithstanding the incidental activities not solely religious in nature.

The judgment is reversed and the cause is remanded to the trial court for entry of a conviction as a Class C felony and to sentence the defendant accordingly.

In Richard D. Hacker v. State of Indiana , a 7-page opinion where "The sole issue is whether the post-conviction court properly concluded that Hacker received effective assistance of counsel before pleading guilty to Class A felony child molesting" Judge Barnes concludes:

In sum, given the testimony of trial counsel regarding Hacker's eagerness to plead guilty, his own statements to that effect at the sentencing hearing, the strength of the State's case against him, and the substantial benefit he received from the plea agreement, Hacker has failed to meet his burden that trial counsel's misadvice “materially affected” his decision to plead guilty, as Segura defined that phrase.

Conclusion The post-conviction court correctly concluded that Hacker did not receive ineffective assistance of trial counsel. We affirm the denial of Hacker's PCR petition.

NFP civil opinions today (2):

Scott S. Pitcher and Fortune Management, Inc., et al v. Royal Flush, Inc. (NFP)

FLW, LLC, Fulkerson Enterprises, et al v. John F. Wolpert (NFP)

NFP criminal opinions today (11):

Raphael Martin v. State of Indiana (NFP)

Corwin Stoehr v. State of Indiana (NFP)

Danny L. Hartley v. State of Indiana (NFP)

Daniel Groves v. State of Indiana (NFP)

Jerome A. Osborn v. State of Indiana (NFP)

Jonathan Towell v. State of Indiana (NFP)

Shaketa Jackson v. State of Indiana (NFP)

Mickel Jose McNeil v. State of Indiana (NFP)

Nancy Tibbets v. State of Indiana (NFP)

Richard Beck v. State of Indiana (NFP)

Terry Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Filter Specialists, Inc. v. Dawn Brooks, et al, a 20-page opinion, Justice Rucker writes:

Dawn Brooks and Charmaine Weathers initiated these proceedings by filing a complaint with the Michigan City Human Rights Commission alleging their employer, Filter Specialists, Inc., discharged them on the basis of race, in violation of the Indiana Civil Rights Act. Both Brooks and Weathers are African-American. Following a hearing at which evidence was presented, a five-member Commission unanimously concluded that race was the motivating factor behind the claimants' discharge, and awarded damages to Brooks and Weathers in the form of backpay and fringe benefits. Upon judicial review, the trial court affirmed the Commission's decision. We affirm in part and reverse in part the judgment of the trial court. * * *

[The opinion begins with a 6-page background discussion, introduced by "Before delving into the specific facts of this case, we begin by summarizing some basic principles in an area of law that at least one commentator observed 'has befuddled most of those who have attempted to master it.'”] * * *

We conclude there was substantial evidence to support the Commission's findings that Employees were discharged from employment because of race, and that Commission's findings in this regard were not an abuse of discretion, arbitrary, capricious, or in excess of statutory authority. We therefore affirm the judgment of the trial court on this issue.

As for the award of damages, there was also substantial evidence to support the Commission's findings that Brooks was entitled to an award of backpay in the amount of $22,157.69. By reducing the award to $17,469.79 the trial court erred. And although there was no evidence to support the Commission's findings that Weathers was entitled to an award of backpay in the amount of $12,090.00, the trial court also erred by reducing the award to $5,613.00. We therefore reverse the trial court on this issue and remand with instructions to enter awards of damages for Employees consistent with this opinion.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Ind. Sup.Ct. Decisions

Environment - More on "Federal authorities are investigating the Lake County Health Department, probing allegations that employees there were falsifying drinking water tests"

Updating this ILB entry from May 13th, Christine Kraly of the NWI Times reports today under the headline "Materials pulled from Lake County Health Dept." From the story:

CROWN POINT | The U.S. Attorney's office subpoenaed six years worth of records Wednesday from the Lake County Health Department as part of a federal investigation, a county official said.

Officials from the U.S. Environmental Protection Agency and the Indiana Department of Environmental Management carted boxes and crates of materials from county offices Wednesday afternoon but would not disclose what was in them.

Assistant county attorney Joe Irak said the county received a subpoena requesting every record from the county's lab since 2003, but acting U.S. Attorney David Capp said he could neither confirm nor deny any details of any ongoing investigation.

County officials confirmed last week the EPA is investigating the health department, probing allegations that employees there altered drinking-water tests.

No public health threat has been identified, but the EPA is examining the scope of the allegedly false reports, filed by two staff members whom county officials say have since been fired.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Environment

Ind. Courts - "Federal Judge asked to rule on fate, costs for Pastrick: Former East Chicago mayor, co-defendant Fife face racketeering charges"

Andy Grimm reports today in the Gary Post-Tribune:

HAMMOND -- Former East Chicago mayor Robert A. Pastrick likely will never have to defend himself in court against a civil racketeering lawsuit, and may end up paying little of the $24 million state Attorney General Greg Zoeller claims he owes the city.

Less than a week from the scheduled start of a civil trial, Pastrick and co-defendant James Fife III on Wednesday filed a motion for default judgment in the case and waiving their right to jury trial. The move means Pastrick and Fife will not mount a defense against the state's case, leaving U.S. Judge James Moody to decide the case, then to rule on the amount of damages the pair are liable to pay back to the city and state.

Former Attorney General Steve Carter filed the case more than four years ago, the first of its kind in Indiana.

The 52-page filing named Pastrick as the head of a conspiracy to use taxpayer millions on a sidewalk paving program that targeted his supporters for city-funded concrete work, tree-trimming and other services in the run-up to the 1999 city Democratic primary.

Moody has asked attorneys in the case not to speak publicly about the case, and a spokesman for Zoeller said only "It is premature to do more than to let the pleadings speak to themselves."

Pastrick's attorney, Michael Bosch, declined comment Wednesday.

The sidewalk program eventually led to the federal indictment of more than a dozen of Pastrick administration officials. Though Pastrick and Fife were never charged in the case, their names came up often in testimony during the trial of some of his top lieutenants.

The motion for default judgment spares the 80-year-old Pastrick a trial that would have lasted weeks, and would have repeated much of that testimony. Legally, the motion is not an admission of guilt, though Pastrick has essentially said he will not defend himself against the charges.

Moody would find Pastrick and Fife liable for some share of the $24 million Zoeller claims was misspent, and there could be testimony and evidence entered against the pair by the state in hearings to determine the amount of damages.

Once that figure is established, say attorneys who have followed the case, a likely next stop for Pastrick is bankruptcy court.

A civil court judgment is sometimes dischargeable in bankruptcy, meaning Pastrick or Fife would have to pay little or nothing of what they owe, said Dan Freeland, a Merrillville bankruptcy attorney. However, if the judgment is for damages resulting from abuse of fiduciary responsibility, such as when an accountant or executive embezzles money, the debt might stay on the books, Freeland said. "It will be up to the bankruptcy judge to decide," Freeland said.

As for how Pastrick might pay off whatever he ends up owing, the court would have limited options under bankruptcy law, Freeland said.

"His Social Security you can't touch. Anything he owns with his wife can't be attached by a creditor for himself alone, any kind of pre-tax retirement fund, you can't touch," Freeland said. "Basically, in bankruptcy, you can't squeeze blood from a stone. If he doesn't have any money, he doesn't have it."

The state has collected $1,281,775 from defendants who have settled with the attorney general and default judgments against other defendants have resulted in orders to repay a total of $18,056,097, according to Bryan Corbin, a spokesman for Zoeller.

Court records filed last week stated that negotiations on a settlement with Pastrick and Fife were stalled.

[More] Of interest are this June 13, 2008 ILB entry, this June 21, 2008 ILB entry, and this ILB entry from June 28, 2008.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Courts

Ind. Gov't. - More on: "Pension Funds Object to Chrysler Sale, Want Trustee"

Updating this ILB entry from yesterday, here is a story today in the Washington Post headed "New Group of Creditors Tries to Block Chrysler's Sale," reported by Tomoeh Murakami Tse. It begins:

NEW YORK, May 20 -- The government-orchestrated sale of Chrysler to Italian carmaker Fiat is facing a fresh legal challenge from some of the American carmaker's lenders, which are trying to take the fight to federal district court.

Pension funds representing Indiana teachers and police officers, and a state construction fund, filed Wednesday to have the Chrysler bankruptcy proceedings heard by the district court, which has authority over the bankruptcy court.

The funds contend that the automaker's sale violates their rights as senior secured lenders to Chrysler, and that under the proposed sale, they would recover less than junior lenders. They also think the government does not have the authority to use federal rescue money designated for banks to bail out Chrysler.

"We would be irresponsible as fiduciaries if we didn't fight," Richard Mourdock, Indiana's treasurer, said in an interview Wednesday. "You hope reason and precedent will prevail. . . . I certainly feel like David vs. Goliath, but I know I'm doing the right thing for the pensioners."

He said the three funds would lose about $5.6 million under the government-backed plan, in which Chrysler is offering secured creditors 29 cents on the dollar.

The filing in district court followed a decision by U.S. Bankruptcy Judge Arthur Gonzalez to deny the pension funds' request to stay the bankruptcy proceedings until the district court heard the case.

The Indiana funds are represented by White & Case, the same law firm that represented a group of hedge funds that sought unsuccessfully to block Chrysler's sale. The hedge funds, also secured lenders, gave up their legal battle earlier this month, saying that publicly opposing the federal government had become too difficult.

The Wall Street Journal has this story, which begins:
New opposition to Chrysler LLC's restructuring plan emerged as Indiana pension funds holding Chrysler senior debt filed objections to the plan, saying the U.S. government's involvement had "infected" the company's bankruptcy.

The opposition was led by the Indiana State Teachers Retirement Fund, the Indiana State Police Pension Trust and the Indiana Major Moves Construction Fund, which together own about $42.5 million of Chrysler's $6.9 billion in secured debt, according to the funds' lawyer.

The funds are unhappy the government put together a restructuring that will give secured creditors only 29 cents on the dollar. Chrysler unsecured creditors ranking below them -- namely the United Auto Workers union -- will recover more.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Government

Ind. Decisions - Court denies transfer and remands in posted order

In a posted Order Denying Transfer, issued May 15th, the Supreme Court has denied transfer in the case of Aleksander Stojceski, et al. v. Northern Indiana Public Svc. Co. (NFP) -- here is the ILB summary of the Nov. 5, 2008 COA opinion (3rd of the NFPs).

The Supreme Court denies the petition to transfer jurisdiction, and "understanding the Court of Appeals' mandate, which reverses and remands for further proceddings * * * not to require retrial of the issue of the total amounts of their damages but only comparative fault, pursuant to Rule 66(D)."

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - Jefferson County Courthouse in Madison goes up in flames, roof collapses

Here is the story from WLKY.com, along with video, and a slideshow, that shows the total destruction of the historic courthouse. From the story:

MADISON, Ind. -- A Southern Indiana community is picking up the pieces this morning after a fire destroyed an historic courthouse.

Arson investigators were called to the scene in Madison after flames torched the Jefferson County Courthouse, engulfing its gold-colored dome.

The fire broke out at about 6 p.m. Wednesday. The courthouse is located at 300 East Main St.

Fire crews from across southern Indiana and northern Kentucky were called to the scenic Ohio River town to battle the blaze.

A witness said that part of the roof collapsed. No injuries have been reported.

Jefferson County Prosecutor Chad Lewis said crews had been renovating the dome in preparation for Madison's bicentennial, June 6 through June 14.

When firefighters arrived they found the dome of the 154-year-old courthouse engulfed in flames. Smoke billowed hundreds of feet into the air and flames shot out the top of the building.

The Louisville Courier Journal this morning has coverage by Laura Ungar.

Here is WAVE TV coverage. along with video and photos. Maira Ansari reports:

MADSION, IN (WAVE) - The historic Jefferson County, Indiana was heavily damaged by a fire Tuesday evening that destroyed the building's signature copula.

Tuesday's edition of the Madison Courier showed an image of the courthouse cupola nearing the end of $150,000 in renovations that were being done. The work was to be completed in time for the city's bicentennial starting June 6. Wednesday night, all that was left of the cupola was a collapsed, burned shell that was still smoldering in the night air.

Madison firefighters were notified of the blaze around 6:15 p.m. Chief Steve Horton said he was attending a monthly fire department officers meeting at Madison City Hall, just two blocks away, when the call came in. Horton said that as he pulled onto Main Street, he saw heavy, black smoke and flames coming from the top of courthouse cupola.

About 200 firefighters from Madison and surrounding areas fought the fire, which took over four hours to bring under control. Horton says there were no civilian injuries and only minor injuries to firefighters. One firefighter was taken to the hospital for shortness of breath. Another suffered a cut to a finger.

Horton says while there was renovation work ongoing, it is too early to say what caused the fire. He has asked for assistance from the Indiana State Fire Marshal's Office to investigate the fire. That investigator is expected to arrive Thursday morning.

Horton told WAVE 3 said the courthouse in any community is the anchor point and the fire is shocking for the city, especially with the bicentennial coming in a few weeks. He said the loss of the courthouse, on which construction was begun in 1854 and finished in 1855, would take the core out of the community.

Madison city and Jefferson County leaders are scheduled to meet at 9 a.m. Thursday to determine where to hold court sessions and house offices that called the courthouse home. It is likely some of those functions will be moved into the Madison City Hall. County officials say they will rebuild the 154-year-old courthouse.

The Jefferson County Courthouse also housed the county jail and Jefferson County's 911 center. The Indiana Department of Homeland Security has moved the jail's inmates to the Jennings County Jail until other arrangement can be made.

Posted by Marcia Oddi on Thursday, May 21, 2009
Posted to Indiana Courts

Wednesday, May 20, 2009

Ind. Decisions - "Orban Suit Finally Reaches Settlement"

City of Warsaw and R. Paul Schmitt v. Richard and Jan Orban (NFP) was issued Dec. 31, 2007. In a lengthy and somewhat confusing story today, Daniel Riordan of the Warsaw Times-Union reports:

After nearly 10 years and millions of dollars in lawyer fees on both sides, a settlement has been reached in favor of Rick and Jan Orban, of Warsaw.

The Orbans were arrested and charged with multiple felonies after a dispute with their Carpet Express business partner David Melching.

The State of Indiana and the insurance carrier for the City of Warsaw paid the entire amount of the jury verdicts against Department of Revenue Agent Rick M. Albrecht and former Warsaw Police Department Captain R. Paul Schmitt. The insurer for Schmitt and the city contributed more than half of the total settlement.

Schmitt currently is the town marshal of Winona Lake.

Warsaw City Attorney Mike Valentine declined comment, citing the nature of the settlement, which was confidential.

Rick Orban said that he and his wife were relieved with the verdict but that the settlement couldn't bring back the 10 years they spent dealing with the case. * * *

"Judge Hamilton said that it was either 'the most incompetent investigation in the history of Indiana or the most malicious'", said Orban.

A state court jury found Revenue Agent Albrecht liable in 2006 for conspiring with then-detective Schmitt to wrongfully prosecute the Orbans for crimes they did not commit.

The jury determined that the Orbans' damages from their wrongful prosecution, including damage to their reputation and earning ability, totaled $1,575,000.

That jury verdict was reversed on appeal because the Court of Appeals held that Schmitt was entitled to a separate trial of the claims against him in Federal Court.

In April of this year, a Federal Court jury agreed that Schmitt conspired with Albrecht to wrongfully prosecute the Orbans. The federal jury independently reached a nearly identical damages verdict of $1,586,000.

In addition to paying the entire judgment, the state and Schmitt's insurer agreed to pay the Orbans' attorney fees and expenses in both the federal and state trials and appeal.

At the April trial in federal court, Albrecht testified that he agreed with the verdict that was entered against him in the 2006 state court trial.

Schmitt's trial counsel in federal court did not dispute that the Orbans were innocent of the criminal charges that were filed against them, but Schmitt denied that his actions were malicious.

The defense argued that Schmitt acted reasonably on the basis of incomplete or inaccurate information he had been given at the time the charges were first filed. The jury disagreed.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Indiana Decisions

Ind. Gov't. - "Pension Funds Object to Chrysler Sale, Want Trustee" [Updated]

From Bloomberg News this afternoon, a story by Christopher Scinta and Bob Van Voris that begins:

A group of Indiana pension funds that hold first-lien debt of Chrysler LLC objected to a plan to auction the company’s assets and said a U.S. District Court judge should rule on whether the sale is lawful.

The Indiana State Teachers Retirement Fund, Indiana State Police Pension Trust and Indiana Major Move Construction filed court papers late yesterday and today asking U.S. Bankruptcy Judge Arthur Gonzalez in New York to block the sale, claiming the plan is illegal and tramples their rights. A hearing to approve the sale to a group led by Fiat SpA, or a bidder that tops its $2 billion offer, is scheduled for May 27.

Gonzalez denied a motion by the funds to stay the sale process while they seek a review by the U.S. District Court of whether the sale is proper. The funds’ attorney Thomas Lauria said after today’s hearing that the group already had filed papers with the district court.

The funds also have asked for the appointment of a trustee to run Chrysler, saying the company has “ceded control over their business and their restructuring efforts to the United States Treasury Department,” which is using the bankruptcy to reward certain creditors that “the government deems politically important,” according to one of the filings.

“The Treasury Department has taken constructive possession of Chrysler and is requiring it to adopt a sale plan in bankruptcy that violates the most fundamental principles of creditor rights,” lawyers for the pension plans wrote. * * *

The case is In re Chrysler LLC, 09-50002, U.S. Bankruptcy Court, Southern District of New York (Manhattan)

[More] See this press release from Indiana State Treasurer Richard Mourdock.

[Updated at 5:05 PM] The Volokh Conspiracy reports Indiana's objection in the Chrysler matter, linking to the Treasurer's press release. A Volokh reader responds:

That press release is obviously bogus. It claims that pension funds are involved, but only speculators own Chrysler bonds.
"The Indiana State Teachers' Retirement Fund Issues Statement Regarding Losses Stemming from the Chrysler Bankruptcy and Recent News about the Teachers' Union Insurance Trust" is the heading to a just received press release. Some quotes:
INDIANAPOLIS, IN (May 20, 2009) -- Steve Russo, Executive Director of the Indiana State Teachers' Retirement Fund (TRF), is announcing that TRF will join forces with State Treasurer Richard Mourdock to seek recovery of monies that would be lost should the Chrysler bankruptcy be approved in its current form. TRF would incur a $4.6M loss should the current bankruptcy plan be approved.

As explained in a separate press release from the State Treasurer's office, the proposed bankruptcy settlement overturns nearly two hundred years of established law by redefining "secured creditors" to mean something less. In the past, to be "secured" meant that an investor was first in line to receive payment in the event of a bankruptcy; "non-secured" creditors would receive payments after secured creditors were paid. In the Chrysler bankruptcy, however, secured creditors are slated to receive $0.29 on the dollar while non-secured creditors receive higher values and end up with a 55% ownership of the newly restructured company.

Russo noted, "When TRF's investment manager took the decision to make this investment, it was under the well established presumption that in the event of bankruptcy, TRF--along with the other secured creditors--would be first in line. With the unprecedented proposal before the bankruptcy court, TRF is being asked to move to the back of the line behind non-secured creditors. Moving to the back of the line means receiving less money than what we would have received in a 'normal' bankruptcy. * * *

This week, there was significant media coverage surrounding the Indiana State Teachers' Association (ISTA) insurance trust. The Indiana State Teachers' Retirement Fund (TRF) wants to reassure its members that TRF and ISTA are completely separate and unrelated legal entities. TRF is a quasi-state agency that administers the Indiana State Teachers' Retirement Fund on behalf of the State of Indiana. TRF is governed by a Board of Trustees appointed by the Governor. TRF is not impacted by the financial status or dealings of the ISTA.

[More] Meanwhile, as reported by Deanna Martin of the AP:
INDIANAPOLIS | The National Education Association has taken over its troubled Indiana affiliate after problems with its insurance trust landed the teachers union in financial trouble and spurred investigations.

Indiana State Teachers Association President Nate Schnellenberger has sent an e-mail to members saying the NEA will have complete control of the state's largest teachers union.

The NEA appointed trustee Edward Sullivan to run ISTA. Schnellenberger says Sullivan will try to keep ISTA running smoothly while exploring financial options for the union and making corrections as needed.

Schnellenberger says ISTA's board requested the NEA trusteeship to ensure the union is financially viable.

ISTA is working to untangle its insurance trust from millions of dollars in liabilities while the state and the FBI investigate whether fund managers did something more than make risky investments.

[Still More] Reuters is reporting this evening: "Judge refuses motion to postpone Chrysler bankruptcy."

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Indiana Government

Ind. Law - "New Indiana law may violate students rights "

From an editorial today in The Exponent, Purdue's independent daily student newspaper:

With all the increasing protections for teachers in a new Indiana education law, there is even more potential for students’ rights to be infringed upon.

The law guarantees teachers qualified immunity from suits related to “reasonable” disciplinary action, expands the authority of teachers to remove problem students from their classrooms, and makes the process for a student’s return to a classroom more involved. It also provides means to notify teachers of their rights. The primary problems lie in those first three things listed. * * *

Students’ rights are already severely abridged, compared to every other citizen in the United States. Numerous court decisions restrict their free speech and freedom from illegal search; in other cases in which those rights have been upheld, students were originally suspended or expelled for exercising them. Officials nearly always excused their actions by saying that student expression disrupted the learning environment.

As associates of a university, most of us have been out of high school for a while. It’s easy to forget the feelings of powerlessness and desire for expression. But it’s important to remember that students are entitled to some rights under the law, and they are also entitled to air their grievances before a court if they feel they have been mistreated. The language of the law must be cleared up to protect their right to attend school and give students, and parents, some way to appeal disciplinary actions.

From the May 10th Fort Wayne Journal Gazette, a story by Niki Kelly begins:
Gov. Mitch Daniels signed into law Monday the only piece of his legislative agenda to survive the session – a bill shielding teachers from frivolous lawsuits in school discipline cases.

“Education cannot start until disorder stops,” he said in a news conference about the measure.

House Bill 1462 grants teachers “qualified immunity” from lawsuits related to disciplinary action and notifies teachers that the state attorney general will defend them if they are sued. It is effective July 1.

Supporters hope this will stem a culture of fear that teachers have in keeping order in the classroom.

There is already a state law clearing teachers of liability in reasonable discipline cases, but Attorney General Greg Zoeller said qualified immunity gives him a much stronger position to defend a teacher.

He noted that lawsuits can still be filed, but it is likely a judge will dismiss the case much more quickly.

Zoeller also said he hopes the new law will discourage school districts from settling cases before lawsuits are filed.

This happens because insurance companies choose small settlements over protracted legal battles.

Daniels said he realized after visiting hundreds of classrooms and meeting teachers from all over the state that today’s classroom environment doesn’t resemble the one he grew up in.

He said the level of disobedience was eye-opening and that many teachers told him they didn’t think they could deal with the problems without getting sued.

The bill also requires schools to expand criminal history background checks before hiring any staff member.

This measure “moves Indiana from a chair in the back of the room to the head of the class nationally when it comes to taking significant steps to protect our children,” Superintendent of Public Instruction Tony Bennett said.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Indiana Law

Ind. Courts - "Duke wins four of six in in EPA power plant lawsuit"

From the Dayton Business Journal this afternoon:

The U.S. District Court for the Southern District of Indiana on Tuesday ruled that three power plant upgrades at the Gibson plant in Princeton, Ind., and the Beckjord Station in New Richmond, Ohio; and one at the Gallagher Station in New Albany, Ind., would not require Duke to install additional pollution controls. The court ruled in favor of the EPA on two other projects at the Gallagher Station.

The EPA originally sued Cinergy Corp. in 1999, alleging that the company, then based in Cincinnati, completed projects that did not qualify as routine maintenance and it would have to upgrade pollution controls to handle increased emissions. Cinergy merged with Duke in 2006.

The most recent ILB entry about this case was January 13th.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Ind Fed D.Ct. Decisions

Courts - "Judge Wood Goes to Washington"

Jan Crawford Greenburg, a correspondent for ABC News' bureau in Washington DC., writes today about 7th Circuit Court of Appeals Judge Diane Wood.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

Details to follow

For publication opinions today (6):

State ex rel., Chauffeurs, Teamsters and Helpers, Local Union No. 414 v. Wendy Robinson

In the Matter of the Term. of the Parent-Child Rel. of G.H.; Elizabeth G. and Allen H. v. Dept. of Child Svcs.

UTLX Manufacturing v. Unemployment Ins. Appeals of the Ind. Workforce Development

Ryan Richardson v. State of Indiana

Matter of the Term. of the Parent-Child Rel. of J.S. v. Indiana Dept. of Child Svcs.

Herbert W. Salter v. State of Indiana

NFP civil opinions today (2):

Thomas A. Douglass v. Cristi L. Douglass (NFP)

Term. of Parent-Child Rel. of E.M., et al; L.M. v. IDCS (NFP)

NFP criminal opinions today (7):

Mark E. McClung v. State of Indiana (NFP)

Donald Anderson v. State of Indiana (NFP)

Robert J. Maxie v. State of Indiana (NFP)

Michael A. Eastwood v. State of Indiana (NFP)

Leon J. Stapleton, Jr. v. State of Indiana (NFP)

Rick D. Roberson v. State of Indiana (NFP)

Tommy Gilk v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Ind. App.Ct. Decisions

Law - "GOP state senators off track on Dawn Johnsen"

An editorial today from the Bloomington Herald-Times ($$):

So, 31 of Indiana’s 33 Republican state senators have asked U.S. Sens. Evan Bayh and Richard Lugar to oppose the nomination of Indiana University law professor Dawn Johnsen to be assistant attorney general for the Office of Legal Counsel in the Justice Department.

What a crock of political garbage.

One of two things is going on here.

Maybe each of these 31 senators has done extensive research and concluded that Johnsen, a Bloomington resident, is unfit for the job. That would at least be honest. But it also would be a waste of their time, seeing as how the state’s senators and their colleagues in the House of Representatives couldn’t finish their own work on time. They will be called back to Indianapolis for a special session to try to pass a budget, and they would serve Hoosiers much better by spending all their lawmaker time and energy determining just how that is going to get done.

But, of course, the other possibility is much more likely. That option is that the signing senators have no clue about the record and abilities of Johnsen, and just did the political bidding of Indiana Right to Life in opposing her for a top post in the Obama administration. That group gave Indiana Senate President Pro Tem David Long of Fort Wayne a letter trashing Johnson, and Long dutifully passed it around for the GOP’s lemmings to sign.

Only Republican Sens. Vaneta Becker of Evansville and Teresa Lubbers of Indianapolis showed integrity in this matter. Both refused to sign. Becker said she did not know enough about Johnsen to have an opinion, and Lubbers said she believed Lugar could make his own decision.

Both demonstrated independent thinking and reasoned thought, traits that are attractive in public officials. The other senators showed neither in their political posturing.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to General Law Related

Ind. Law - "Law offices of Vigo County prosecutor Terry Modesitt go up in flames"

From the story today in the Terre Haute Tribune Star:

Bill Strecker had just closed a real estate transaction in the offices of Allied Abstract and Title Co.

“Finished up about 4:30 p.m.,” he said Tuesday in the building’s west parking lot about three hours later, watching flames erupt from the roof as firefighters ringed the entire block with hoses.

The building at 321 Ohio St., which houses the title company along with Modesitt Law Offices, Conley Real Estate Appraisals and the Frey law firm, burned to the bricks in a blaze that began about 5 p.m. and continuing throughout the evening.

Here is the story from last evening, including video.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Indiana Law

Ind. Decisions - "Former coach wins $200,000 verdict against Gary schools"

Reporting on yesterday's Supreme Court decision in the case of Gary Community School Corporation v. Tom Powell (see ILB entry here), Patrick Guinane writes today in the NWI Times:

INDIANAPOLIS | Gary Community School Corp. owes about $200,000 to a former Lew Wallace High School football coach demoted after a stint on the disabled list, the Indiana Supreme Court ruled Tuesday.

Tom Powell, who had become head coach a season earlier, developed a blood clot in his leg in July 2001 and missed two months of team activities. When he returned to teaching that October, an assistant had replaced him as coach.

Powell won a $207,000 verdict in 2006, after a Lake County jury ruled the school district violated the federal Family Medical Leave Act, which typically allows injured workers up to 12 weeks a year of unpaid leave. But the Indiana Court of Appeals last year said Powell's coaching was a separate part-time job and ruled he had not accumulated enough work hours in the post to qualify for the unpaid leave.

The state Supreme Court reversed that ruling Tuesday in 4-1 decision and sent the case back to Lake County civil court with instructions to modify Powell's award. But an attorney said Gary Community School Corp. will ask the U.S. Supreme Court to hear the case.

"We think that we have a chance because at the end of the day this a federal question, because it's a federal law that's at play," said John Reed, an attorney for the school district. "We plan to press forward at this time and see where we can take it."

Here is Christin Nance Lazerus' story in the Gary Post Tribune.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "New rule on St. Joseph Superior Court bonds likely to be permanent"

Updating several earlier ILB entries, the most recent posted yesterday, this story today in the South Bend Tribune by Alicia Gallegos reports:

SOUTH BEND — A new rule that requires more scrutiny of second-time offenders before they can post bond will likely become permanent, judges say, and might mean that more cases are reviewed on Saturdays.

The rule, signed last week by St. Joseph Superior Court judges, means that people with a pending case who are arrested on a second misdemeanor count can no longer bond out.

Instead, the offenders must remain in jail until a hearing before a judge, which may result in more than the presumptive bond.

Chief Judge Michael P. Scopelitis said the issue had been discussed for some time — especially as it relates to repeat drunken drivers and domestic violence offenders — but came to a head amid the recent premeditated arrest announcements by anti-abortion activists at the University of Notre Dame.

Scopelitis also said that the fact that some protesters' cases were reviewed over the weekend was not out of the ordinary.

A person arrested without a warrant is entitled to a "prompt hearing," Scopelitis said, which is a term that could be debated, but could be between 24, 48 or 72 hours. In many jurisdictions, he added, people who are arrested late Friday commonly don't see a judge until Monday.

In St. Joseph County, judges have been on a rotation for years, Scopelitis said, with one judge working on Saturday to review probable cause cases. The number of cases evaluated depends on the number of people arrested.

With the new rule in place until Dec. 31 — and then "probably" becoming permanent, Scopelitis said — the hope is that late cases are evaluated by the weekend.

"We're hoping if a person is arrested on Friday and has a case pending, we can have the paperwork ready by Saturday morning," he said.

Indiana counties differ on presumptive bond schedules, and some Indiana courts have no presumptive bond, meaning a person always must go before a judge before bond is set.

Posted by Marcia Oddi on Wednesday, May 20, 2009
Posted to Indiana Courts

Tuesday, May 19, 2009

Courts - Kentucky State police must provide LJC with sex-offender database

This is an interesting story from Kentucky re access to public records that are maintained on governmental databases.

The ILB ran into this issue in Indiana several years when attempting to gain access to the electronic versions of the highly-formatted, MS Word-generated agreed orders entered into by the Department of Environmental Managment on a monthly basis. The other alternative was to download the documents, in html, locating them one by one using the search box on the IDEM website.

The Indiana Public Access Counselor at the time, Karen Davis, responded in her denial of the request:

Here, the record is available on the web in html format, which can be easily copied and pasted into and stored as a Word document. While it is probably easier and better for your purposes to receive a disk containing batched Word documents, you are not unable to accomplish this same effect using your own efforts, as I understand matters. * * *

In any case, it is my opinion that IDEM has provided copies of records in a digital format on its website, and therefore has made reasonable efforts to provide copies of records it maintains in its computers, as required under IC 5-14-3-3(d).

Also relevant is this ILB entry from March 9, 2009.

Here is the today's Louisville Courier Journal story, reported by Deborah Yetter:

A Franklin Circuit Court judge has ruled that the Kentucky State Police must provide The Courier-Journal with a copy of the agency's sex-offender registry database under the state's open records law.

Judge Phillip Shepherd's ruling Friday affirms an opinion last year from Attorney General Jack Conway's office that the material is public record -- which state police had challenged in an appeal to circuit court.

In an apparent rebuke, Shepherd ordered the state police to pay the newspaper's legal fees for the costs of the appeal, noting the agency had elected to appeal "against the advice of the chief legal officer of the commonwealth."

Failing to award costs to the winning side could have a "chilling effect" on public access to records, he said in an order and opinion.

"The threat of appeals by state agencies and the costs of protracted litigation is itself a disincentive for citizens and business to exercise their rights under the Open Records Act," Shepherd's opinion said.

Jon Fleischaker, a lawyer for The Courier-Journal, said yesterday he thought that the ruling was appropriate and that the newspaper is entitled to the database, which includes photos and other records of people convicted of sex offenses.

State police already post information about sex offenders on a state Web site, but the newspaper asked for the complete database, which would have allowed it to analyze details and more closely review information.

Jennifer Brislin, a spokeswoman for the state Justice and Public Safety Cabinet, which includes the state police, said the agency is "disappointed in the ruling."

She said the cabinet has not decided whether to appeal the ruling.

Fleischaker said he believes it's significant that Shepherd ordered state police to pay the newspaper's cost of the failed appeal.

The dispute began after the state police refused the newspaper's request for a copy of the database, arguing the request was "unduly burdensome." The agency also said the material was maintained exclusively in a "proprietary format" licensed by an outside vendor.

And it maintained that the agency already provides some of the information to the public through the state's sex-offender Web site, which people may search by offender name, city, county or ZIP code, according to Shepherd's opinion.

But Shepherd found none of those to be a valid reason for denying the newspaper's request. His opinion said state law is clear that agencies must provide electronic data to the public -- even if the material is already available in some form through a government Web site.

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Courts in general

Courts - "No More Mr. Nice Guy: The Supreme Court’s stealth hard-liner."

That is the title of Jeffrey Toobin's upcoming lengthy article on Chief Justice John Roberts, available here from the New Yorker. Here is a sample:

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Courts in general

Ind. Decisions - Supreme Court decides four today, including a website business dispute, and a reading of the expungement statute

In Gary Community School Corporation v. Tom Powell, a 14-page, 4-1 opinion, Justice Boehm writes:

We hold that an employee filling multiple positions with the same employer is eligible for leave under the federal Family and Medical Leave Act if that employee’s total service is sufficient to qualify, even if service in either position alone does not qualify. We hold that a ―front pay‖ award for future lost wages should be discounted to its present value. We otherwise affirm the judgment of the trial court. * * *

In June 2003, Powell brought this action alleging that GCSC violated the Family and Medical Leave Act (―FMLA‖) by failing to restore him as coach for the 2001 season and by retaliating against him for taking FMLA leave by rejecting him as head football coach in subsequent years. Powell and GCSC both moved for summary judgment on several issues, including whether Powell’s leave was covered by the FMLA. The trial court granted summary judgment for Powell on this issue and concluded that GCSC had violated the FMLA by failing to reinstate Powell as head football coach in 2001. Damages for failure to reinstate remained for trial along with Powell’s separate claim that GCSC had retaliated for taking FMLA leave. The trial resulted in an award of damages totaling $280,200.20 for the failure to reinstate and the retaliation claims. The trial court reduced the award to $188,919.29 and added prejudgment interest of $18,274 and attorneys fees of $125,000.

The Court of Appeals reversed, concluding that Powell was not eligible for FMLA leave. Gary Cmty. Sch. Corp. v. Powell, 881 N.E.2d 57, 58 (Ind. Ct. App. 2008), reh’g denied. We granted transfer. * * *

Conclusion. This case is remanded for the trial court to discount the front pay award to present value. The judgment of the trial court is otherwise affirmed.

Shepard, C.J., and Sullivan, Rucker, JJ., concur.
Dickson, J., dissents, believing that the Court of Appeals correctly decided the issues in the case.

In Dennis Conwell and Frank Splittorff, d/b/a Piece of America v. Gray Loon Outdoor Marketing Group, Inc., a 21-page, 5-0 decision with 2 opinions, Chief Justice Shepard writes:
As the Internet becomes a ubiquitous presence in American commerce, the nation‟s courts work to find satisfactory legal frameworks for resolving the disputes that inevitably arise. In this suit between a business enterprise and the marketing firm that created and hosted its website, we conclude that the Uniform Commercial Code does not apply and that the web design firm may collect for its work under principles of common law contract. As for a counter-claim alleging conversion of the intellectual product, we conclude that copyright law supports ownership by the designer. We affirm the trial court's judgment for the marketing firm. * * *

I. Does the U.C.C. Govern this Agreement? * * *

On the surface, these cases might suggest that customized software is a service while pre- made software is a good, but when courts try to pour new wine into old legal bottles, we sometimes miss the nuances. It would be a mistake, for instance, to treat software as a good simply because it was contained in a tangible medium that fits within that category. This would conflate the sale of a book with the sale of its intellectual content, suggesting that the purchaser of the book might be buying a right to general use of the expressions contained in the volume.

A website created under arrangements calling for the designer to fashion, program, and host its operation on the designer‟s server is neither tangible nor moveable in the conventional sense. To be sure, one can copy a website using tangible, movable objects such as hard drives, cables, and disks. These objects are in themselves just as certainly goods, but it does not necessarily follow that the information they contain classifies as goods as well. The arrangement between POA and Gray Loon contemplated a custom design for a single customer and an ongoing hosting relationship. As such, conventional “predominant thrust” doctrine suggests that the U.C.C. did not apply.

II. Was There an Enforceable Agreement to Modify the Site?

We proceed to examine Gray Loon‟s claim for payment under common law principles. The basic requirements for a contract are offer, acceptance, consideration, and a meeting of the minds of the contracting parties. * * *

The only evidence submitted regarding the reasonableness of the price consists of the invoice itself and POA‟s acceptance of the price through Dennis Conwell after receiving the invoice. There is no evidence that Gray Loon participated in any unconscionable effort to “strong-arm” POA into paying an unreasonable fee. In light of all that, the trial court was right to enforce the agreement even though Gray Loon had not provided a cost estimate.

III. Did Gray Loon Commit Conversion?

Piece of America appeals the trial court's denial of its counterclaim, which alleged that Gray Loon converted its property by failing to make a backup copy of the original version of the website, for which it made payment. * * *

What POA had was a nonexclusive license. Piece of America, the licensee, requested the creation of a website. Gray Loon, the creator/licensor, made and “delivered” the work to the licensee. As a nonexclusive licensee, POA never had ownership of the site under copyright law. POA purchased a non-exclusive license, which we might read as granting it rights to use the site as its own.

This conclusion makes short work of POA‟s conversion claim. Because the website actually did not belong to POA, it cannot bring a claim for conversion. Furthermore, even if POA had owned the website, Gray Loon did not commit conversion. It performed the work – including hosting the site – at POA‟s request. When POA did not pay, Gray Loon discontinued its hosting service and refused to hand over a copy of the site. Because this contingency was not addressed by the proposal, the common law of contract applies, not conversion. POA elected to pursue its counterclaim only on the latter grounds.

Piece of America‟s failure to pay the seventy-five dollar per month hosting fees alone could justify Gray Loon‟s taking down the site from the Internet. If it had paid all other fees, there might be a dispute as to whether Gray Loon had breached its license agreement by refusing to transfer the files to POA, but POA‟s failure to pay the June 2004 invoice coupled with the fact it did not request the files from Gray Loon persuades us that Gray Loon is not at fault either for withholding the files or taking the site offline.

Conclusion . The trial court having found for Gray Loon on its claim and on POA‟s counter-claim, we affirm.

Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion. I agree with the majority‟s analysis and conclusions on the record in this case. I write separately to explain why I agree that Piece of America (POA) is not entitled to relief for what amounts to a destruction of the website it had paid Gray Loon to construct. * * *

Whether POA had any damages from Gray Loon‟s breach is a matter of speculation on this record. POA elected to pursue only a conversion theory, presumably in hopes of treble damages and attorney fees in this dispute over an amount that surely is dwarfed by the cost of this litigation. Similarly, when Gray Loon sued for its fees, POA did not assert breach of its license as either an affirmative defense or set-off. I therefore concur in the result reached by the majority.

In Edwin Hayes, Jr. v. State of Indiana, a 6-page, 4-1 opinion, Justice Sullivan writes:
We affirm the convictions of Edwin Hayes, Jr., for promoting prostitution, child exploitation, and possession of marijuana and order that he be sentenced to 18 years, with years to be served in the Department of Correction. * * *

Shepard, C.J., and Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without separate opinion.

In State of Indiana Ex Rel., The Indiana State Police v. Chad Arnold, an 10-page, 4-1 opinion, Justice Sullivan writes:
Chad Arnold was arrested in 1993 for robbery but was never charged. In 2006, he filed a petition to expunge the arrest from his record. We affirm the trial court‟s order granting the expungement, declining to adopt the State‟s interpretation that the applicable expungement statute denies the trial court discretion in this regard. * * *

On appeal, the State argued that “based on the plain language of Indiana Code § 35-38-5- 1(f), the trial court may not grant an expungement when a person has an arrest history for matters other than minor traffic offenses.” (Appellant‟s Br. at 10.) Because Arnold has “an arrest history for matters other than minor traffic offenses,” the State maintains, the trial court did not have authority under the Expungement Statute to grant his request. In other words, the State‟s interpretation is that subsection (f) contains a list of three disqualifiers and that if any one of these is found, the trial court must deny a petition for expungement. * * *

We resolve this conflict between the Reynolds and Arnold decisions of the Court of Appeals in favor of the interpretation of subsection (f) adopted by the Court of Appeals in Arnold for the reasons set forth below. * * *

Based upon the above reasons, we conclude that if, after conducting a hearing, the trial court finds that an individual has a record of arrests other than minor traffic offenses, the court has discretion to either grant or deny that individual‟s petition for expungement. To the extent Reynolds, 774 N.E.2d 902, holds to the contrary, it is disapproved. * * *

Conclusion. We affirm the judgment of the trial court.

Boehm, J., and Rucker, J., concur.
Dickson, J., concurs in the result.
Shepard, C.J., dissents with separate opinion. I think the Court has worked too hard at parsing the expungement statute. The legislature‟s policy seems apparent enough. When someone petitions to expunge an arrest and the prosecutor stands silent, the trial court shall grant the expungement. When the State believes it would be harmful to the public‟s interest to expunge and thus objects, the court must decline to expunge where the record reflects multiple arrests for real crimes.

While the expungement statute might produce an occasional anomaly, as the Court speculates, there is nothing anomalous about the case before us. Besides his arrest for armed robbery, Arnold has been arrested for drunk driving four times, convicted twice, and violated probation. I conclude that the General Assembly has prohibited expungement under such circumstances.

For more on expungement in Indiana, see this ILB entry from Feb. 24, 2007.

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

In the Matter of the Paternity of: N.B.; J.W. v. K.B. (NFP)

Paternity of G.R.; M.D. v. T.R. (NFP)

Term. of Parent-Child Rel. of D.H.; D.J. & D.H. v. IDCS (NFP)

NFP criminal opinions today (4):

Sergio O. Nunez v. State of Indiana (NFP)

Sheila Westra v. State of Indiana (NFP)

Ryan A. Durbin v. State of Indiana (NFP)

Russell D. Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Ind. App.Ct. Decisions

Courts - "U.S., States Join Lawsuits On Wyeth Drug Sales"; Indiana has joined

Avery Johnson reports today in the Wall Street Journal:

The Justice Department and 16 states joined two whistleblower lawsuits alleging that Wyeth defrauded the government by offering discounts to hospitals on two of its drugs that it didn't offer to Medicaid.

The lawsuits, filed in federal District Court in Massachusetts, claim that Wyeth avoided paying hundreds of millions of dollars in rebates to state Medicaid programs for its Protonix Oral and Protonix IV acid-reflux drugs. Wyeth sold $394 million of the drugs in 2008, but they brought in close to $2 billion a year in revenue before generic competition threatened them. * * *

Wyeth's pricing of Protonix has been the subject of a grand-jury investigation by the U.S. Attorney's Office in Massachusetts. That office couldn't be reached for comment. The other states joining the suit include California, Delaware, Florida, Illinois, Indiana, Louisiana, Massachusetts, New York, Michigan, Nevada, New Hampshire, Tennessee, Texas, Virginia and Wisconsin.

The allegations against Wyeth are similar to those lodged against another heartburn drug, Merck & Co.'s Pepcid. Last year, Merck agreed to pay $250 million to settle a similar suit.

See also this AP story today headed "US: Drugmaker Wyeth cheated Medicaid."

This follows on an ILB entry posted May 15th quoting from an AP story:

NEW ORLEANS - Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws * * *

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states [including Indiana] joined Abbott in asking for a rehearing by all of the 5th Circuit's judges..

The ILB is looking into whether the Attorney General's office will make available a list of such lawsuits that Indiana's AG has joined.

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Courts in general

Ind. Law - "Mitchell could reauthorize golf carts on town streets under new law"

Krystal Shetler of the Bedford Times-Mail ($$) reports today:

MITCHELL — Golf carts may be a go in Mitchell soon, thanks to the Indiana General Assembly.

A new bill prohibits an individual from operating a golf cart on a highway. However, it allows cities and towns in the Hoosier state to adopt ordinances authorizing the use of golf carts on city streets.

The news elates people in Mitchell, who pushed for the use of golf carts on city streets. In June 2008, Mitchell Mayor Dan Terrell put a notice in the newspaper encouraging the use of golf carts. However, after Harold Sanders was ticketed by the Lawrence County Police Department for using his golf cart on city streets, the mayor was forced to rescind his earlier statement because he found out golf carts were, indeed, illegal.

Terrell, who owns a golf cart, said he is working with City Attorney Bill Mullis to draw up an ordinance allowing the use of golf carts in Mitchell.

He will present the ordinance to the city council at its June 1 meeting.

“We are looking at what other cities have for ordinances in reference to golf carts, and we are going to tweak it to fit Mitchell,” Terrell said.

“I hope the council will see the benefit this could bring to our older citizens, and pass it as they see fit.”

Harold and Rhondee Sanders put their golf cart up for sale once they found out they couldn’t be ridden on city streets. They’re glad now that it didn’t sell, and plan to attend the council meeting to urge elected officials to pass the ordinance.

The state bill specifically says that cities or towns may “require that a golf cart display a slow-moving vehicle sign or a red or amber flashing lamp.” It also says those operating golf carts must hold a valid driver’s license, retain financial responsibility and, if damaged, those parts (glass, plastic or metal) must be removed from the street.

“I think that golf carts are much safer than mo-peds, four-wheelers or motorized wheelchairs, yet we see those all over town,” Rhondee said. “We hope the council will pass this, as we look forward to riding ours this summer.”

The bill is HEA 1483.

Regular readers will recall that the ILB has had a long list of entries re authorizing the use of golf carts on city on town streets in Indiana.

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Indiana Law

Courts - More on "A Standard for Fair Trials"

Yesterday in a very brief entry the ILB linked to a column in the Washington Post proposing new rules to address problems of prosecutorial misconduct. Here is how the column, by Albert D. Brault and Timothy F. Maloney, began:

When dismissing the charges against former Alaska senator Ted Stevens recently, the trial judge noted that the prosecutorial failures to turn over exculpatory evidence in that case were symptomatic of a larger problem within the Justice Department. Indeed, such failures are happening across our criminal justice system.

Three weeks ago, the Supreme Court ordered further review of the murder conviction of a Vietnam veteran because a Tennessee prosecutor withheld witness statements that contradicted the state's version of the case.

Last month a federal judge cited "serious, serious problems here in the way evidence has been selectively produced" in an environmental crimes prosecution against the chemical and material company W.R. Grace, which was ultimately acquitted.

In February, the conviction in a notorious Texas murder case was overturned because the prosecution failed to disclose that a key eyewitness had failed to identify the defendant in a photo lineup and that later prosecutors showed the witness a photo of the defendant to help him identify the accused at trial.

Today this report in the Boston Globe by Jonathan Saltzman adds another example:
The chief judge of the US District Court in Massachusetts held off yesterday on sanctioning a federal prosecutor who has acknowledged that she withheld evidence that could have cleared a defendant in a gun case.

Judge Mark L. Wolf said Assistant US Attorney Suzanne Sullivan's actions were "inexcusable" though inadvertent and reflect a "fundamentally flawed understanding of her obligations, or a reckless disregard of them." Nonetheless, he said, Sullivan appears "genuinely contrite," and he will wait at least six months to decide whether to sanction her or the US attorney's office.

In addition, Wolf announced that two federal judges will lead an educational program in the fall for prosecutors, defense lawyers, and judges about the duty to turn over evidence collected by police to defendants. Wolf said repeated failures by the US attorney's office in Massachusetts to turn over so-called discovery evidence made him doubt that the Justice Department was adequately training prosecutors.

Wolf said that if he finds that a prosecutor intentionally withholds evidence from defendants, he will order criminal contempt proceedings that could lead to a conviction and imprisonment.

"The prosecution of a criminal case is not a game to be played casually or thoughtlessly," Wolf said in his 49-page court filing. "Many years of a man's life were at stake in the suppression hearing."

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Courts in general

Ind. Courts - Still more on: Emergency "bonding-out rule" signed Thursday by the judges of St. Joseph Superior Court

Updating earlier ILB entries from May 16th and May 17th, Alicia Gallegos of the South Bend Tribune has a long story today headed "Protesters at ND rally in court: Judge tells group trespassing charges don't involve right to protest." Some quotes:

SOUTH BEND — The 10 men and two women strolled slowly into the courtroom six at a time, many with white hair, some with hearing aids, one walking with a cane.

Aside from the handcuffs chaining their hands in front of them, the line looked more like a senior citizens tour group than an assembly of inmates about to appear before a judge.

But the 12 people were part of the large group of protesters arrested over the weekend on charges of trespassing on the University of Notre Dame campus. The group is accused of refusing to leave the property while rallying against the choice of commencement speaker President Barack Obama.

For many of the bifocal-wearing inmates, the current stay in the slammer wasn't their first.

The appearances before Chief Judge Michael P. Scopelitis on Monday were primarily so that bonds and dates for their initial court appearances could be set.

After determining flight risk and whether each protester had other offenses pending, Scopelitis set bonds ranging from $200 to $1,000. One South Bend woman was released on her own recognizance.

During the hearing, Scopelitis asked the inmates a set of questions about their residency and whether they had ties to the community. He also asked each whether they promised to appear at their scheduled date.

"I can't see how I'm going to make it," one woman from Minnesota told the judge. "I don't drive."

"I can't make a promise like that," Arnold Mattenson told the judge when asked.

"If you don't appear, there will be a warrant issued for your arrest," Scopelitis told him.

"Suits me," Mattenson said, before raising his voice in a rant. "There's no justice taking place here," he said. "We were there protesting the killing of unborn babies."

Scopelitis repeatedly reminded the group that the pending charges had not to do with their right to protest, but rather the allegation of trespassing.

One protester told the judge he did have permission to be on campus.

"I had permission from the owner of the property," he said. "Our Lord authorized us to do it."

Jack Smith, another protester, asked whether his $250 bond could be lowered to $200 because he only had $214 in his bank account. The request was granted.

Posted by Marcia Oddi on Tuesday, May 19, 2009
Posted to Indiana Courts

Monday, May 18, 2009

Ind. Decisions - Transfer list for week ending May 15, 2009

Here is the Clerk's transfer list for the week ending May 15, 2009. It is three pages long.

One case was granted transfer, Indiana Family and Social Services Administration v. Alice V. Meyer (Deceased), and Dianne M. Rynn, Trustee, a 14-page, 2-1 COA decision with three opinions - see ILB summary from Jan. 30th here. At issue is AOPA section IC 4-21.5-5-13.

________

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, May 18, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies cert in Indiana wine shipping case

Page 3 of the US Supreme Court's order list for today, May 18, 2009, includes Baude v. Heath (08-1004) among the cases for which certiorari has been denied.

The initial ILB entry on the Aug. 7, 2008 7th Circuit opinion in the case is here.

Here is a long list of other ILB entries referencing "Baude v. Heath".

Posted by Marcia Oddi on Monday, May 18, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - Who law professors would nominate; searching for the Achilles' heel on Souter's possible replacement

Two interesting stories today from The National Law Journal.

Marcia Coyle's report is headed: "An alternative short list for the high court: Law professors say whom they would nominate to the U.S. Supreme Court. Are any on the president's radar?"

Tony Mauro's story is headed "What old sin will haunt the next nominee?" A quote:

What will be the Achilles' heel, the french fry case, for the next nominee? That question might normally wait for the nominee to actually be named. But in the accelerated, intense glare of bloggers and bloviators, President Barack Obama's presumed short-listers have already been picked over and subjected to extended criticism. Videos of different candidates, some damaging and others sleep-inducing, have blossomed on YouTube.

Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) has already decried the "smoke and mirrors campaign" against possible nominees. By the time someone is named — perhaps as soon as this week — the ensuing battle may seem anti-climactic.

Posted by Marcia Oddi on Monday, May 18, 2009
Posted to Courts in general

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

For publication opinions today (3):

In Mercantile National Bank of Hammond, et al. v. Robert Underwood , a 12-page pinion, Chief Judge Baker writes:

These parties and long-running litigation, which began in 1995, have been here before. In this appeal, we must determine whether a claim was “commenced” within the statute of limitations when it was initially improvidently filed as part of a proceeding supplemental. The answer is yes. * * *

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

In Craig P. Coffman and Coffman Proactive CPA Svcs., LLC v. Olson & Co., P.C. , an 18-page opinion, Judge Kirsh writes:
Craig P. Coffman and Coffman Proactive CPA Services, LLC (collectively, “Appellants”), appeal the trial court's judgment in favor of Coffman's former employer, Olson & Company, P.C. (“Olson”), on Olson's claim for breach of a confidential non- disclosure and client proprietary agreement (“the Agreement”). Both sides appeal the trial court's damages award. The issues presented in this appeal are as follows: I. Whether Olson had a protectable interest that could be enforced by the noncompetition provision of the Agreement; and II. Whether the trial court erred by voiding the liquidated damages provision in the Agreement and calculating the damages award. We affirm. * * *
I. Enforceability of the Noncompetition Provision of the Agreement * * *

In the present case, the Agreement contains both a geographical limitation, Lawrence County and Monroe County, and a two-year time limitation on the restraint of trade. The noncompetition provision here is not against public policy. * * *

II. Liquidated Damages * * *

We find that the trial court correctly found the liquidated damages clause in the present case to be a penalty and, therefore, unenforceable. * * *

The trial court's award is within the scope of the evidence and is a reasonable determination of the damages award. Affirmed.

VAIDIK, J., concurs.
CRONE, J., dissents with separate opinion [disagreeing with the majority that Olson had established a legitimate interest that may be protected by a covenant not to compete] Moreover, absent actual damages, there is no basis for awarding liquidated damages, to which Olson claims it is entitled in its cross-appeal. Based on the foregoing, I would reverse and remand with instructions to enter judgment in favor of Appellants. Therefore, I respectfully dissent.

In Indiana Patient's Compensation Fund v. Gary Patrick , a 13-page opinion, Judge Riley writes:
The Fund presents three issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred when it granted Patrick an independent claim for damages for emotional distress in conjunction with his claim under the Adult Wrongful Death Statute. * * *

The Fund asserts that the trial court erred when it granted Patrick an independent claim for emotional distress damages in conjunction with his claim under the Adult Wrongful Death Statute. Because Patrick's claim derives from the death of his son, the Fund maintains that his claim is more properly characterized as derivative rather than independent and as such, clearly falls within the damage limitations of the Adult Wrongful Death Statute. However, the Fund continues, whereas the Adult Wrongful Death Statute provides for recovery of actual pecuniary losses, the Statute does not include a provision for the recovery of damages for emotional distress. Therefore, the Fund concludes that Patrick is not entitled to damages. Conceding that emotional distress damages are not permitted under the Adult Wrongful Death Statute, Patrick asserts that Indiana courts have repeatedly recognized that an independent action for emotional distress may proceed in conjunction with a claim for wrongful death.

We find that much of the confusion in this area of law stems from the fact that damages for emotional distress are treated differently depending upon the vehicle with which they are instituted: whether they are brought in combination with the Wrongful Death Statute or as part of the Medical Malpractice Act. * * *

On June 7, 2000, our supreme court signaled a new significant development in the law of negligent infliction of emotional distress when it decided Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000). In Groves, the court adopted the bystander rule * * * The holding recognizes that the emotional distress claim does not arise from the death of another, but rather from the direct involvement of the individual bringing the claim in the events which have caused the emotional distress. In other words, the claim is not based upon harm suffered by another; it is based upon harm which is personal to the individual bringing the claim. * * *

Based on these facts, it is clear that Patrick witnessed the death of a loved one, a death caused by the negligent conduct of health care providers. As a result, we find that the trial court properly concluded that Patrick, as a bystander pursuant to Groves, could bring an independent claim for the negligent infliction of his emotional distress upon Christopher's death.

NFP civil opinions today (2):

In the Matter of: H.J.; A.J. v. Marion Co. Dept. of Child Svcs. (NFP)

Robert Heflin v. Star Wealth Management (NFP) - "In light of this evidence, it is apparent that the trial court was provided with no alternative but to appoint Star Wealth because Heflin was unable to manage his finances and Yolanda also demonstrated an inability to control the family debt. Moreover, Star Wealth had already been appointed legal custodian by the VA to handle Heflin’s funds, and it was familiar with the family’s financial circumstances. For all these reasons, we conclude that the trial court did not abuse its discretion in appointing Star Wealth to serve as the guardian of Heflin’s estate. "

NFP criminal opinions today (8):

Dexter Young v. State of Indiana (NFP)

Daniel D. Dailey v. State of Indiana (NFP)

Christopher Smith v. State of Indiana (NFP)

Douglas Quinn v. State of Indiana (NFP)

Malcolm K. Ellis v. State of Indiana (NFP)

Michael Nelson v. State of Indiana (NFP)

Jessica Vasquez v. State of Indiana (NFP)

Alejandro Batana v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 18, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - "Lawmaker adding 'doomsday' to budget planning: Checks if state may tap reserve to stop shutdown"

Eric Bradner writes today in the Evansville Courier & Press:

INDIANAPOLIS — A top Senate Republican budget negotiator says he is investigating a doomsday scenario in case lawmakers and Gov. Mitch Daniels don't agree on a new budget in time.

If the General Assembly doesn't pass — and Daniels doesn't sign — a new budget before the current one expires at the end of June, most of state government would shut down.

Senate Appropriations Chairman Luke Kenley of Noblesville wants to see if Indiana would be able to tap into its $1.3 billion in reserves to keep the state government afloat for an extra month or so.

Kenley told a group of Franklin College journalism students on Friday that he has asked legal experts to determine whether the state can use its reserves in case no budget is passed by June 30.

Doing so, he said, could keep the state government operating for another "30 to 35 days."

"We are in uncharted territory," Kenley said. "I want to know what the options are."

Daniels wants a budget much leaner than the one that passed the Senate but failed in the House in the waning minutes of the General Assembly's session.

However, Democrats and some Republicans have balked at the governor's demand to trim at least $1 billion from that budget.

This research has been done before, in earlier years where budget special sessions loomed.

In addition, here is a provision from the budget bill currently in effect, HEA 1001 from 2007, authorizing an action that apparently would have to be taken before the end of next month -- June 30, 2009:

SECTION 36. [EFFECTIVE JULY 1, 2007] If the budget director determines at any time during the biennium that the executive branch of state government cannot meet its statutory obligations due to insufficient funds in the general fund, then notwithstanding IC 4-10-18, the budget agency, with the approval of the governor and after review by the budget committee, may transfer from the counter-cyclical revenue and economic stabilization fund to the general fund an amount necessary to maintain a positive balance in the general fund.

Posted by Marcia Oddi on Monday, May 18, 2009
Posted to Indiana Law

Courts - Yet more on: NY high court rules police need warrants for GPS trackers

Updating three ILB entries, all on the NY high court decision last week, Yvonne Zipp, Correspondent of The Christian Science Monitor, reports today in a lengthy story headlined "Courts divided on police use of GPS tracking: Two recent, divergent court rulings on warrantless tracking suggest new technologies are straining old privacy standards." Some quotes:

Kalamazoo, Mich. - If a police officer puts a GPS tracking device on your car, should he or she have to get a warrant first?

It's a simple question, but one, so far, without a clear legal answer. In an example of how unsettled the issue is, in just the past week, appeals courts in two different states delivered completely opposite rulings.

At the heart of the matter is whether tracking someone with a global-positioning system device constitutes a search, which is covered by the Fourth Amendment of the US Constitution. A Wisconsin court of appeals ruled last week that no, it doesn't. On Tuesday, the New York Court of Appeals ruled that yes, it does.

"It brings us back to the fundamental question as to whether GPS tracking is synonymous with visual surveillance," says Hillary Farber, a professor of law and criminal justice at Northeastern University's College of Criminal Justice in Boston. "This is an evolving area of law.... It's a hot issue."

The difference of legal opinion highlights the shifting expectation of privacy in a world where cameras are everywhere and travelers know they may be viewed naked at the security screening in the airport, as well as the difficulty courts have in weighing in on rapid advances in technology. * * *

The federal courts have been divided on this issue, although in 2007, the Seventh Circuit Court of Appeals issued a ruling similar to Wisconsin's. On the state front, Washington and Oregon courts have mandated that police obtain warrants first, citing their state constitutions – as did New York this week. (This effectively settles the issue for residents of these states.)

A similar case is pending before the Massachusetts state supreme court.

In both of this month's rulings, the courts cited a 1983 Supreme Court case in which federal agents placed a tracking beeper (a radio transmitter) in a barrel of chloroform that was transported by a suspect. The high court ruled that the defendant had no expectation of privacy while driving on public roads.

In the Wisconsin case, police did obtain a warrant before putting a tracking device on a stalking suspect's car. But the officers could have proceeded without one, because GPS tracking does not constitute a search, Judge Paul Lundsten wrote.

However, the Wisconsin Court of Appeals also said it was "more than a little troubled" by its own conclusion and asked the state legislature to regulate GPS use to protect individuals and prevent abuse by law enforcement.

The New York Court of Appeals, on the other hand, found that a beeper and a GPS device were not created equal, technologically speaking. "The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries," wrote Chief Judge Jonathan Lippman for the majority. "Disclosed in the data ... will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club ... the mosque, synagogue or church, the gay bar and on and on.

"What the technology yields and records with breathtaking quality and quantity," the judge continued, "is a highly detailed profile, not simply of where we go, but by easy inference, of our associations – political, religious, amicable and amorous, to name only a few – and of the pattern of our professional and avocational pursuits."

In that case, police did not obtain a warrant before affixing a GPS device to a suspect's vehicle and tracking his movements for 65 days. He was subsequently tried for two burglaries and convicted of one.

Here is a good story from Jaikumar Vijayan of ComputerWorld, dated May 15th. A quote:
On the surface, that decision seemed to be at odds with one made by the Wisconsin Court of Appeals last week in the case of a man who was convicted on stalking charges. The court ruled that the evidence gathered against him using a secretly installed GPS tracking device on his car did not constitute a violation of his Fourth Amendment rights against unreasonable search. In coming to that decision the court avoided directly addressing the issue of whether a warrant is explicitly needed to conduct such GPS tracking in the first place.

But the Wisconsin court's opinion reflected many of the same concerns against the unsupervised used of GPS devices that were expressed by the New York court. Judge Paul Lundsten said the court was "more than a little troubled" by the lack of federal and state laws limiting the government's use of GPS tracking devices. He urged the state's legislature to explore laws imposing limitations on the use of GPS by both government and private actors.

Pam Dixon, executive director of the World Privacy Forum in San Diego, said the decisions show how courts "are looking for limits on the use of GPS" by law enforcement in the absence of any clear federal law on the issue. "Both judges were troubled by the implication of the uses of these devices. Both judges agreed that federal law is needed on whether use of GPS devices constitutes search in the law enforcement context," Dixon said.

The Wisconsin Court of Appeals opinion is State v. Sveum, May 7, 2009, available here.

So what is the 7th Circuit decision? A look back in the ILB turned up this entry from Feb. 2, 2007. The case, out of Wisconsin, is U.S. v. Garcia, the opinion is written by Judge Posner.

Posted by Marcia Oddi on Monday, May 18, 2009
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/18/09):

  • None currently scheduled.

Next week's oral arguments before the Supreme Court (week of 5/25/09):

Next Thursday, May 28th

  • 9:00 AM - Daniel Ray Wilkes v. State of Indiana - The State charged Daniel Ray Wilkes with three murders committed in Vanderburgh County, and requested the death sentence. Upon a change of venue, the case was tried in Clark County. The jury convicted Wilkes of three murders, but did not reach a unanimous decision on the sentence. The Clark Circuit Court sentenced Wilkes to death. In this direct appeal, Wilkes argues various errors occurred during trial and at sentencing.

  • 10:05 AM - Kevin D. Burke v. Duke Bennett - The 2007 general election resulted in Bennett receiving more votes than Burke for the office of mayor of Terre Haute. Burke then filed an election contest, claiming that Bennett was ineligible to run for or assume that office, but the Vigo Circuit Court rejected Burke’s contest and declared Bennett eligible to assume the office. Later, the Court of Appeals reversed and held that Bennett is disqualified, the office of mayor is vacant, and a special election is required. Burke v. Bennett, 896 N.E.2d 505 (Ind. Ct. App. 2008), vacated. The Supreme Court has granted petitions to transfer and has assumed jurisdiction over the appeal.

    This is the Terre Haute mayoral race / Little Hatch Act dispute. Transfer was granted to both Appellant and Appellee. See this ILB entry for background. See the Nov. 13, 2008 ILB summary of the COA opinion here. See also this long list of earlier ILB entries on the Terre Haute mayoral dispute.

  • 10:55 AM - In re Termination of Parent-Child Relationship of M.B. and S.B. - The Howard Circuit Court denied a mother's Trial Rule 60(B) motion to set aside an order for the voluntary termination of parental rights. The Court of Appeals affirmed, holding that an addendum to the mother's consent providing for post-adoption visitation was unenforceable and that severing the addendum did not frustrate the basic purpose of the remainder of the agreement. In re M.B., 896 N.E.2d 1 (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 Oct. 31, 2008 COA opinion here. From the COA opinion: "A partial termination of parental rights does not exist under Indiana law. Either the parent-child relationship survives, or it does not."

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 5/18/09):

  • None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 5/25/09):

  • 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, May 18, 2009
Posted to Upcoming Oral Arguments

Sunday, May 17, 2009

Courts - "NAACP Asks U.S. Supreme Court to Revisit Photo-ID at Polls"

This today from Richard Winger's Ballot Access News:

The NAACP of Georgia is asking the U.S. Supreme Court to hear its case against Georgia’s law, requiring voters at the polls to show government photo-ID in order to vote. The case in the lower courts was called Common Cause/Georgia v Billups, but now it is called NAACP v Billups, no. 08-1231.

The U.S. Supreme Court upheld Indiana’s photo-ID law on April 28, 2008, but the Indiana case had been filed with no voter-plaintiffs who lacked the needed ID. The Court said the law was constitutional on its face but left the door open to an as-applied challenge after the law had been used. By contrast, the Georgia NAACP case has two voter-plaintiffs who lack any government photo-ID. The Court hasn’t set a conference date yet, but is expected to set one in a few days.

Posted by Marcia Oddi on Sunday, May 17, 2009
Posted to Courts in general

Ind. Law - Fort Wayne Journal Gazette opines on Daniels' vetos

"Perplexing voting veto" is the headline to an editorial today in the Fort Wayne Journal Gazette. Some quotes:

Last week, Gov. Mitch Daniels signed into law an election bill that makes voter registration easier. At the same time, and with inadequate explanation, he vetoed another bill that would have made it more convenient for voters to cast their election ballots. Hoosier voters and lawmakers deserve a clearer justification from Daniels about his objections to the bill.

Senate Bill 209
passed in the Senate 48-0 and in the House 55-43. It allows the three-member county election boards to create multiple early-voting sites by a 2-1 majority board vote rather than the previous requirement for a unanimous 3-0 vote. Every county must have one early-voting center, but the decision to open additional satellite early-voting centers must be unanimous. That provision was designed to eliminate partisan skirmishes similar to the long legal battle that occurred in Lake County last fall. Democratic members of the Lake County election board opened more early-voting centers to meet demand, but Republican members opposed the move and asked the courts to close the sites.

Early voting was popular in the last general election. One in six Hoosier voters cast early ballots before Election Day. In Allen County, slightly more than 20 percent of voters voted outside their assigned precinct through early voting or absentee ballots, with almost 13 percent of voters taking advantage of the early-voting center at the City-County Building.

Daniels’ veto makes it clear he objects to the early-voting bill. A statement released by Daniels said, “While this bill contains provisions that would make the act of voting more convenient, it does not contain sufficient safeguards against fraud and abuse and removes long-standing bipartisan checks and balances in the conduct of elections.”

But the statement doesn’t go far enough in explaining exactly what it would take to win his support. His office said there would be no further comment or explanation, including offering suggestions to legislators about what safeguards the bill needs to make it acceptable to Daniels.

The JG also has a mini-editorial on Daniels' veto of HEA 1491:
Worthy veto

A second veto from Gov. Mitch Daniels was justified.

He was right to kill a bill that would both create a sixth state court of appeals – at an annual cost of $2.4 million – and change the method of selecting judges in St. Joseph County from appointed to elected. Daniels rightly noted that the state could not afford the new court and that linking the two issues was improper.

Posted by Marcia Oddi on Sunday, May 17, 2009
Posted to Indiana Law

Law - "Storm of taxation threatens to swamp Internet"; Indiana connection

James G. Lakely of the Heartland Institute in Chicago and managing editor of InfoTech & Telecom News. has this opinion piece in the San Francisco Chronicle. Some quotes:

A perfect storm is brewing that could end the days of the Internet as a relatively tax-free zone, threatening to wash away one of the last remaining redoubts of economic enterprise in the United States.

State legislators are desperate for new tax revenue to plug massive deficits without cutting spending. And a confident Democratic Washington, D.C., now has the power to enact virtually any tax policy it wishes. Together, these two forces of nature are poised to impose sales taxes on everything you buy online.

The commerce clause of the U.S. Constitution, as interpreted by the Supreme Court in the 1992 Quill vs. North Dakota decision, prevents a state from compelling a company to collect sales taxes unless it has a physical presence in the state. For example, if you live in Indianapolis and buy a book on Seattle-based Amazon.com, Indiana cannot force the Internet book-selling giant to charge and collect its 7 percent state sales tax.

In that ruling, however, the court noted that Congress, which has the authority to regulate interstate commerce, is free to determine "the extent the states may burden interstate mail order (and online) concerns with a duty to collect use taxes." That day is imminent.

Sen. Mike Enzi, R-Wyo., and Rep. William Delahunt, D-Mass., are expected to sponsor a bill to allow states to force out-of-state Internet sellers to collect their sales taxes.

The National Conference of State Legislatures is writing the bill. The only holdup, according to spokesman Neal Osten, is "adding some new provisions at the request of various stakeholders."

"Stakeholders," let's be clear, are not American taxpayers but state legislatures wanting a new source of revenue to fill the gaps in their bloated budgets.

This bill would buffet the U.S. economy at the worst possible time. The economy contracted by more than 6 percent in the past two quarters. The last thing we need right now is more policies that suppress commerce. * * *

Internet sales taxes also present a compliance nightmare for every online firm, from small mom-and-pop retailers to behemoths such as Amazon and Overstock. There are about 7,400 tax districts across the United States, which makes it absurdly difficult to ascertain which state gets what cut of tax revenue for a sale by an online retailer in California, made from a coffee shop in North Carolina, using a Wi-Fi connection from a company based in New York and routed through servers in Illinois, Nebraska and Texas.

Supporters of this idea - a cabal known as the Streamlined Sales Tax Project - say part of the deal will be a simplification of sales taxes from state to state. The public can be forgiven for looking at the history of tax "simplification" in America and seeing it as a scheme to force all states' tax rates up by reducing competition among the states.

One can empathize with state legislatures dealing with budgets bleeding pools of red ink. The solution, however, is not to hammer Americans with a hurricane of new taxes but to reduce government to handle only what is really needed. The public can easily afford that without new taxes.

Tie the above with an item reported in the blog, Capitol Watchblog, May 16th:
Republican State Senator Luke Kenley took a break from statehouse budget items and headed to Washington DC to meet with Indiana’s Congressional delegation. Kenley was lobbying for changes in the way Indiana collects sales tax revenue over the Internet and making it more uniform with other states.

Posted by Marcia Oddi on Sunday, May 17, 2009
Posted to General Law Related

Ind. Courts - More on: Emergency "bonding-out rule" signed Thursday by the judges of St. Joseph Superior Court

Updating this ILB entry from yesterday, today Sue Lowe reports in the South Bend Tribune:

SOUTH BEND — There were two new developments in the arrests of anti-abortion protesters at the University of Notre Dame Saturday.

It turns out six people arrested Friday will not have to spend the whole weekend in jail as officials originally thought.

And 19 people were arrested Saturday.

Bonds were set for the six who were arrested a second time Friday including conservative politician Alan Keyes.

None of them had bonded out as of 3 p.m. Saturday but bond was set at $1,000 each. * * *

A new rule was signed Thursday by the judges of St. Joseph Superior Curt requiring that people arrested a second time on a misdemeanor charge not be able to bond out of jail until a hearing before a judge.

Officials initially thought Keyes and five other people would not be able to bond out until they appeared in court Monday.

But St. Joseph County Police Sgt. Bill Redman said somebody from the St. Joseph County prosecutor’s office and St. Joseph Superior Court Judge Jerome Frese reviewed the cases Saturday and Frese set the bonds.

Posted by Marcia Oddi on Sunday, May 17, 2009
Posted to Indiana Courts

Saturday, May 16, 2009

Ind. Decisions - Still more on: "Hoosier Lottery settles federal lawsuit"

Here is the May 9th settlement document in the Hoosier Lottery case.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: "Hoosier Lottery settles federal lawsuit"

Updating this ILB entry from earlier today, Peter Schnitzler of the Indianapolis Business Journal has a comprehensive story on the settlement, which the IBJ reports it obtained a copy of. Some quotes from the story:

[The eight plaintiffs] were all fired between January and August 2005 while Esther Schneider—Republican Gov. Mitch Daniels’ first appointee to the position—was the lottery’s executive director.

After recording individual complaints with the U.S. Equal Employment Opportunity Commission, they filed federal suit together, alleging civil rights violations under Title VII of the Civil Rights Act of 1964.

Schneider stepped down in December 2006, less than two years after she took the job. On May 1 of this year, her successor, Kathryn Densborn, signed the settlement. IBJ obtained a copy through a public records request. In it, the lottery admits no guilt.

“The Lottery denies any liability for the matters alleged in the lawsuit and contends that the plaintiffs’ terminations of employment were lawful in all respects,” it reads. “The plaintiffs and Lottery now desire to compromise and settle the lawsuit in its entirety.”

The case had been scheduled for a July jury trial. Court records show that the lottery had planned to argue it had been overstaffed and had legitimate, nondiscriminatory reasons for firing the eight black employees, in addition to 26 white employees. The lottery now employs 186.

The lawsuit provides few details surrounding the firings of the black employees, beyond asserting they were based on racial discrimination. * * *

Local law firm Macey Swanson & Allman, which represented the former employees, will receive $841,318 as its share of the settlement; the individual plaintiffs will each receive from $166,893 to $304,079.

Schneider, who was not a defendant, told IBJ she had not been aware of the settlement and was “stunned” by the size of the payment. She denied discrimination was the basis for any firing, and questioned the plaintiffs’ capacity to show proof.

“The decision for a settlement and to pay usually overrides principles for business,” said Schneider, who now works as a consultant. “It’s not the decision I would have made had I still been the director, but it’s not my job anymore.”

None of the parties to the settlement would comment because the agreement specifically prohibits doing so. It includes a “confidentiality and non-publicity” clause restricting disclosure.

“The parties understand and agree that the Lottery is subject to the Access to Public Records Act … and that this agreement may qualify as a public record,” the settlement reads. “The parties nevertheless agree that they shall not directly or indirectly publicize, reveal, or in any other manner draw attention to the settlement or this agreement.

“In the event of media inquiries concerning the settlement or this agreement,” it continues, “the parties will limit their response to a statement that the case was resolved to the mutual satisfaction of the parties.”

That’s the answer both lottery spokesman Andrew Reed and plaintiffs’ attorney Kimberly Jeselskis gave, verbatim, to IBJ’s questions. Daniels’ spokeswoman Jane Jankowski also declined to comment. * * *

Among the 44 questions for potential jurors proposed by the lottery’s counsel:

- “Have you developed any opinion of [Gov.] Mitch Daniels or his administration that would affect your view of the evidence in this case?”

- “Have you visited the Web site www.takingdownwords.com or other Web logs (“blogs”) critical of the management of the Lottery during the administration of Mitch Daniels?”

- “What magazines, journals or newspapers do you regularly read?”

In their 26 proposed juror questions, the plaintiffs’ attorneys also inquire about political leanings: “Have you had any bumper stickers on your car at any time during the last five years? If so, what did they say?”

Court records say the lottery had planned to argue that the plaintiffs had poor performance records; checkered credit histories; negative, insubordinate attitudes; and bad driving records.

This is the second discrimination lawsuit the lottery has settled stemming from Schneider’s reign.

In April 2008, it agreed to pay $225,000 to settle a lawsuit filed by former General Counsel Janna Shisler alleging violations of the Americans with Disabilities Act. * * *

That settlement was first reported by the Fort Wayne Journal Gazette last year. Like the settlement with black employees, it contains a confidentiality clause that prevents parties from calling attention to the matter.

For more, see this entry by Gary Welsh of Advance Indiana, along with the comments.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Ind Fed D.Ct. Decisions

Courts - "A Standard for Fair Trials"

Albert D. Brault and Timothy F. Maloney of the American College of Trial Lawyers have a column today in the Washington Post proposing new rules to address problems of prosecutorial misconduct.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Courts in general

Ind. Decisions - "Court says challenge to hog farm can go on"

The Court of Appeals decision yesterday in the case of Benton County Remonstrators v. Board of Zoning Appeals of Benton County, et al (see ILB entry here - 3rd case), is the subject of a brief story today in the Lafayette Journal Courier:

Disagreements surrounding a controversial confined hog operation planned for two sites near Boswell will again go before a Benton County judge.

The Indiana Court of Appeals issued a unanimous, 14-page ruling Friday on arguments by both parties: remonstrators representing Benton County residents and the Benton County Board of Zoning Appeals.

The case was sent back to the trial court for proceedings consistent with the appellate court's decision.

The higher court found that remonstrators have standing to challenge a decision by the BZA, which in March 2008 granted special exemptions to North Fork Farms LLC.

North Folk hopes to build a 10,000-head farrowing operation near 5501 S. County Road 600 West and a 6,000-head finishing farm near 4280 S. County Road 200 West.

Remonstrators argued that a CAFO would devalue adjoining properties.

The appellate court, however, sided with the BZA on other legal matters, including that Benton County Judge Rex Kepner had authority to appoint a special judge from Warren County.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Gary loses round in casino cash clash"

The Court of Appeals decision Thursday in the case of City of Gary v. Majestic Star Casino (ILB summary here) is the subject of a story today in the NWI Times reported by Patrick Guinane:

Gary has lost its latest attempt to force Majestic Star Casino to resume paying a $600,000 monthly subsidy to the city.

The Indiana Court of Appeals on Thursday upheld a lower court decision that denied Gary's request for an injunction forcing Majestic Star to continue paying the subsidy while the two sides fight a court battle over an unbuilt access road to Buffington Harbor.

"The city's request to force us to continue payments while all of these disputes were going on was not well grounded, and the Court of Appeals has affirmed that unanimously," Peter Rusthoven, an attorney for Majestic Star, said Friday.

Gary Corporation Counsel Susan Severtson declined comment on the ruling Friday afternoon, saying she had yet to receive a copy of the appellate court opinion. The city has 30 days to appeal to the Indiana Supreme Court or ask the appellate court for a rehearing.

The dispute centers on a modification to the 1996 agreement in which Majestic Star agreed to pay 3 percent of its gaming profits to Gary, a deal similar to those negotiated by other casino host communities. Majestic Star argues that a 2005 amendment to the deal allows the company to withhold the subsidy until the city builds an access road to the casino harbor.

In March 2008, Gary Controller Celita Green told a Marion County judge that Majestic Star's withholding of the subsidy -- originally intended for economic development -- would prevent the financially troubled city from paying police and firefighter overtime.

Majestic Star owner Don Barden released $4.4 million to the city in September, while the two sides were pursing settlement. Rusthoven estimated that at least $3 million has gone into escrow since those negotiations dissolved.

As the dispute lingers, Northwest Indiana legislators are pushing legislation to move at least one of Barden's two lakefront casinos to the city's south side, either to a riverboat on the Little Calumet River or to a land-based facility near Interstate 80/94. Region lawmakers hope to revive the issue when the General Assembly convenes next month for a budget-writing special session.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Hoosier Lottery settles federal lawsuit"

Jon Murray of the Indianapolis Star reports today:

Discrimination lawsuits filed after a 2005 shakeup in the Hoosier Lottery have cost the agency $3 million in payouts.

The largest hit came this month with a nearly $2.8 million settlement resolving a federal lawsuit by eight former employees who said they were fired because they are African-American. Last year, the state-run lottery agreed to pay $225,000 to settle a lawsuit by its former attorney who is disabled.

The lottery, a financially independent enterprise, will pay by drawing on profits that amounted to $217 million last year. * * *

The longtime employees were fired between January and August 2005, under then-Executive Director Esther Schneider. She was Gov. Mitch Daniels' first appointee to lead the lottery when he took office.

When Schneider stepped down in January 2007, Daniels lauded her for restoring confidence in lottery operations and record financial returns. But she also drew criticism for aggressive management, including more than two dozen firings on a staff of about 200. * * *

Schneider's successor, Kathryn Densborn, has signed both of the settlements.

The racial-discrimination settlement follows a legal fight over the lottery's assertion of immunity as a state agency against some of the claims. U.S. District Court Judge Sarah Evans Barker and the 7th U.S. Circuit Court of Appeals ruled the lottery did not have such protection, in part because it receives no state funding. * * *

The new settlement covers Freddie Burris, Michael Crawford, Darien Hayes, Kenneth Hicks, Kelli Jeffries, Vickie Presley, Rodney Williams and Donna Southers. It ends a lawsuit filed in August 2005.

Six had worked for the Hoosier Lottery since its inception in 1989, two since 1997.

Under the $2.75 million settlement, each will receive varying payments for wages and compensatory damages, averaging $239,000 per person. The settlement includes $841,000 in attorneys' fees for Indianapolis law firm Macey Swanson and Allman.

A year ago, the lottery settled a lawsuit by former general counsel Janna J. Shisler by paying $146,000 to Shisler and $79,000 in attorneys' fees.

Shisler was forced to quit in September 2005, her suit said, after Schneider treated her with hostility and was less willing to accommodate her quadriplegia than other directors had been since she started work in 1992.

Judge Barker's Jan. 7, 2008 district court ruling finding the Lottery is not a state agency, Burrus v. State Lottery Comm’n, is available here and is discussed in the latter part of this ILB entry from May 31, 2008.

The 7th Circuit opinion affirming Judge Barker, holding "The Lottery is not entitled to sovereign immunity because it is not an arm of the state. ," is summarized in this Oct. 6, 2008 ILB entry.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Ind Fed D.Ct. Decisions

Court - Judge Diane Wood "Often Spars With Conservative Colleagues on the 7th Circuit"

From a lengthy story today in the Washington Post, reported by Peter Slevin:

CHICAGO -- The verbal sparring began quickly. Less than two minutes into the lawyer's argument, U.S. Appeals Court Judge Diane P. Wood launched the first question. A Chicago condominium board had repeatedly removed a mezuzah from a Jewish resident's door frame, and Wood viewed it as a violation of religious freedom.

To her right, Judge Frank H. Easterbrook disagreed. Firing his own questions, he suggested that the dispute over the small case containing Torah verses was rooted in nothing more than a condo association's effort to eliminate hallway clutter.

Back and forth they went during oral arguments at the U.S. Court of Appeals for the 7th Circuit. It was a familiar dance, joined energetically by Judge Richard A. Posner, who most often aligns with his fellow Reagan appointee Easterbrook.

Wood's 14 years alongside Posner and Easterbrook, who often serve together as a panel of the circuit court, are being studied afresh as President Obama prepares to make his first nomination to the Supreme Court. Wood, described by associates as smart, progressive, steadfast and collegial, is a onetime colleague of Obama's at the University of Chicago and is considered by many to be on the shortlist of potential replacements for retiring Justice David H. Souter.

Wood knows what it is like to duel two of the most formidable and prolific conservative jurists in the country, a key element of Obama's search as he tries to shift the dynamic of a court led by Chief Justice John G. Roberts Jr. and Justice Antonin Scalia. * * *

In a different case, Wood helped overturn a deportation order against a Ukrainian woman who showed up two hours late for a court hearing. The immigration judge said the woman, who was delayed while waiting for her interpreter, had missed her chance. Wood said she had a right to a hearing.

Wood also took a more expansive view in a case that targeted the Indiana General Assembly's opening prayer as too often overtly Christian.

Again on the losing side of a 2 to 1 decision, she objected to the court's ruling that four Indiana residents -- a Quaker, a Methodist and two Catholics -- had no standing to file suit because they did not connect the spending of tax dollars to a violation of the Constitution's establishment clause.

Wood drew on writings including the Federalist Papers and the State Department's religious freedom report. She noted James Madison's worries about unchecked legislatures and his comment that strong majorities can make minority rights "insecure." She said a careful reading of an opinion by Justice Samuel A. Alito Jr. supported her view that the plaintiffs deserved their day in court.

See this ILB entry from May 13th on the condominium board case, Block v. Shoreline Towers. Here is the 23-page July 10, 2008 decision of the panel. Judge Wood's dissent runs from p. 7 to 23 and ends with a picture of a mezuzah. Here is a link to the oral argument from Feb. 20, 2008.

The case went before the entire 7th Circuit on May 13th. Listen to the oral argument here.

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Courts in general

Ind. Courts - Emergency "bonding-out rule" signed Thursday by the judges of St. Joseph Superior Court

Pablo Rios reports today in the South Bend Tribune:

Before a new emergency rule was signed Thursday in St. Joseph Superior Court, an individual arrested a second time could bond out from jail by posting bond according to a presumptive bond schedule established by the courts.

Under the new rule, individuals arrested for the second time on a misdemeanor count can no longer bond out. Those individuals must remain in jail until a hearing before a judge. The judge will review the case and set a new bond, which may be higher than the presumptive bond. * * *

The new rule wasn't announced until Friday afternoon, after political activist Alan Keyes and 20 others were arrested for trespassing at the University of Notre Dame.

The new rule is something "we, or at least I, have been thinking about for quite some time," Chief Judge Michael P. Scopelitis said Friday. The arrests of protesters at Notre Dame brought the need for such a rule into focus, but the need existed also in other cases, he said.

A classic example, Scopelitis said, is of an individual arrested for driving while intoxicated, posting bond, then being arrested a second time for driving while intoxicated and posting the presumptive bond yet again.

The new rule would ensure that such a person remains in jail until a judge has a chance to review the case and set an appropriate bond.

The rule became effective Thursday and will remain in effect until Dec. 31, unless it is adopted as a local, permanent rule.

Notre Dame officials did not ask the judges to implement such a rule at this time, Scopelitis said. "This local rule is not for Notre Dame's benefit," he said. "It was not created to benefit Notre Dame in some way."

Posted by Marcia Oddi on Saturday, May 16, 2009
Posted to Indiana Courts

Friday, May 15, 2009

Environment - "Well project tests storage of carbon dioxide"

James Bruggers, environmental reporter for the Louisville Courier Journal, has a long and informative article today on testing of underground storage of carbon dioxide. This is the "carbon capture and sequestration" upon which "clean coal technology" is based. Here is a sample from the story:

With Congress and President Barack Obama promising to tackle climate change, coal-dependent states like Kentucky, along with the federal government and energy companies, are investing heavily in what's called carbon capture and sequestration.

It's billed as the way to keep Kentucky and the United States in the coal business if Congress or the U.S. Environmental Protection Agency limits greenhouse gas emissions. Kentucky is the third-largest producer of coal in the United States and gets more than 90 percent of its electricity from coal.

But by all accounts, the challenges are daunting.

First, carbon dioxide would need to be captured in ways that people and businesses can afford.

Last month, a University of Kentucky-led consortium of government agencies, electric utilities and their research organizations, fueled by at least $24 million over 10 years, announced it was seeking ways to do just that.

But participants in that research said the most promising method to be studied -- dissolving carbon dioxide from power plant flue gas into a solvent, then boiling the solvent to separate the carbon dioxide for storage -- uses as much as a third of a power plant's electrical output and could add 60 percent to 100 percent to operating costs.

Then, the captured carbon dioxide would have to be permanently stored underground, and on a massive scale -- a volume each day at least equal to the total daily U.S. consumption of oil, according to the 2007 "Future of Coal" study by researchers at the Massachusetts Institute of Technology.

"Sequestration works," said John Grasser, a spokesman for the U.S. Department of Energy. "It can be done in the laboratory. It can be done on a small scale. But you can't build a billion-dollar plant and cross your fingers and hope it works."

The Department of Energy, which has been funding its own regional carbon sequestration research consortiums and is about to begin testing large-scale injections in Illinois, estimates that it will be at least 15 years before the technology can be put to full use, Grasser said.

The goal, he said, is to keep the extra costs to no more than 10 percent.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today, including opinions dealing with BMV/SSA and with CAFO zoning (and 5 NFP)

For publication opinions today (3):

In Lyn Leone, Omari Vaden, et al v. Commissioner, Indiana Bureau of Motor Vehicles, et al, the summary in advance of the oral argument read:

The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration.
Today, in a 20-page, 2-1 opinion, Judge Bradford writes:
Appellants/Plaintiffs Lyn Leone, Omari Vaden, et al., (“the Class”) appeal from the trial court's denial of their motion for a preliminary injunction against Appellees/Defendants the Commission of the Indiana Bureau of Motor Vehicles, et al., (“the BMV”). The Class contends that it has satisfied all of the requirements for the grant of a preliminary injunction, while the BMV argues that the Class has satisfied none. Because we conclude that the Class has shown that the BMV's challenged policy violates constitutional guarantees of due process by failing to provide ascertainable standards, but that a preliminary injunction would not be in the public interest, we affirm the trial court's denial of the Class's request. * * *

The Class argues that the BMV violates Indiana law by essentially deferring to the SSA on the question of one's legal name, when the matter is purely one of Indiana law. The General Assembly has endowed the BMV with broad powers governing the issuance and regulation of driver's licenses and state identification cards. * * *

We conclude that the BMV's policy, as embodied in Indiana Administrative Code Title 140, rule 7-1.1-2, does not violate Indiana law. The Class cites to no authority that explains why requiring a person to update information with the SSA or BMV violates Indiana law in any way, nor are we aware of any. We are unwilling to essentially invalidate the BMV's program without clear authority that it has somehow violated Indiana law. The burden was on the Class to establish a clear violation of Indiana law, and it has not done so.

While we agree that it is the law of Indiana that a person can change his or her legal name without resort to formal legal process, it does not follow that all others, including governmental agencies like the BMV, are required to simply accept the word of the applicant that he is who he claims to be. In other words, the ability to change one's name at will does not equate to freedom from all of the consequences of such a decision. In our view, the public interest in curtailing identity theft shifts the burden and inconvenience to the person seeking to change his name. * * *

Taking all of the relevant statutes into account, we conclude that implicit in the broad statutory authority granted to the BMV is the power to verify the information submitted to it by an applicant for a driver's license or identification card by any reasonable method. As previously mentioned, the BMV has the power to revoke a license on any reasonable ground, and the failure (or refusal) of a cardholder to establish his or her identity seems eminently reasonable to us, even if that means using federal records. By taking away the BMV's power to verify the information given to it using the SSA standard it has chosen, the Class's position on this question would effectively eviscerate the statutory provisions granting the BMV broad powers in this area. In summary, we conclude that the policy does not violate Indiana law by using the SSA's database to verify the information supplied by applicants. * * *

The Class alleges two distinct due process violations, contending that the BMV has acted without ascertainable standards and that the program at issue is without a rational basis. We agree with the Class regarding the first claim, but not the second.

I. Ascertainable Standards * * *

Even though we believe that the BMV has failed to provide ascertainable standards, we do not accept the Class's argument that the policy lacks a rational basis. * * *

The question, then, is whether the presence of an unresolved discrepancy between BMV and SSA records is a rational basis for suspending or revoking a driver's license or identification card. We conclude that it is. In short, the policy effectively blocks a well- known avenue for identity theft by making it much more difficult to appropriate another's social security number in order to obtain state identification. Moreover, although objective proof of the success of the program is unnecessary, all indications are that the program in question is in fact effective. * * *

II. Public Interest

Even though we are convinced of the lack of ascertainable standards in the BMV's policy, thereby relieving the Class of its burden of proving irreparable harm and that the balance of harms weighs in their favor, it must still establish that a preliminary injunction would be in the public interest. This it has failed to do. We conclude that an injunction in favor of the Class would clearly disserve the public interest in preventing and detecting identity theft. Suspension of the BMV's program would have the effect of restoring a well- known avenue for fraud and identity theft. We simply cannot agree that the inconvenience of a few Hoosiers (which is really all the record before us shows) outweighs the very real threat that identity theft poses to all of us. * * * We conclude that the Class has failed to establish that a preliminary injunction is in the public interest and affirm the trial court's ruling on that basis.

Conclusion

We conclude that the BMV policy does not violate Indiana law by using the SSA's files to verify the accuracy of its own information and by requiring that individuals correct any discrepancies. We also conclude, however, that the policy fails to provide ascertainable standards and so violates the federal Constitution's guarantee of due process. Even so, we nevertheless affirm the trial court's denial of the Class's request for a preliminary injunction, as we conclude that it has failed to show that it would be in the public interest. The judgment of the trial court is affirmed.

BAILEY, J., concurs.

RILEY, J. dissenting with separate opinion:

I respectfully dissent. The majority has chosen to author its opinion without telling the factual history of the real people identified by the Appellants-Plaintiffs that are being hassled by the BMV's policy shift. Additionally, they have chosen to ignore Indiana law controlling administrative actions that an agency may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. Lee Alan Bryant Health Care Facilities, Inc. v. Hamilton, 788 N.E.2d 495, 500 (Ind. Ct. App. 2003), clarified on reh’g, 793 N.E.2d 29 (Ind. Ct. App. 2003). * * *

The majority relies upon the testimony of Detective Eads to find a “rational basis” for the BMV's ultra vires acts. However, the law as codified by our legislature is that a person applying for a drivers license or identification card must provide the BMV with their “full legal name.” See I.C.§§ 9-24-11-5(a)(1) and 9-24-16-3(b)(1). It has been the long standing law of our state that:

a full name consists of one christian or given name, and one surname or patronymic. The two, using the christian name first and the surname last, constitute the legal name of the person. Any one may have as many middle names or initial as are given to him, or as he chooses to take; they do not affect his legal name.

. . . No person is bound to accept his patronymic as a surname, nor his christian name as a given name, though the custom to do so is almost universal amongst English- speaking people, who have inherited the common law. A person may be known by any name in which he may contract, and in such name he may sue and be sued, and by such name may be criminally punished; and when a person is known by several names—by one as well as another—he may contract in either, and sue and be sued by the one in which he contracts, and may be punished criminally by either.

Schofield v. Jennings, 68 Ind. 232, 234-35, 1879 WL 5847, 1 (1879). As such, Leone, Vaden, and Goff provided their “full legal names” to the BMV. If the BMV now thinks that in the day and age of identity theft that applicants for drivers licenses or identification cards should provide their name as it appears in the SSA database, then the BMV has the opportunity to approach our legislature and seek an amendment to Indiana Code sections 9-24-11-5(a)(1) and 9-24-16-3(b)(1).
In Sandra Dinsmore, et al v. Fleetwood Homes of Tennessee, Inc. , a 14-page opinion, Judge Darden writes:
Sandra Dinsmore (“Sandra”) and intervening plaintiffs Victor Dinsmore, Carissa Dinsmore (by her natural parents, Victor and Sandra Dinsmore), and Bradley Tucker (by his natural parents Tanya Tucker and Brian Dinsmore) appeal (1) the trial court's order granting summary judgment to Fleetwood Homes of Tennessee, Inc. (“Fleetwood”); and (2) their motion to amend by interlineation Sandra‟s response to Fleetwood's motion for summary judgment. We reverse. * * *

The plaintiffs' complaints raise claims based on Indiana's common law warranty of habitability. Fleetwood's motion for summary judgment and designated evidence did not establish that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law in that regard. Therefore, summary judgment to Fleetwood is precluded. Accordingly, the issue of intervening plaintiffs' response to the summary judgment is moot.

In Benton County Remonstrators v. Board of Zoning Appeals of Benton County, et al , a 14-page opinion, Judge Mathias writes:
The Benton County Remonstrators (“Remonstrators”) appeal from a dismissal of their verified petition, complaint, and application for writ of certiorari, declaratory judgment and judicial review. * * * Brian Martin, David Martin, and North Fork Farms, LLC (“North Fork”) cross appeal, alleging that the verification by Remonstrators' attorney of the appeal is not allowed under Indiana Code section 36-7-4-1003(a). * * *

The trial court did not err in determining that the Remonstrators' counsel may verify the Remonstrators' Petition. The original judge did not err when he rescinded his order appointing a special judge who was ineligible under local rule and appointed an eligible special judge in his place. The Remonstrators waived the issue of when the clerk mailed the panel of judges for strike when they failed to raise the issue before the trial court. The trial court erred in determining that all of the Remonstrators lacked standing to challenge the BZA decision, when the Remonstrators who were adjoining landowners had sufficiently pleaded a special harm that would result in a pecuniary injury. Finally, the trial court erred in dismissing the Remonstrators' Petition as it related to the East Application but did not err in dismissing the Remonstrators' Petition as it related to the West Application.

Therefore, we remand this case to the trial court for further proceedings consistent with this opinion concerning the East Application.

NFP civil opinions today (2):

Tracy Lynn Weston, et al v. Fayette Memorial Hospital, et al (NFP) - "Tracy Lynn Weston, as personal representative of the Estate of Clinton Dale Weston (“the Estate”), filed suit in Fayette Superior Court against Fayette Memorial Hospital (“the Hospital”) and Preferred Emergency Specialists, Inc. (“Preferred”) (collectively “the Defendants”) alleging that the Defendants negligently hired and retained Dr. Scott Longevin (“Dr. Longevin”). The Defendants moved for summary judgment, claiming that Dr. Longevin was an independent contractor, not an employee, and thus they could not be liable for negligently hiring or retaining him. The trial court granted summary judgment in favor of the Defendants. The Estate now appeals and claims that the trial court erred in granting summary judgment in favor of the Defendants because there is a genuine issue of material fact with regard to whether Dr. Longevin was an employee of the Defendants. We reverse and remand. "

Laura J. Blickem v. Review Board of the Dept. of Workforce Development and Gas America Services, Inc. (NFP) - "Laura J. Blickem received unemployment benefits after her employment with GasAmerica Services, Inc., ended, and Gas America appealed the Department of Workforce Development’s initial determination that she was eligible for benefits. The Department mailed documents relating to Blickem’s upcoming telephonic hearing to her address of record, including a form for Blickem to return to provide the Administrative Law Judge with her contact telephone number for the hearing. Shortly before the hearing began, Blickem faxed her telephone number to the Department. However, the ALJ did not see the fax, ended the hearing after determining that Blickem had failed to appear, and reversed the initial Determination of Eligibility. Blickem appealed, and the Review Board affirmed the ALJ’s decision without accepting additional evidence. Blickem now appeals to this Court, contending in part that the Review Board erred by refusing to consider additional evidence. Because we agree with Blickem that the Review Board should have reviewed her proffered additional evidence and remanded for a new hearing, we reverse and remand for a new hearing before an ALJ. * * *

"The ALJ did not consider any of Blickem’s evidence because the ALJ determined that she had failed to appear for her hearing or provide a telephone number at which she could be reached. However, Blickem did provide a telephone number to the Department before her hearing commenced, and her fax, time stamped three minutes before the hearing started, made apparent that she was available and wished to participate in her hearing."

NFP criminal opinions today (3):

Qunicy Montgomery v. State of Indiana (NFP)

Timothy J. Randle v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on: Open meetings law may be unconstitutional, 5th Circuit rules

Updating this ILB entry from May 8th, Michael Kunzelman of the AP reported May 12th in the Chicago Tribune in a story that begins:

NEW ORLEANS - Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws.

A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails.

The 5th Circuit panel said U.S. District Judge Robert Junell incorrectly ruled that the First Amendment "affords absolutely no protection to speech by elected officials made persuant to their official duties."

"The First Amendment's protection of elected officials' speech is full, robust, and analogous to that afforded citizens in general," Judge James Dennis wrote.

The appeals court directed Junell to decide whether the Texas Open Meetings Act passes the "strict-scrutiny" test under the First Amendment and "make the state carry its burden of proving that the statute pursues a compelling interest which the law is narrowly tailored to further."

Texas Attorney General Greg Abbott's office says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test.

"Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down -- in whole or in part -- for violating the Amendment's free speech protections."

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

The list of attorneys general who signed onto Caldwell's brief includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

Here is a link to the 5th Circuit opinion.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Courts in general

Ind. Decisions - Two today from 7th Circuit; Posner reverses Indiana email sex with minor conviction

In U.S. v. Loera (ND Ind., Judge Simon), an 11-page opinion, Judge Evans affirms the lower court in an opinion that is interesting reading. It begins:

Jose Loera, Jr. was riding as a passenger in an SUV when Indiana state police pulled it over for a pair of traffic violations. This case, of course, isn’t here because of traffic violations: the rig was packed with cocaine, and the stop was just an excuse to make a drug bust. Despite the precedent authorizing this tactic, Whren v. United States, 517 U.S. 806 (1996), Loera contends that the district court should have suppressed the drug evidence. He also asks us to overturn his conviction for want of a speedy trial and, in the alternative, to vacate his sentence for what he claims is a violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).

A road trip from Atlanta, Georgia, to Valparaiso, Indiana, requires driving some 685 miles. That’s not too bad if you have some company and a good radio. But it’s downright frightening if your “company” includes 21 kilos of cocaine. That’s the position in which Loera found himself when he sat down in the passenger seat of a Ford Explorer on the night of December 13, 2004. The driver, a woman named Angela Bennett, no doubt shared Loera’s fears. But money is a pretty good anti-anxiety medication, so, with the promise of a big payday upon delivery, they hit the road.

Everything looked good for a while, but unbeknownst to Bennett and Loera, the DEA had the case scooped.

In U.S. v. Mannava (ND Ind., Judge Simon), a 9-page opinion, Judge Posner reverses the lower court in an opinion that begins:
Rahul Mannava was convicted by a jury of violating 18 U.S.C. § 2422(b), which makes it a crime to persuade, induce, entice, or coerce a minor “to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or [to attempt] to do so.” The judge sentenced Mannava to 10 years in prison.

A detective posing as a 13-year-old girl named “Gracie” had engaged in email conversations with Mannava during which Mannava had sought to persuade “her” to have sex with him (also to fondle herself in a sexual manner) and they had arranged to meet at an ice cream parlor. The indictment charged him with having engaged in sexual activity chargeable as criminal offenses under Indiana law. In response to his motion for a bill of particulars, the government identified two Indiana statutes. One, the “vicarious sexual gratification” law, makes it a felony for an adult knowingly to induce a child under 16 “to touch or fondle” herself “with intent to arouse or satisfy” the child or the adult. Ind. Code § 35-42-4-5(a). The other, the “child solicitation” law, forbids an adult know- ingly to solicit a child who is, or who the adult believes is, under 14 to engage in sexual activity. Ind. Code § 35-42-4-6(b). The jury rendered a general verdict; it was not asked to specify the Indiana offense that the defendant had committed.

Mannava challenges his conviction on four grounds. Only one requires reversal. But since the case must go back to the district court for further proceedings, we shall address the others as well.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - More on: "Cancer Patients Challenge the Patenting of a Gene"

Updating this ILB entry from May 13th, today Joe Mullin of IP Law & Business has a long and comprehensive report on the suit, including links to the complaint and other items. The story begins:

This week, The Prior Art takes a break from its usual surfing through federal court dockets in search of trolls and such to consider a potential landmark suit against the PTO. Association for Molecular Pathology, et al. v. United State Patent and Trademark Office, et al, 09-cv-04515, S.D. New York, filed 5/12/2009.

For nearly 30 years, the U.S. Patent and Trademark Office has been granting patents on portions of the human genome, a practice that has resulted in thousands of human genes -- as much as 20 percent of all human genetic material -- being patented.

This week, that practice came under a full-bore legal assault when groups representing more than 100,000 doctors and researchers, working together with lawyers at the Public Patent Foundation and the American Civil Liberties Union, filed suit against the PTO and Myriad Genetics, a Utah-based genetic testing company. It's a lawsuit two years in the making.

The suit's immediate goal is to invalidate seven patents that give Myriad the sole rights to administer tests and do research connected to a pair of genes closely connected to breast and ovarian cancer, BRCA-1 and BRCA-2 (pronounced "bracka-one" and "bracka-two"). Should the plaintiffs prove successful, though, their strike against the PTO would have far-reaching implications.

Dan Ravicher, the patent lawyer at the Public Patent Foundation who is working with the ACLU on the case, puts it bluntly: "The intention is to take down patents on human genes."

Myriad is a ripe target for several reasons. First, the patents it holds are on tests that diagnose breast and ovarian cancer. That got the attention of ACLU lawyers who focus on women's rights. Second, Ravicher says that -- unlike some corporate patent-holders that widely grant low-cost licenses to researchers -- Myriad has aggressively enforced its patents, making them particularly harmful.

"They have gone around and shut down researchers who are doing BRCA1 and BRCA2 research and providing clinical services," Ravicher says. "That includes universities like the University of Pennsylvania and New York University. They send cease and desist letters, and threaten to sue people."


Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Courts in general

Law - "Justice Dept. nomination becomes proxy fight for Supreme Court battle "

Reid Wilson reports in The Hill in a long story that begins:

Outside organizations on both the left and right increasingly view the fight over a controversial Justice Department nominee as a proxy battle for President Obama’s first Supreme Court nomination.

Indiana University Professor Dawn Johnsen, whom Obama chose to head the Office of Legal Counsel (OLC), has been one of the president’s most controversial nominations so far. Johnsen was the most vocal critic of the legal counsel’s office in the Justice Department during President Bush’s administration, and has sparked skepticism from Republicans for that outspokenness.

With 59 Democrats in the Senate and Al Franken waiting to be sworn in after a court fight in Minnesota, Democrats should have little trouble pushing through Obama’s nominees. But two Democrats, Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced reservations about her qualifications.

Specter said he would oppose Johnsen’s nomination even after his flip to the Democratic Party. Nelson is undecided, but he has said he is concerned with Johnsen’s work as a top lawyer for the National Abortion & Reproductive Rights Action League.

Sen. Richard Lugar (R-Ind.), who represents the nominee’s home state, is the only Republican who has said he will back Johnsen’s nomination and will vote for cloture. Earlier this week, Senate Majority Leader Harry Reid (D-Nev.) said he had yet to achieve the 60 votes needed to cut off debate on the nomination.

Conservative organizations see Johnsen’s nomination as an early opportunity to test a strategy they hope to pursue with a Supreme Court nominee, a strategy aimed at picking off centrist and conservative Democrats instead of focusing exclusively on the Republican Conference. In essence, the groups will try to play offense instead of defense.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to General Law Related

Courts - Another reason to ban cellphones in court rooms?

The story by Alana Roberts of the Daily Business Review is headlined "Mistrial Declared Over Executive's Texting From Witness Stand." It begins:

For future reference, do not read texts from your boss while on the witness stand. In fact, don't text at all.

Miami-Dade Circuit Judge Scott Silverman declared a mistrial in a civil fraud case Wednesday after being informed a witness on the stand in his courtroom had engaged in text-messaging while the judge spoke with attorneys during a sidebar conference. The dispute is over the sale of condo tower in North Miami Beach.

While the judge and attorneys conferred, a courtroom spectator passed a note to a defense attorney saying the witness, Sky Development chief operating officer Gavin Sussman, appeared to be text-messaging Sky chief executive Yizhak Toledano at the plaintiff table.

Vistaview attorney William Petros, a partner at Coral Gables-based Petros & Elegant, said the incident occurred while the judge and lawyers for both sides met at the bench on the third day of trial.

Petros asked for another sidebar and relayed his suspicions. The judge asked Sussman if he'd been text-messaging, and he admitted he and Toledano texted twice about Sussman's testimony, Petros said.

One message from Toledano to Sussman said: "We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years and know every corner." It wasn't clear from a transcript who sent the second text saying, "We maybe got this document after Sept. 7 when the bank discovered the problem."

Petros asked for a mistrial, which the judge granted.

Before that, [Judge] Silverman had engaged in a heated exchange with Toledano.

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

There is much more.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Courts in general

Ind. Decisions - Courts weighs interests of a 9-year-old boy awaiting adoption against the parental rights of his previously incarcerated parents

Oral argument was held yesterday before the Supreme Court in the case of In re Termination of the Parent-Child Relationship of J.M. (see ILB preview here).

Today Niki Kelly of the Fort Wayne Journal Gazette reports:

Indiana Supreme Court justices Thursday weighed the interests of a 9-year-old boy awaiting adoption against the parental rights of his previously incarcerated parents.

No decision was made in the case of J.M., a juvenile living in foster care in Allen County.

The boy’s mother and father were recently released from prison after serving sentences for conspiring to deal methamphetamine and other charges.

They appealed a November 2008 Indiana Court of Appeals decision that found there was no guarantee either parent would be able to care for J.M. after their release, and terminated their parental rights.

That decision overturned a February 2008 ruling by Allen Superior Court-Family Division Judge Charles Pratt denying the termination. Pratt said then that the only basis for the termination was the parents’ incarceration and that they should be given an opportunity to establish a stable and appropriate life.

J.M. was removed from the mother’s care in April 2004 by Montgomery County officials and lived with his aunt and grandmother in Vermillion County, but they grew tired of caring for him, according to court documents.

After a brief stint in foster care, the boy was sent to live with a paternal uncle and aunt in Allen County, in spite of objections by local officials regarding the danger of child abuse in the home.

Within months, the boy was removed from that home because of allegations of abuse. He was placed back in foster care.

According to court records, the boy’s mother wrote him letters every week from prison but saw him only a few times, and his father had not communicated with the child since 2005.

"They hardly know this child. This child hardly knows them," said Daniel Pappas, the child’s attorney.

He told the Supreme Court justices Thursday that the child’s need for permanency outweighs his parents’ rights. And he focused on the repeated criminal conduct of the parents when the child was in their care.

But attorneys Tom Allen and Richard Williams – representing the mother and father, respectively – said the parents are now out of prison with jobs and housing and want to reunite with their child. The couple are not married.

They argued that a federal rule triggered a mandatory termination petition by the Allen County Department of Child Services based solely on how long the child had been in foster care.

And they noted when the petition failed it was Pappas who appealed, not the state child protective agency.

Allen said there is a false impression that foster care has failed the child.

In fact, he said the boy is doing well in foster care and there is no harm in keeping him there for a bit longer while finalizing a reunification plan with his parents.

Williams also assured the justices that the boy’s father is on probation, receives random drug tests and has not re-offended.

He also said there are no allegations that the parents specifically did anything wrong with regard to the child’s care.

Justice Brent Dickson candidly told Pappas during the argument that he was struggling with the case because the original decision not to terminate the parental rights was made "by one of the state’s most thoughtful juvenile judges."

And he also pointed out that Indiana’s penal system is supposed to be based on reformation – not vindictive justice.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Ind. Sup.Ct. Decisions

Environment - "Owners say IDEM should pay for manure cleanup"

Updating a long list of earlier ILB entries, including the May 11th "Who cleans up if a hog farm goes bankrupt?" and the May 12th "Millions of gallons of hog manure spilled: State officials believe the discharge might have been deliberate", where the ILB noted that "it appears things have gone from bad to worse", today comes a story readers may have anticipated.

Seth Slaubaugh reports in the Muncie Star-Press:

EATON -- The owners of an abandoned hog farm from which an estimated 4 million to 5 million gallons of manure were released -- causing a fish kill -- are denying responsibility.

The Indiana Department of Natural Resources said 1,017 fish were killed in a ditch into which the manure was discharged from an earthen lagoon at the former Muncie Sow Unit. * * *

It appears that a hole in the dike of the lagoon was deliberately opened up over the weekend by earth-moving equipment.

"We are still looking into it and should know more as staff continue working to gather information," IDEM spokesman Barry Sneed said.

Since 1999, Muncie Sow Unit's owner has been fined more than $22,000 for spilling manure, failing to report manure spills, killing fish and other violations. The corporation is scheduled to be sentenced June 3 for environmental crimes.

Last year, Muncie Sow Unit was bought by John and Becky Moriarity from Grant County. IDEM gave the couple five years to clean out the 12-million-gallon manure lagoon and pits beneath the barns.

Primarily as a result heavy rainfall, IDEM on April 30 obtained a court order to remove manure from the farm to prevent a spill. The manure was being hauled in tanker trucks to an Indianapolis wastewater treatment facility at a cost of 9 cents a gallon.

Then this past weekend, millions of gallons of manure from the lagoon were drained -- apparently on purpose and in violation of the law -- into a ditch that empties to Mississinewa River.

"We were informed that somebody -- I shouldn't say somebody -- that a breach occurred," said Don Dunnuck, an attorney representing the Moriaritys. "There is an investigation as to how the breach occurred, whether or not it was man-made or muskrats or whoever."

"When the Moriaritys bought the farm, it was represented to them by the auctioneer that liquid in the lagoon was an asset, a fertilizer to be applied on farm land, and they thought they had five years to market this product," Dunnuck said. "Then this spring IDEM came in and filed an injunction against them, alleging there was an immediate threat of a spill."

A court granted IDEM authority to remove the manure, reserving the issue of who would pay for it until a later date, Dunnuck said.

"The Moriaritys' position is, they didn't create the problem, and they've got five years to solve it, and if IDEM wants to violate the five-year period, it's up to them to pay for it," Dunnuck said. "That issue has yet to be resolved by a court."

Now that the level of the lagoon has been lowered, "I don't see an emergency any more," Dunnuck said.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Environment

Ind. Courts - David Happe to succeed Hopper as Madison County judge

Shawn McGrath reports today in the Anderson Herald Bulletin:

Madison County’s newest soon-to-be judge was defending a client against theft charges Thursday afternoon when he learned that he had been appointed to preside over the very courtroom where the trial was taking place.

Indiana Gov. Mitch Daniels named attorney David Happe, 38, a Republican, as the new judge of Superior Court 4. Daniels could not be reached for comment.

“The governor thinks that David has a distinguished record of legal experience,” said Brad Rateike, the governor’s deputy press secretary. “The governor is confident he will serve the citizens of Madison County with distinction.”

The Superior Court 4 bench was left vacant with the sudden death of Judge David W. Hopper, 60, on Feb. 25 of a heart attack. The Indiana Supreme Court chose attorney Geoffrey Yelton to serve as the court’s temporary judge. Yelton did not apply to replace Hopper.

Fifteen Madison County lawyers applied for the office. Only six, however, received interviews: Happe; former Prosecutor Rodney Cummings; current Deputy Prosecutor Rudolph Pyle III; former Colorado Supreme Court Justice Gregory K. Scott; former Anderson mayoral candidate John M. Blevins; and former Superior Court 5 judicial candidate William C. Davisson.

Posted by Marcia Oddi on Friday, May 15, 2009
Posted to Indiana Courts

Thursday, May 14, 2009

Ind. Courts - More on: Disciplinary Commission Complaint: Delaware County Prosecutor Mark McKinney violated conduct rules

Updating this ILB entry from May 9th, here is a link to the Supreme Court Disciplinary Commission's 16-page complaint for disciplinary action against Mark R. McKinney, filed May 8th.

The link accompanies this story dated May 13th by Mary Spicuzza on Asset Forfeiture Watch.com.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Indiana Courts

Ind. Decisions - Tax Court issues one today

Charwood LLC, et al. v. Bartholomew County Assessor - "The Petitioners have challenged the Indiana Board of Tax Review‟s (Indiana Board) final determinations which upheld the Bartholomew County Property Tax Assessment Board of Appeals‟ (PTABOA) interim reassessments of their real property for the 2003 tax year. While the Petitioners have presented both a general and a specific issue for the Court‟s consideration, the Court consolidates them and restates the issue for review as: whether the PTABOA‟s 2003 interim reassessments were authorized under Indiana Code § 6-1.1-9-1." Affirmed.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Ind. Tax Ct. Decisions

Courts - Still more on: NY high court rules police need warrants for GPS trackers

Updating ILB reports from Tuesday and yesterday (including a link to the opinion), Sewell Chan reports today in the NY Times in a story that begins:

In a 4-to-3 ruling, the New York State Court of Appeals ruled on Tuesday that the State Police violated a criminal suspect’s rights under the State Constitution when it placed a GPS tracking device inside the bumper of his van without obtaining a warrant.

The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.

In three written opinions, the judges debated the constitutional issues raised by the growing use of global positioning system technology as a tool of surveillance. The case could set an important precedent for state and local police agencies.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Indiana Courts

Courts - "How Blogging Affects Legal Proceedings"

Updating these ILB entries from March 17th and May 7th, Richard Raysman and Peter Brown of the New York Law Journal have a lengthy and comprehensive report today on the issues.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Courts in general

Courts - South Carolina: "Kaye Hearn is second woman on state’s highest court"

A story today in the South Carolina paper, The State, trumpets the growing racial and gender diversity in that state's courts. Rich Brundrett's story begns:

Kaye Hearn on Wednesday became only the second woman in state history to be elected to the South Carolina Supreme Court, joining the first woman on the court.

“I believe in patience, perseverance,” a beaming Hearn said after the vote in the General Assembly. “It was definitely worth waiting for.”

Hearn, chief judge of the S.C. Court of Appeals — the state’s second-highest court — tried the past two years to join the Supreme Court, only to be bypassed each time by male colleagues on the Court of Appeals.

“It’s wonderful to have a sister joining me,” Supreme Court Chief Justice Jean Toal, who has been the sole woman on the five-member court for two decades, said after Wednesday’s vote.

Before Hearn’s election, South Carolina was among 15 states with only one female judge on their top courts, according to the most recent figures from the National Center for State Courts. Two states — Idaho and Indiana — have no women on their highest courts.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Courts in general

Ind. Courts - "Library will try to revive claims in fraud case"

Updating earlier ILB entries on the Indianapolis Central Library lawsuits, the Indianapolis Star reports today:

The Indianapolis-Marion County Public Library will not seek to overturn a Boone County jury's verdict against the library system, its lawyers announced Wednesday.

But the library is pursuing appeals to revive other claims that were never presented to the jury. Last month, after a five-week trial, the library lost its $25 million fraud case against a New York-based engineering firm, one of many companies targeted after defects were discovered in the concrete of the Central Library project's new underground garage. * * *

A petition filed Wednesday asked the Indiana Supreme Court to review the judge's pretrial dismissal of negligence claims against the engineering firm and an inspection firm. The Indiana Court of Appeals has already upheld that ruling.

A second filing began an appeal of another pretrial ruling dismissing breach of contract and negligence claims originally made by the project's architects. The library assumed those claims through its settlement with the architects.

[More] Here is an updated version of the story, reported by Jon Murray.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Indiana Courts

Ind. Courts - More on Daniels' veto of HEA 1491

Ed Ronco has this report in the South Bend Tribune. Some quotes:

Gov. Mitch Daniels has vetoed a bill that would have moved St. Joseph Superior Court judges to nonpartisan elections.

But the veto doesn't mean the fight is over, said the bill's author, state Rep. Craig Fry, D-Mishawaka.

In a statement explaining his veto, Daniels said St. Joseph County's model of selecting judges is "to be emulated, not discarded. It is not broken; it requires no repair."

St. Joseph Superior Court judges are nominated to the bench by a committee of lawyers and citizens. Daniels makes the final choice. Voters then decide whether to retain those judges every six years.

Fry's House Enrolled Act 1491 would have moved their selection to nonpartisan elections, with a $10,000 fundraising limit.

The measure gained tremendous support from the House, passing 88 to 3, with all St. Joseph County representatives consenting. In the Senate, the vote was 35 to 15. From St. Joseph County, only state Sen. John Broden dissented.

"It's unfortunate that the governor chose to disregard the will of the legislature, and that is clearly his prerogative," said St. Joseph County Prosecutor Michael Dvorak, a supporter of the bill.

But Fry, the bill's author, said a veto override is still possible.

"It's not over till it's over," Fry said. "We'll see if the Senate Republicans have the stomach to override their own governor."

A simple majority of both houses — 51 in the House and 26 in the Senate — is needed to override the veto.

Whether an override vote will happen is up to the leadership of each chamber. Senate President Pro-Tem David Long, R-Fort Wayne, and House Speaker B. Patrick Bauer, D-South Bend, could not be reached by press time.

But regardless, opponents of the measure said Wednesday's veto was a good move by Daniels.

They worry that elections would expose judges to political pressures and influence from campaign contributors, who in many cases could be attorneys appearing before them in court.

They also point to a provision of the bill that would have added three judges to Indiana's appeals court. Doing so was estimated to cost upward of $2 million at a time when state revenues are declining and spending is being cut — another reason Daniels cited for his veto.

The Indiana State Bar Association cited that expense in a meeting with Daniels' staff after the bill's final passage, urging him to veto, said Bill Jonas, president of the organization and a South Bend attorney.

Here is Patrick Guinane's story in the NWI Times:
For once, Lake County won’t be the odd duck.

Gov. Mitch Daniels closed the books Wednesday on the spring legislative session, signing into law a final batch of 23 bills while vetoing an attempt to end judicial merit selection in St. Joseph County.

The Republican governor nixed House Bill 1491, which have would made Lake the only Indiana county that does not elect a majority of its judges. The measure paired House Democrats’ desire to end judicial appointments in St. Joseph County with a Senate Republican push to give Daniels three new appellate court appointments.

“The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded,” Daniels said in a statement.

“The addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today’s challenging fiscal environment,” Daniels continued. “Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone.”

The legislation had called for the new Court of Appeals panel to be created in July 2011, meaning the expansion would not have required an appropriation in the next state budget.

Meanwhile, judicial merit selection was pitched as a potential model for the state when it was introduced in the 1970s. But House Speaker, D-South Bend, decried it as a Republican effort to sap power from Democratic strongholds.

In Lake and St. Joseph counties judicial candidates are vetted by a panel of lawyers and lay people, appointed by the governor and face voters every six years in nonpartisan retention elections. Judges there say the system helps insulate them from politics.

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

For publication opinions today (2):

In City of Gary v. Majestic Star Casino, an 18-page decision including 3 opinions, Judge Brown writes:

In this interlocutory appeal, the City of Gary appeals an order denying the City's motion to transfer venue and an order denying the City's motion for a preliminary injunction to compel Majestic Star Casino, LLC (“Majestic Star I”) and the Majestic Star Casino II, Inc. (“Majestic Star II”) (collectively “Majestic Star”) to make payments from adjusted gross receipts to the City. The City raises two issues, which we revise and restate as:

I. Whether the trial court erred by denying the City's motion for change of venue from Marion County to Lake County where the Indiana Gaming Commission (the “Commission”) was named as a defendant in the declaratory judgment action; and

II. Whether the trial court abused its discretion by denying the City's motion for a preliminary injunction.

We affirm. * * *

I. The first issue is whether the trial court erred by denying the City's motion for change of venue. * * *

Strictly construing Ind. Appellate Rule 14(A), we lack authority to exercise our appellate jurisdiction and we are unable to consider the merits of the City's arguments regarding venue. * * *

II. The next issue is whether the trial court abused its discretion by denying the City's motion for a preliminary injunction. The grant or denial of a request for a preliminary injunction rests within the sound discretion of the trial court, and our review is limited to whether there was a clear abuse of that discretion. * * *

Generally, to obtain a preliminary injunction, the moving party has the burden of showing by a preponderance of the evidence that: (1) the movant's remedies at law were inadequate, thus causing irreparable harm pending resolution of the substantive action; (2) it had at least a reasonable likelihood of success at trial by establishing a prima facie case; (3) its threatened injury outweighed the potential harm to appellant resulting from the granting of an injunction; and (4) the public interest would not be disserved. * * *

We cannot say that Majestic Star's actions are clearly against the public interest. The City's alleged damages are merely speculative. Other options, such as issuing bonds, exist for the City instead of cutting essential services. Majestic Star's actions of making payments to a segregated, interest-bearing account rather than directly to the City during the pendency of this action are not “clearly” against the public interest. Thus, we conclude that the rule pronounced in Rees is not applicable. * * *

In summary, we conclude that we lack authority to exercise our appellate jurisdiction in considering the merits of the City's arguments regarding venue. We also conclude that the trial court did not abuse its discretion by denying the City's motion for preliminary injunction because the City has an adequate alternate remedy.

For the foregoing reasons, we dismiss the appeal from the order denying the City's motion for change of venue and affirm the trial court's denial of the City's motion for a preliminary injunction. Dismissed in part, and affirmed in part.

BRADFORD, J. concurring in part and concurring in result with separate opinion
CRONE, J. concurring in part and concurring in result in part with separate opinion

[Bradford] I fully concur in the result and concur with Judge Brown as to Issue I. As to Issue II, I agree with Judge Crone to the extent the arbitration clause provides the City an alternate remedy at law and therefore conclude the trial court did not abuse its discretion in denying the City's request for a preliminary injunction. That being the case, I do not believe it is necessary to address the parties' arguments further.

[Crone] I fully concur with respect to issue I. As for issue II, I agree with the majority's conclusion that the trial court did not abuse its discretion in denying the City's motion for a preliminary injunction, but I respectfully disagree with its rationale in several respects.

In Randall Perkins v. Jayco, an 8-page opinion, Judge Brown writes:
Randall Perkins appeals from an order of the Full Indiana Worker’s Compensation Board (“Board”) denying his application for adjustment of claim. Perkins raises three issues, which we consolidate and restate as whether the Board erred when it denied his application for adjustment of claim. We remand. * * *

The issue is whether the Board erred when it denied Perkins’s application for adjustment of claim. The Board, as the trier of fact, has a duty to issue findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision. * * *

In the present case, the Board found that Perkins was at maximum medical improvement. Under Ind. Code § 22-3-3-4 and longstanding case law interpreting that provision, the Board could have awarded Perkins certain palliative care upon a finding that palliative care would reduce his pain and limit the extent of his impairment. Although Perkins argued that there was need for palliative care in his brief to the Board and submitted evidence that palliative care would reduce his pain so that he could work with restrictions, the Board made no findings on this issue. The Board has a duty to issue findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision. Triplett, 893 N.E.2d at 1116. Accordingly, we remand to the Board with instructions that it consider the arguments and any evidence relating to the issue of palliative care and enter findings and conclusions thereon.

NFP civil opinions today (5):

In Estate of Georgia A. Gourley; Pamela Trickey v. Sherra Wilson and Michael Gourley (NFP), a 5-page opinion, Judge May writes:

Pamela Trickey appeals an order that stock owned by her mother be distributed under the laws of intestate succession rather than pursuant to the residuary clause in her mother's probated will. We reverse. * * *

Indiana Appellate Rule 46(A)(8)(a) and 46(B) require parties on appeal to support each contention in their arguments with cogent reasoning and citations to legal authorities, statutes, and the record. Wilson has not provided the requisite cogent reasoning on her claim the bequest of the stock lapsed; we therefore cannot find it should have been distributed pursuant to the laws of intestate succession. We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood. Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied 855 N.E.2d 995 (Ind. 2006). Failure to put forth a cogent argument acts as a waiver on appeal, id., and is equivalent to a failure to file a brief. Bright v. Kuehl, 650 N.E.2d 311, 317 (Ind. Ct. App. 1995). We therefore cannot find the bequest was properly subjected to intestate distribution on the ground it had lapsed.

The stock at issue should have been distributed pursuant to the residuary clause in Georgia's probated will. We accordingly reverse the probate court's Order for Distribution of Stock and direct the stock be distributed in equal shares to Wilson, Trickey, and Trickey's two children as provided in Georgia's will. Reversed and remanded.

[ILB note - See the devastating footnotes on p.4.]

In Bruce Frey v. Mr. Roof Indianapolis, LLC (NFP), a 7-page opinion, Judge Robb writes:
Bruce Frey appeals the trial court’s order granting Mr. Roof Indianapolis, LLC’s (“Mr. Roof”) Motion to Dismiss for Lack of Subject Matter Jurisdiction. On appeal, Frey raises two issues, one of which is dispositive. We restate that issue as whether the trial court properly determined that it lacked subject matter jurisdiction because the parties were contractually obligated to arbitrate the claims brought by Frey. Concluding that the trial court does have subject matter jurisdiction because the parties are not required to participate in arbitration, we reverse and remand.

[ILB note - see footnote on p. 6]

L & W Outdoor Advertising and Laurence Weaver v. Douglas Lawson (NFP) - "L & W Outdoor Advertising and its president, Laurence Weaver, (collectively “L & W”), appeal the judgment that its lease agreement with Douglas Lawson expired on June 7, 2008. We affirm."

Term. of the Parent-Child Rel. of K.S.T., K.M.P.T., and K.K.T.; R.T. v. Madison Co. Dept. of Child Svcs. (NFP)

Aaron Isby v. Alan Finnan, Supt. (NFP)

NFP criminal opinions today (11):

Gary Vanvleet v. State of Indiana (NFP)

Damon B. Catt v. State of Indiana (NFP)

William O'Brien v. State of Indiana (NFP)

Antwuan Davis v. State of Indiana (NFP)

Dale E. Moore v. State of Indiana (NFP)

Dontae L. Davis v. State of Indiana (NFP)

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

Justin Juregeson v. State of Indiana (NFP)

Murial A. Pitt v. State of Indiana (NFP)

Demietrius Masterson v. State of Indiana (NFP)

Dusty Kidd v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 14, 2009
Posted to Ind. App.Ct. Decisions

Wednesday, May 13, 2009

Ind. Courts - Supreme Court issues a second opinion today

In Maggie Bush and Leonard Bush v. State Farm Mutual Automobile Ins. Co., a 7-page, 5-0 opinion, Justice Boehm writes:

We hold that an uninsured motorist policy restricting coverage to bodily injury or death sustained by an insured does not violate Indiana’s uninsured motorist statute. * * *

Finally, although this issue is one of first impression in Indiana, our conclusion is consistent with the substantial majority of other states that have addressed the issue under their uninsured motorist statutes. Fifteen states have interpreted their statutes to require that injury be sustained by an insured. Seven states have interpreted their statutes as requiring compensation for injuries sustained by third parties, but in at least four of these, the legislature subsequently amended the statute to require that the injury be sustained by an insured. In short, the clear weight of authority from other jurisdictions supports our conclusion that Indiana’s uninsured motorist statute requires coverage only for bodily injuries sustained by an insured.

Apart from the problem that they did not suffer “bodily injury,” the Bushes have no uninsured motorist coverage for Leonard’s death because, in their individual capacities, they are not persons “legally entitled to recover damages” for Leonard’s death. At common law, there was no tort liability for wrongful death because personal injury actions did not survive the injured party’s death. Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1138 (Ind. 2002). As a result, wrongful death actions are purely statutory. Id. In Indiana, claims for the death of a person must be brought under either the Child Wrongful Death Act, the Adult Wrongful Death Act, or the general Wrongful Death Act. See id. Leonard was an unmarried childless adult, and therefore his death is governed by the Adult Wrongful Death Act. I.C. § 34-23-1-2(a). A claim under that statute may be asserted only by the decedent’s estate. Id. § 34-23-1-2(b). This is no mere technicality. If the claim is asserted under the Adult Wrongful Death Act, some proceeds are subjected to creditors of the decedent’s estate, and aggregate damages for loss of love and companionship are capped at $300,000. Id. § 34-23-1-2(d), (e).

Conclusion. The trial court’s grant of summary judgment is affirmed.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Governor acts on HEA 1491 - St. Joseph Superior Court Judges; 6th COA panel [Updated]

Governor Daniels this afternoon has acted to veto HEA 1491. Here is the Governor's veto message:

The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County.

The addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today’s challenging fiscal environment. Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone.

Here are some earlier ILB entries on HEA 1491.

The other bills remaining on the list were signed today. See the complete list here.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Indiana Courts | Indiana Law

Ind. Decisions - Supreme Court issues one this afternoon

In Estate of Margaret H. Prickett, Deceased v. Marilyn Prickett Womersley, a 10-page, 5-0 opinion, Justice Sullivan writes:

A woman seeks compensation for the value of her services while caring for her mother when the mother was subject to a guardianship. Indiana law presumes that services by a family member are rendered gratuitously. In this case, the presumption cannot be rebutted by evidence that the mother wanted her daughter to be compensated because the mother was under a guar- dianship and the guardian did not consent. * * *

The evidence Womersley designated does not as a matter of law rebut the presumption that she gratuitously served her mother. We reverse the trial court‟s denial of summary judgment and remand for proceedings consistent with this opinion.

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

Rucker, J., concurs in result without separate opinion.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "Cancer Patients Challenge the Patenting of a Gene"

That is the headline to a fascinating, and lengthy, story today in the NY Times by John Schwartz. Some quotes:

When Genae Girard received a diagnosis of breast cancer in 2006, she knew she would be facing medical challenges and high expenses. But she did not expect to run into patent problems.

Ms. Girard took a genetic test to see if her genes also put her at increased risk for ovarian cancer, which might require the removal of her ovaries. The test came back positive, so she wanted a second opinion from another test. But there can be no second opinion. A decision by the government more than 10 years ago allowed a single company, Myriad Genetics, to own the patent on two genes that are closely associated with increased risk for breast cancer and ovarian cancer, and on the testing that measures that risk.

On Tuesday, Ms. Girard, 39, who lives in the Austin, Tex., area, filed a lawsuit against Myriad and the Patent Office, challenging the decision to grant a patent on a gene to Myriad and companies like it. She was joined by four other cancer patients, by professional organizations of pathologists with more than 100,000 members and by several individual pathologists and genetic researchers.

The lawsuit, believed to be the first of its kind, was organized by the American Civil Liberties Union and filed in federal court in New York. It blends patent law, medical science, breast cancer activism and an unusual civil liberties argument in ways that could make it a landmark case. * * *

Dr. Chung and others involved with the suit do not accuse Myriad of being a poor steward of the information concerning the two genes at issue in the suit, known as BRCA1 and BRCA2, but they argue that BRCA testing would improve if market forces were allowed to work.

Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said that many laboratories could perform the BRCA tests faster than Myriad, and for less money than the more than $3,000 the company charged.

Laboratories like his, he said, could focus on the mysteries still unsolved in gene variants. But if he tried to offer such services today, he said, he would be risking a patent infringement lawsuit from Myriad.

Christopher A. Hansen, senior national staff counsel for the civil liberties union, said the problem was with the patent office, not the company. He recalled that when he first heard that the office had granted a patent for a gene, “I said that can’t be true.”

As the A.C.L.U. explored the restrictions on competition that companies like Myriad had put in place — blocking alternatives to the patented tests, and even the practice of interpreting or comparing gene sequences that involved those genes — the restrictions started to look like not just a question of patent law, Mr. Hansen said, but of the First Amendment’s guarantee of free speech as well.

“What they have really patented,” he said, “is knowledge.”

A patent was also granted to a single company for genetic testing on long QT syndrome, which can lead to heart arrhythmias and sudden death, and to the HFE gene, linked to hereditary hemochromatosis, a condition in which iron accumulates in the blood and can cause organ damage. Doctors and scientists have complained about both patents.

On the other hand, the company that owns the patent to the gene CFTR, which has been linked to cystic fibrosis, has licensed the testing to dozens of laboratories, drawing praise from the medical world. * * *

For Lisbeth Ceriani, a single mother from Newton, Mass., and a plaintiff in the case against Myriad, the biggest obstacle that gene patents present is one of cost. She has had breast cancer and a double mastectomy, but wants to have BRCA testing to determine her risk of ovarian cancer and help her decide whether to have her ovaries removed. But Myriad has refused to work with her insurance plan, Mass Health, and paying for the test herself is beyond her means.

She is reluctant to have surgery that might prove unnecessary, she said, but she also worries about her 8-year-old daughter and the inherited risk she might face. Which is why, Ms. Ceriani said, she wants to “find out if I have the mutation, so I can take the necessary steps to stay on the planet.”

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Courts in general

Law - "Student Loan Bailout: The Choice of a New Generation"

The ILB has had a number of entries about student loans, including the impact of the 2005 bankruptcy law amendments, which eliminated the possibility of relief in bankruptcy for student loans in nearly all cases. See this June 10, 2007 entry, which quotes Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers: “When a student signs the paper for these loans, they are basically signing an indenture,” Mr. Nassirian said. “We’re indebting these kids for life."

This entry from July 30, 2007 contains quotes including "Many a student comes out of college only to discover that his loan has become a noose around his neck" and this one, quoting Joe Nocera of the NYT, writing about Sallie Mae:

“Sallie revolutionized the industry,” says Representative Miller, and he doesn’t mean that as a compliment. It imposed fees and penalties that added costs when students were already having trouble repaying loans — while increasing Sallie’s profits. It bought its own collection agency. It lobbied to make it nearly impossible for borrowers to escape their student debt. (It was aided along the way by occasional reports of the wealthy reneging on their student debt, thus saddling the taxpayer with the bill.) * * *

But in our obsession with the market, we had forgotten that this stock’s performance resulted in no small part from Sallie Mae — like many of its competitors — making money on the backs of struggling college graduates. It was a little like the credit card business: the “best” customers aren’t the ones who pay off their monthly charges on time; they’re the ones who can’t. For the student loan industry, the best customers are the students who take on more debt than they can handle to get through school. What’s been lost is the idea that student loans are a service with benefits that transcend the financial.

Today Elie Mystal writes in a long entry in Above the Law:
A couple of months ago, it occurred to me that if the government didn't start tackling the student loan issue, people would simply stop paying off their loans. According to USAToday, that is precisely what is starting to happen.

Just to be clear, if you are a financial idiot and you rack up thousands of dollars in credit card debt on flat screens and rims, you can get that wiped out in bankruptcy. But if you take out loans to pay for your education, and you can't get a job because the economy has stopped, the debt will follow you to the grave.

More horror stories that the baby boomers don't want us to talk about ....

The ATL post quotes from this USA Today story by Christine Dugas. Read them together.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In State of Indiana v. Sampson Boadi , a 12-page opinion, Judge Vaidik writes:

Sampson Boadi was charged with several counts of criminal recklessness, including reckless homicide, as a result of an automobile collision that occurred when Boadi, driving a semi tractor-trailer, failed to stop at a red light. At the conclusion of the State's case-in-chief during Boadi's jury trial, the trial court granted Boadi's motion for a directed verdict on all counts on the ground that the recklessness element was not supported by sufficient evidence. Concluding that the trial court properly granted Boadi's motion because the State failed to introduce evidence of more than inadvertence or an error of judgment regarding Boadi's failure to stop at the red light, we affirm Boadi's acquittal. * * *

On appeal, the State argues that the trial court erred by granting a directed verdict acquitting Boadi of all the charges because a jury could have found from the evidence presented that Boadi's conduct was reckless. The State brings this appeal pursuant to Indiana Code § 35-38-4-2(4), whereby the State may appeal a question reserved by the State if the defendant is acquitted. However, the State is barred by the prohibition against double jeopardy from retrying the defendant after acquittal. State v. Martin, 885 N.E.2d 18, 19 (Ind. Ct. App. 2008). Although the issue in this case is now moot, we hope to provide guidance for future cases. * * *

In support of its argument that Boadi's conduct was reckless, the State relies on evidence provided by the State's accident reconstruction experts that Boadi had sufficient time to stop the vehicle before the light turned red but failed to do so, evidence that Boadi did not sound his horn before entering the intersection, and evidence that Boadi did not make an effort to stop the truck before entering the intersection. * * * We must now determine, as a matter of law, whether Boadi's failure to stop in time was evidence of recklessness sufficient to withstand a motion for directed verdict.

The parties have not directed us to, and we have not unearthed, a criminal case addressing whether the failure to stop at a red light, without more, can constitute evidence of recklessness sufficient to establish a prima facie case. However, in a civil action under the Automobile Guest Act, our Court held that failing to look to both sides and stop at an intersection could not constitute willful or wanton misconduct and affirmed the directed verdict in favor of the driver. * * *

We conclude that the rule provided in Becker should apply in the criminal context as well. This Court has previously found that a rule announced in actions under the Automobile Guest Act should apply in criminal cases as well because of the similarity in definition between “recklessness” in the criminal context and “wanton or willful misconduct” in the civil context. * * * Thus, we conclude that, pursuant to the rule in Becker, failing to stop at an intersection cannot, without more, constitute criminally reckless conduct. * * *

We are persuaded that the failure to stop at a red light due to inadvertence or an error of judgment, without more, does not constitute recklessness as a matter of law. Although the failure to stop at a red light or stop sign is a violation of the traffic code, we cannot say that, without additional circumstances, the failure to stop at a light is a substantial departure from the acceptable standards of conduct sufficient to serve as evidence of recklessness. * * *

Viewed in the light most favorable to the State, there is no evidence of additional circumstances sufficient to satisfy the recklessness element of the charges against Boadi. Boadi did not accelerate toward the light; indeed, Boadi traveled through the intersection at a speed below the speed limit. There is no evidence that Boadi was driving erratically or under the influence of alcohol or drugs. There is no evidence that Boadi was fatigued or in any way failing to comply with trucking regulations. Boadi stopped immediately after the accident and did not flee. In sum, the evidence as a whole viewed in the light most favorable to the State shows that Boadi did not stop but instead proceeded through the intersection as the light turned green for the opposing traffic. Although this conduct might be evidence of inadvertence or an error in judgment, that is, negligence, such an error does not constitute criminal recklessness. Additionally, our conclusion is consistent with Indiana's public policy that “automobile accident deaths caused by negligence, even gross negligence, fall outside the realm of criminal prosecution[.]” Id. * * *

In conclusion, the trial court did not err by acquitting Boadi as a matter of law due to a complete lack of evidence on the recklessness element of the crimes charged. Affirmed.

NFP civil opinions today (2):

John D. Michael v. Kathy M. Michael (NFP) - "Without reweighing the evidence or assessing witness credibility, we necessarily find that the testimony supports the conclusion that the marital estate did not include a loan or gift of $10,000 from Husband’s mother. Therefore, Husband’s argument must fail. "

Term. of the Parent-Child Rel. of D.D., et al; D.D. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (10):

Corey Lee Perkins v. State of Indiana (NFP)

Donte T. Gibson v. State of Indiana (NFP)

Tony Johnson v. State of Indiana (NFP)

Steven L. Clair v. State of Indiana (NFP)

Claude Hoskins v. State of Indiana (NFP)

Curtis W. Craft v. State of Indiana (NFP)

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

Shakima Lewis v. State of Indiana (NFP)

Russell Lewis v. State of Indiana (NFP)

Jeffrey W. Wagner v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Ind. App.Ct. Decisions

Environment - More on "Former coal lobbyist tapped for key enforcement role at IDEM"

Updating this ILB entry from May 10th, that quoted from a Gary Post-Tribune story which was later syndicated across the state, the Indianapolis Star has this editorial today -- some quotes:

IDEM's new assistant commissioner for the Office of Legal Counsel, in charge of riding herd on the state's worst polluters, is a former lobbyist and lawyer for the coal industry with a long history of fighting IDEM and the Department of Natural Resources over environmental enforcement.

David Joest has vast experience and knowledge of the coal industry, an IDEM spokesman says -- at the same time acknowledging that IDEM's mission covers much more than that. Joest, the spokesman adds, would recuse himself from any case posing possible conflict and is unlikely to personally handle cases anyway.

He was "openly hostile to reforms to protect the environment," says a prominent green activist who tangled with him when Joest worked for Peabody Coal Co.

Skepticism is to be expected. Even if Joest is bestowed with full benefit of the doubt, the bottom line is that he's been good at the job of protecting his (erstwhile) employer's bottom line, not at protecting the environment from the potential excesses of that company. Now, with two Peabody mines in the offing in Indiana, he will be asked to reverse roles.

Confidence in this arrangement might be remotely attainable if the Daniels administration had a commendable record of environmental stewardship. Instead, we've seen a series of questionable actions and inactions by IDEM while Indiana has languished near the bottom of the nation in air, water and soil quality.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Environment

Law - "Dead Law Firm Web Sites Haunt the Web" [Updated]

You have to love the headline, kind of like "Ghost ships haunting the seas ...".

Here is the story, from Brian Baxter of The American Lawyer. Interesting reading. About one firm the author writes:

If there's one silver lining to Thelen's ill-fated merger with New York's Brown Raysman Millstein Felder & Steiner in 2006, it's the 51-page attorney referral list for all the firm's former lawyers. Maybe this should be mandated for all dissolutions.
The only "dead firm" I can think of in Indianapolis is Johnson Smith LLC, which closed May 31, 2001 -- I've checked and there is no remaining web site.

[Updated] A reader writes:

Actually another "dead" Indianapolis law firm is Henderson Daily Withrow & DeVoe, where I used to be a partner. It bit the dust in 2004. The website was www.hdlegal.com. I'm pretty sure that web site is longer around either.
Correct, the URL returns an "Address not found."

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to General Law Related

Environment - "Federal authorities are investigating the Lake County Health Department, probing allegations that employees there were falsifying drinking water tests"

That from this story in the NWI Times today by Christine Kraly.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Environment

Ind. Law - "New law allows more women to get timely cancer screening," which is an essential prrequisite for participation in the BCCP

Updating this ILB entry from Feb. 23rd, and this one from Sept. 14, 2007 (headed "Loophole Allows States To Avoid Covering Breast, Cervical Cancer Treatments for Some Uninsured Women") In the 2007 entry I wrote:

The Wall Street Journal lists 21 states "where uninsured women with breast or cervical cancer are denied Medicaid coverage if they wern't diagnosed at the right clinic. The list includes Indiana.
Today the NWI Times reports:
More women will be able to get necessary screening for breast and cervical cancer under a measure signed into law by Indiana Gov. Mitch Daniels.

Senate Enrolled Act 554 requires Indiana's Breast and Cervical Cancer Program (BCCP) to submit a waiver to the federal government that, if approved, would make Indiana's BCCP less restrictive by allowing women to be screened by any provider for breast or cervical cancer. If cancer is diagnosed and patients meet income guidelines and other BCCP requirements, they would be allowed to enroll in Medicaid for treatment.

Previously, women could only receive treatment through Medicaid under the BCCP if they were screened by a participating BCCP provider.

The BCCP serves uninsured and underinsured low-income women who meet federal eligibility requirements and are between the ages of 40 and 64. The program provides free Pap tests, pelvic exams, clinical breast exams and mammograms. If cancer is found during routine screenings, subsequent treatment is covered under Medicaid.

Prior to Gov. Daniels signing the new measure, the BCCP only was able to screen 10 percent of the total women eligible for the program, in part, because not all Indiana counties have participating BCCP programs and limited funding.

A Note: I can attest to the importance of this bill. I received chemotherapy in a clinic associated with the downtown Methodist Hospital and learned from the dedicated nursing staff of many patients who were unable to deal with their enormous medical bills and the efforts the staff made to find help for them. I expect that a number of these women would have been eligible for the BCCP, except that they had been diagnosed in the wrong clinic.

Kudos to Senator Becker for initiating this bill, to second author Senator Delph, and to the long list of Senators and Representatives who signed on as co-authors.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Indiana Law

Ind. Decisions - More on "Liberty Landowners appeal court ruling on new hospital"

Updating this ILB entry from May 8th, Bob Kasarda of the NWI Tmes reports today:

A group of Liberty Township landowners is appealing a court decision that dismissed its challenge of a rezoning for the construction of a new Porter hospital at the northwest corner of Ind. 49 and U.S. 6.

Attorney James Sarkisian, acting as judge pro tem for Porter Circuit Court Judge Mary Harper, ruled early last month the Liberty Landowners Association Inc. lacks standing to bring a lawsuit because it owns no real estate near the site and won't suffer if a hospital is built there.

Association attorney Martin Lucas said he will argue the landowners association has public standing because of the public interest involved.

In making that case, Lucas said he will argue the rezoning was granted in violation of the county's unified development ordinance, which prohibits institutions from being built alongside residential areas.

Lucas also will argue the hospital received special treatment from the county that would not have been granted to an average citizen.

Porter County attorney Gwenn Rinkenberger said the county will aggressively fight the appeal.

While she felt the ruling in question was pretty clear cut, she said the appeal could create a needless delay in the construction of a new hospital. If the landowners win their appeal, their case would go back to the local courts, where the group would get the chance to argue its original complaint. * * *

Rinkenberger said she would urge the hospital not to allow the appeal to delay the construction project on the 105-acre site in question.

It then would be up to the landowners association to seek a restraining order to stop the work, which would require the ability to post a bond and a stronger case than she believes the group is offering.

"I'm thinking, 'If I'm the hospital, it's time to get aggressive with this,' " Rinkenberger said. "It would support them."

Lucas said his clients don't have the resources or interest to stop any construction work that may begin. The group is not against the hospital, he said.

The issue here is that the county BZA should have followed the rules, he said.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Ind. Trial Ct. Decisions

Courts - More on: NY high court rules police need warrants for GPS trackers

There has been some interest from readers in this ILB report yesterday. As a result, the ILB has located a copy of the NY high court's decision in the case of The People v. Scott C. Weaver.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Courts in general

Ind. Courts - Arguments before full 7th Circuit in mezuzah case may put Judge Wood and Williams in spotlight

Mike Robinson of the AP has this story today in the Washington Post. The long story begins:

CHICAGO -- When a federal appeals court meets in Chicago to take up a bitter dispute over alleged religious discrimination by a condo association the judges themselves could end up as the main attraction.

President Barack Obama is weighing possible candidates to fill the U.S. Supreme Court seat of retiring Justice David Souter and two members of the 7th U.S. Circuit Court of Appeals are considered possible picks.

Judge Diane P. Wood, 58, a former University of Chicago law professor like Obama, is getting the biggest share of the spotlight. And Wednesday's hearing focuses on a case in which she wrote a dissenting opinion.

Judge Ann Claire Williams, 59, a former federal prosecutor, is also getting some attention as a possible Supreme Court nominee.

Oral arguments before the full appeals court are set for Wednesday in what has come to be known as "the mezuzah case."

A mezuzah is part of Jewish religious tradition _ a small scroll held in a metal, plastic or glass case a householder affixes to the door frame.

In the case before the court, the Shoreline Towers Condominium Association repeatedly removed a mezuzah from the front door of Chicago condo owner Lynne Bloch. The association said it violated a rule against placing any objects, religious or otherwise, on doors or in common halls.

Bloch, who helped write the rule, sued, saying she was a victim of religious discrimination. U.S. District Judge George W. Lindberg threw out the case and the appeals court affirmed his decision 2-1.

Chief Judge Frank Easterbrook, writing for himself and Senior Judge William Bauer, said the rule was "neutral" and "potentially affects every owner" without regard to religion and thus was not discriminatory.

"It bans photos of family vacations, political placards, for-sale notices and Chicago Bears pennants," he wrote.

Wood dissented, saying it could been seen as a violation of federal housing law because observant Jews would be unable to live in a condo with no mezuzah.

"Thus in a real sense, Hallway Rule 1 makes condominium units at Shoreline Towers functionally unavailable to observant Jews like the Blochs and, if it could be enforced, the rule would effect their constructive eviction," Wood wrote.

Here is the July 10, 2008 ruling of the panel (Easterbrook, Bauer and Wood) in the case of Block v. Shoreline Towers.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Indiana Courts

Environment - More on "New Indiana regulations aim to protect Ohio River paddlefish"

On Sept. 19, 2007 the ILB posted an entry, quoting an AP story, that reported that DNR had approved "emergency rules that include limits on catching paddlefish from Nov. 15 to April 15 and a minimum size of 34 inches from eye to tail fork." The story said the emergency rules were valid for one year and renewable for another year.

Yesterday in the Indianapolis Star Tim Evans had a lengthy front-page story on the American paddlefish. From the story:

The American paddlefish is a survivor that predates even the dinosaurs.

This spatula-snouted behemoth -- yes, it's as ugly as it sounds -- has withstood damming, redirection of river channels, sediment buildups and decades of pollution from agriculture and industry.

But now an increasingly menacing man-made force threatens the paddlefish in Indiana: the economy.

The economic downturn, combined with a shortage of imported caviar, has increased demand for its buttery-flavored and potentially lucrative roe, leading to concerns about overfishing and illegal harvests.

That has prompted state officials to propose permanent restrictions on when and how paddlefish can be taken from the Ohio River, the only place in Indiana where they can be legally caught.

"We saw there was an opportunity for over-harvesting, driven by the caviar trade, that might push the population of paddlefish to an extremely low level that they might not be able to recover from," said Bill James, chief of fisheries with the Indiana Department of Natural Resources.

"Our goal is to have a self-sustaining population that provides some commercial fishing opportunities."

The state's little-known role in the domestic caviar industry first gained widespread attention in 2007, when an 18-month investigation by Indiana and federal officials led to the arrests of 22 people on more than 300 charges related to the illegal harvest of paddlefish from the Ohio River and tributaries where they often move to spawn.

Dubbed "Operation Skid Roe," the probe broke up an illegal poaching operation, officials said. One adult female can provide $600 to $1,000 in eggs, and officials said some fishermen involved in the scheme earned more than $100,000 a year.

In response to the investigation, Indiana officials instituted temporary rules to protect the fish. Now, the Indiana Natural Resources Commission is moving to make those regulations permanent as part of a coordinated effort with officials in Kentucky and Illinois, who also oversee fishing on portions of the Ohio River.

The proposed rules:

» Designate Nov. 1 to April 30 the commercial season for netting paddlefish on the Ohio.
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» Establish a minimum size limit of 32 inches from the eye to tail fork.

» Prescribe a minimally invasive method to check for the presence of eggs without killing the fish, which often don't produce roe until they reach the age of 10 and, even then, don't always spawn annually.

» Prohibit sport fishing for paddlefish, which must be "snagged" because they are filter feeders and can't be caught by traditional hook-and-line methods.

A public hearing on the changes will be held May 20 at Sugar Ridge Fish and Wildlife Area near Winslow.

See the story for more information.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Environment

Ind. Law - More on Governor's veto of SEA 209 voting centers bill

"Daniels vetoes early voting bill sparked by Lake County dispute" is the headline of the story by Patrick Guinane in the NWI Times.Some quotes:

Gov. Mitch Daniels signed legislation late Monday allowing Hoosiers to register to vote online, but he vetoed another measure that could have made it easier to vote early.

The Republican governor axed Senate Bill 209, which would have let county election boards establish multiple early voting sites by a majority vote, instead of a unanimous decision. The measure was intended to put to rest a partisan Lake County spat that trudged through a half-dozen courts last fall. * * *

One in six Hoosier voters cast ballots prior to Election Day last November, with Lake and Porter counties tallying more than 53,000 absentee and in-person early votes. Each county must operate one early voting center, but the decision to open additional satellite locations must be unanimous.

The Democratic-controlled Lake County elections board deadlocked 3-2 along party lines last fall, but Democrats still opened auxiliary early voting sites in East Chicago, Gary and Hammond. Republicans protested but could not convince a county, state or federal judge to shudder the sites once voting had started.

State Rep. Vernon Smith, D-Gary, worked on SB 209 in the hope that it would head off future early voting disputes. He said having just one early voting site in Crown Point isn't sufficient for Indiana's second most populous county.

"I was trying to correct that situation because I don't think it should be a partisan situation," Smith said. "We should not make it difficult for people to vote. We should make it convenient for people to vote."

Meanwhile, Daniels signed into law House Bill 1346, which authorizes Secretary of State Todd Rokita to begin offering online voter registration in July 2010.

Niki Kelly writes in the Fort Wayne Journal Gazette under the headline "Daniels vetoes satellite voting." Some quotes:
[Daniels vetoed] Senate Bill 209, an election bill that contained numerous sections relating to casting provisional ballots, satellite voting and the creation of vote centers. The final version cleared the Senate 48-0, but the vote in the House was divisive at 55-43.

Daniels said though the bill contains provisions to make voting more convenient, “it does not contain sufficient safeguards against fraud and abuse and removes long-standing bipartisan checks and balances in the conduct of elections.”

Daniels’ office would not specify which portions of the bill were problematic.

Secretary of State Todd Rokita, who is Indiana’s chief election official, expressed displeasure in the governor’s veto.

“How ironic it is that the one local government reform that actually passes the legislature ends up getting vetoed,” Rokita said in a written statement. “Vote Centers is perhaps the only local government reform that so far has been proven unequivocally to save taxpayers money.

“I would expect, given the serious fiscal condition of the state, that the concept is important enough to find its way into the budget bill so that all 92 counties be given the opportunity to realize the unquestionable taxpayer benefits and savings." * * *

Among the bills that the governor signed into law was House Bill 1346, which allows people with valid driver’s licenses or state identification to file voter registration forms using the Internet.

Currently, Hoosiers can download registration applications online, but they must print and mail the forms.

Deanna Martin reports for the AP:
Gov. Mitch Daniels signed a bill Monday that will allow online voter registration but vetoed another that would expand the use of centralized vote centers.

The election bill Daniels signed will let people with valid driver's licenses or state identification file voter registration forms over the Internet. Citizens have been able to download registration applications online but had to print and mail the forms. * * *

But he vetoed a second election bill, writing in his veto message:

"While this bill contains provisions that would make the act of voting more convenient, it does not contain sufficient safeguards against fraud and abuse and removes long-standing bipartisan checks and balances in the conduct of elections."

Daniels' office said the Republican governor had no further comment about the bill, which contained many provisions affecting different parts of the state.

It would have allowed vote centers in Johnson County, which lost more than 400 voting machines in June flooding. Officials there had hoped to save $2 million by joining Cass, Wayne and Tippecanoe counties as vote center areas, where residents cast ballots at centralized locations instead of individual precincts.

The bill also would have required election officials to tell people casting provisional ballots the steps they must take to have the ballot counted. Supporters said that measure was important because voters who cast provisional ballots often don't know what to do next.

Secretary of State Todd Rokita, the state's chief election officer, said candidates and county political party chairmen could find out the names and addresses of people who cast provisional ballots. He had concerns about that measure, saying candidates would hound voters days after the election, but had fought for the vote center legislation.

Rokita wants all counties to be able to use vote centers if they choose, and suggested that lawmakers could take up the issue as they meet in a special session in June to approve a budget.
(2 of 2)

"I would expect, given the serious fiscal condition of the state, that the concept is important enough to find its way into the budget bill so that all 92 counties be given the opportunity to realize the unquestionable taxpayer benefits and savings," Rokita said yesterday.
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The vetoed bill also would have changed state law about satellite vote centers, where people can cast absentee ballots in person before an election. Current law requires county election boards to unanimously approve satellite voting spots, but the bill would have only required a majority of the board.

Satellite voting became an issue last fall in Lake County, where Republicans fought to close three early voting locations saying the Democrat-controlled election board had approved them in violation of state law. A special judge and the Indiana Court of Appeals said the centers could remain open.

Daniels also vetoed a bill Monday that would have required the fire prevention and building safety commission to adopt by July 2010 one of two energy conservation codes for new commercial buildings and those undergoing significant modifications.

Daniels said the commission is already working to update the state's energy code.

"While this bill does constitute good policy, it is completely superfluous," Daniels said in his veto message. "The language of the bill would only serve to clutter the existing Indiana Code without adding in any way to our progress in these areas."

But Jesse Kharbanda, executive director of the Hoosier Environmental Council, said the law would have led to codes being adopted faster than if the issue were left to the traditional rule-making process. He said quickly adopting one of the codes would encourage businesses to install energy-efficient heating and cooling systems, windows and other systems.

"There was no guarantee that this would get done quickly if it was left simply to the rule-making process," Kharbanda said. "Our general view is that Indiana is moving at a glacial pace."

"I would expect, given the serious fiscal condition of the state, that the concept is important enough to find its way into the budget bill so that all 92 counties be given the opportunity to realize the unquestionable taxpayer benefits and savings," Rokita said yesterday.
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The vetoed bill also would have changed state law about satellite vote centers, where people can cast absentee ballots in person before an election. Current law requires county election boards to unanimously approve satellite voting spots, but the bill would have only required a majority of the board.

Satellite voting became an issue last fall in Lake County, where Republicans fought to close three early voting locations saying the Democrat-controlled election board had approved them in violation of state law. A special judge and the Indiana Court of Appeals said the centers could remain open.

Posted by Marcia Oddi on Wednesday, May 13, 2009
Posted to Indiana Law

Tuesday, May 12, 2009

Ind. Law - Reactions to Governor's vetos of HEA 1348 and SEA 209 [Updated]

Supplementing this entry from earlier this afternoon, here are reactions to the Governor's two (so far) vetoes:

SEA 209, which dealt with provisional ballots and voting centers. Recall these issues were the subject of much litigation last fall. Democratic election law expert Bill Groth writes in reaction to the Governor's veto message:

This is really infuriating. Even after signing into law the nation’s most restrictive voter ID bill, the Governor thinks we still don’t have enough protections against fraud. That’s just an excuse to veto a bill that broadened access by voters. SB 209 was a carefully crafted bipartisan compromise. I hope the Legislature will override this outrageous and irresponsible veto in the special session or at least on organization day in November.
And from Republican Secretary of State Todd Rokita:
How ironic it is that the one local government reform that actually passes the legislature ends up getting vetoed. Vote Centers is perhaps the only local government reform that so far has been proven unequivocally to save taxpayers money. I would expect, given the serious fiscal condition of the state, that the concept is important enough to find its way into the budget bill so that all 92 counties be given the opportunity to realize the unquestionable taxpayer benefits and savings.
HEA 1348, which dealt with energy conservation codes and standards, received this veto message:
While this bill does constitute good policy, it is completely superfluous. At my direction, the Indiana Fire Prevention and Building Safety Commission began months ago the process of updating the state energy code to promote conservation and environmental protection. Accordingly, the language of the bill would only serve to clutter the existing Indiana Code without adding in any way to our progress in these areas.
The bill’s author, State Rep. Ryan Dvorak (D-South Bend), has sent out a press release indicating that he plans to seek an override of the veto of HEA 1348:
The bill would require Indiana to update its energy efficiency codes for the construction of new commercial buildings. The existing energy efficiency code is nearly two decades old and fails to account for the latest in cost-saving features that are used in other states. “The updated code required by House Enrolled Act 1348 will not only cut energy consumption,” Dvorak said, “but also create jobs in the building trades and reduce overhead costs for Indiana businesses.”

Dvorak responded to the governor’s statement by saying that this bill is necessary when Indiana trails so far behind the rest of the nation in implementing energy conservation standards.

“Gov. Daniels said he has already begun the process of updating the state energy code,” Dvorak added. “However, the Governor’s efforts only began after the Legislature held hearings on Indiana’s lack of progress on the issue. As a result of those hearings, I filed legislation to require the state to act. Indiana has initiated this process in the past, but never followed through with changes. HEA 1348 would ensure that this time Indiana will complete its work by July 1, 2010.

“I am absolutely baffled by Gov. Daniels’ veto,” continued Dvorak. “We worked with his administration to incorporate their suggested changes to the bill’s language and never once did they testify in opposition to the legislation, much less threaten the veto of it. I will seek an override of Gov. Daniels’ veto to ensure these much needed changes finally occur.”

The final version of the bill passed the House by a vote of 91-0 and the Senate by a 47-2 margin.

[Updated on 5/13/09] Deanna Martin reports in her AP story this morning:
Daniels also vetoed a bill Monday that would have required the fire prevention and building safety commission to adopt by July 2010 one of two energy conservation codes for new commercial buildings and those undergoing significant modifications.

Daniels said the commission is already working to update the state's energy code.

"While this bill does constitute good policy, it is completely superfluous," Daniels said in his veto message. "The language of the bill would only serve to clutter the existing Indiana Code without adding in any way to our progress in these areas."

But Jesse Kharbanda, executive director of the Hoosier Environmental Council, said the law would have led to codes being adopted faster than if the issue were left to the traditional rule-making process. He said quickly adopting one of the codes would encourage businesses to install energy-efficient heating and cooling systems, windows and other systems.

"There was no guarantee that this would get done quickly if it was left simply to the rule-making process," Kharbanda said. "Our general view is that Indiana is moving at a glacial pace."

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Indiana Law

Courts - NY high court rules police need warrants for GPS trackers

Michael Virtanen reports for the AP:

ALBANY, N.Y. - New York's top court ruled Tuesday that police cannot place GPS trackers on suspects' vehicles without first getting a court warrant showing probable cause that the drivers are up to no good.

The Court of Appeals split 4-3 on the issue, with the majority saying the tracker that state police planted on Scott Weaver's van for 65 days starting in 2005 violated his constitutional protections against unreasonable searches.

The ruling overturned both the trial court and a midlevel appeals court. Weaver has been free on bail.

"The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy," Chief Judge Jonathan Lippman wrote. * * *

Weaver was convicted of burglary based in part on GPS data that showed him in a suburban Albany department store parking lot before a break-in. He will get a new trial with that information excluded.

Lawyers on both sides said the ruling establishes case law in New York and won't be appealed to the U.S. Supreme Court because the decision was made under the state constitution. Its provision against unreasonable searches and seizures generally mirrors that of the U.S. Constitution.

State courts in Oregon and Washington have rejected police use of GPS without a warrant under their constitutions. Some federal courts have upheld warrantless GPS use.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Courts in general

Ind. Decisions - Morgan County judge asks COA for clarification in sentencing dispute

The complicated story by Keith Rhodes of the Martinsville Reporter-Times begins:

Bradford Drake will have to wait a little longer before he knows if he will be eligible for parole or if he will have to serve out his term in prison.

Morgan County Circuit Court Judge Matthew Hanson has made a request to the Indiana Court of Appeals for clarification of its April 22, 2008, decision that granted Drake a post-conviction relief hearing to determine if his two 30-year consecutive sentences were proper.

The hearing was held May 4 in circuit court.

Since the hearing, the judge has researched case law and found that under state law, a post conviction relief petition was not the proper legal recourse for someone wanting to challenge the sentence that was imposed by an open plea agreement.

In his request, the judge says that under the law, an appeal of the case is the proper way to ask the court to review a court ordered sentence.

The judge is asking the appeals court to determine if the local court should deny the petition and then have Drake file an appeal.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Ind. App.Ct. Decisions

Environment - "Two megadairies get federal wastewater permits: Appeal periods for Liberty Dairy, Union-Go Dairy end later this month"

The story in the Richmond Palladium-Item today, reported by Pam Tharp, begins:

Two area megadairies cleared hurdles last week when the Indiana Department of Environmental Management granted their federal wastewater permits.

Liberty Dairy LLC's National Pollution Discharge Elimination System permit allows the construction of a 2,500-cow dairy in Harrison Township on U.S. 27 North in Union County.

Union-Go Dairy, a 1,650-cow dairy operating in Randolph County, will build new lagoons in the first phase of its expansion.

In phase two, Union-Go will submit a plan to address problems with the existing lagoon, said Barry Sneed, IDEM spokesman. The dairy is approved to add up to 322 cows. Once IDEM approves Union-Go's lagoon plan, construction of freestall barns may begin, Sneed said.

Last summer, the liner of Union-Go's 7-acre lagoon ballooned, but ground water monitoring showed no leaks at that time.

Concentrated animal feeding operations (CAFOs), which include dairies with more than 700 cows, are required to have federal wastewater permits before facility construction may begin. CAFOs are inspected during and after construction by the Indiana Department of Environmental Management.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Environment

Ind. Courts - "U.S. attorney vows to keep prosecuting corrupt pols"

Dan Hinkel reports today in the NWI Times:

GARY | Acting U.S. Attorney David Capp joked Monday about the two metaphors people eventually might apply to his third term as interim federal prosecutor in Indiana's Northern District.

People might say the third time was the charm, Capp told members of the Gary Chamber of Commerce. Or they might say three strikes and he's out.

"Fortunately, I'm not out yet," Capp said.

Capp declined to comment directly on the chance he could be appointed to the post permanently. Several other local lawyers have declared their interest, but President Barack Obama's administration has dropped no hints.

Capp reiterated his dedication to prosecuting corrupt politicians, the office's hallmark activity under Capp and former U.S. Attorney Joseph Van Bokkelen. Capp said corruption prosecutions will remain a priority as long as he helms the office.

"Citizens have a right to honest government," Capp said.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Indiana Courts

Ind. Law - Governor acts on election law bills [Updated]

Governor Daniels has signed one election law bill, HEA 1346, which will permit online voter registration, but vetoed another, SEA 209, which dealt with provisional ballots and voting centers, saying:

While this bill contains provisions that would make the act of voting more convenient, it does not contain sufficient safeguards against fraud and abuse and removes long-standing bipartisan checks and balances in the conduct of elections.
The Governor has until tomorrow, May 13th, to act on the remaining bills, including HEA 1491, the St. Joe County judges selection / 6th COA panel bill.

[Update at 4:42 PM] 37 additional bills have been signed, including HEA 1483 - Off-road vehicles, farm wagons, and golf carts. Only about a dozen bills remain.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Indiana Law

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

For publication opinions today (3):

In Patricia E. Buhring v. Phillip V. Tavoletti , a 15-page opinion, Judge Brown writes:

Patricia E. Buhring appeals a judgment in her action against Phillip V. Tavoletti. Buhring raises two issues, which we consolidate and restate as whether the trial court erred when it instructed the jury regarding mitigation and damages. We reverse and remand. * * *

[A] * * * [W]e conclude that Tavoletti failed to produce enough evidence of causation to support the giving of the mitigation of damages instruction.

[B] * * * We agree with Buhring that the damages instruction given is, at best, misleading and, at worst, an incorrect statement of the law.

[C] Given our conclusions that the evidence did not support giving the mitigation of damages instruction and that the damages instruction was at best, misleading and, at worst, an incorrect statement of the law, we conclude that reversal and a new trial are necessary. In Simmons v. Erie Ins. Exchange, 891 N.E.2d 1059, 1070-1073 (Ind. Ct. App. 2008), we noted that the Indiana Supreme Court has used two different standards in determining whether an erroneous instruction results in harmless error. * * *

As in Simmons, the matters discussed in the instructions at issue were emphasized to the jury, and the likelihood that the matters were discussed and impacted the jury's verdict is significant. Consequently, we conclude that the giving of the instructions at issue were not harmless error, and we must remand for a new trial on damages.

In Timothy D. Wolshire v. Sharon M. Wolshire , a 13-page opinion, Judge Riley writes:
Husband argues that the trial court erred in three ways: (1) adding the language regarding taxes, insurance, and repairs to the provision of the Separation Agreement governing the sale of the marital residence; (2) awarding Wife a portion of his military retirement benefits; and (3) awarding Wife a portion of the BAH payments. Essentially, Husband contends that all property issues were settled by the parties’ Separation Agreement, while Wife asserts that the Separation Agreement left the three issues above unresolved. * * *

Based on the foregoing, we conclude that the trial court erred by adding new language to the provision of the parties’ Separation Agreement governing the proceeds of the potential sale of the marital residence and by awarding Wife a portion of Husband’s military retirement benefits and a portion of the BAH payments. We remand this cause to the trial court with instructions to amend its decree of dissolution in accordance with this opinion.

In Brian McMurrar v. State of Indiana , a 7-page opinion, Judge Riley writes:
As part of his sufficiency argument, McMurrar contests the trial court’s admission of State’s Exhibit 2, a laboratory examination report concluding that the paraphernalia contained cocaine residue. * * *

McMurrar objected to the admission of the laboratory report on the basis that it did not meet the requirements of the business records exception to the hearsay rule and that the report constituted hearsay based on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 157 L. Ed. 2d 177 (2004). The trial court admitted the exhibit over McMurrar’s objections. On appeal, McMurrar now solely relies on his Crawford argument by claiming that his Sixth Amendment to right to confrontation was violated because the person who examined the paraphernalia was not present at trial to testify.

In support of his argument, McMurrar relies on Jackson v. State, 891 N.E.2d 657, 659 (Ind. Ct. App. 2008), trans. pending [but not yet granted], where we found that the admission of a certificate of analysis or laboratory report used to prove an element of a charged crime constitutes a testimonial statement under Crawford. In Jackson, the person who performed the laboratory testing and prepared the certificate for the purpose of establishing an element of the charge did not testify at trial; instead, her supervisor testified as to whether, in his opinion, the testing had been properly done. Because the State failed to prove that the individual who prepared the certificate or report was unavailable to testify at trial, we concluded that the admission of the certificate violated Jackson’s Sixth Amendment right to confrontation under Crawford.

Here, Patricia Bowen, a forensic scientist with the Indianapolis-Marion County Forensic Services Agency, performed the laboratory testing on some residue found on the paraphernalia for the purpose of showing that the substance was cocaine and to prove an element of the charge, i.e., that McMurrar intended to introduce the cocaine in his body. However, instead of Bowen, the State called Brenda Keller (Keller), the quality assurance manager with the Indianapolis-Marion County Forensic Services Agency. Keller’s testimony was limited to the contents of the report and the conclusions drawn therein; she was merely a sponsoring witness of the exhibit and did not perform the tests herself. The State did not allege, let alone prove, that Bowen was unavailable to testify. Pursuant to Jackson, we conclude that Keller’s testimony does not satisfy McMurrar’s right of confrontation under Crawford. As a result, the trial court abused its discretion by admitting State’s Exhibit 2. * * *

Based on the foregoing, we conclude that the trial court erroneously admitted a laboratory report into evidence. However, as the evidence, including the erroneously admitted laboratory report, was sufficient to support McMurrar’s conviction, we remand for retrial.

For more on Jackson v. State and related cases, see this ILB entry from Nov. 10, 2008.

NFP civil opinions today (3):

Jason Curtis, Brad Curtis and Rhonda Curtis v. The National Mutual Ins. Co. and Celina Ins. Group (NFP) - " We agree with National that the denial of the Curtises motion to amend their counterclaim is interlocutory and has not been properly certified for appeal under Appellate Rule 14(B). Dismissed. "

Term. of Parent-Child Rel. of A.B.; R.B. v. IDCS (NFP)

Term. of Parent-Child Rel. of C.S.; B.S. v. IDCS (NFP)

NFP criminal opinions today (10):

State of Indiana v. Errick G. Benson (NFP)

Jonathan Barr v. State of Indiana (NFP)

Philip R. Miller v. State of Indiana (NFP)

Leroy Burke, Jr. v. State of Indiana (NFP)

Rick Roberson v. State of Indiana (NFP)

Kenneth Macken v. State of Indiana (NFP)

Adrian C. Whitlow, Jr. v. State of Indiana (NFP)

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

Edward Brant v. State of Indiana (NFP)

Donald Robbins, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Three more NFP COA decision reclassified

Since this ILB post on May 6th, three more NFP opinions have been reclassified as For Publication. They are:

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Ind. App.Ct. Decisions

Courts - Continuing with: Indiana decisions cited in Coleman-Frankin Senate dispute

Updating these earlier ILB entries on the Coleman-Franken U.S. Senate election dispute in Minnesota, and their tie-ins to Indiana election law decisions, Indianapolis attorney Bill Groth has sent along a link to the Minnesota Supreme Court brief filed yesterday by the attorneys representine Al Franken, plus these observations:

Although losing a case at the U.S. Supreme Court is never a pleasant experience, I must say it is somewhat of a personal consolation that the attorneys representing Al Franken have seen fit to cite Crawford v. Marion County Election Board three separate times in their brief (pp. 24-26) filed today in the Minnesota Supreme Court to justify election officials' decision not to count abentee ballots that did not strictly comply with Minnesota statutes. Speaking as the attorney for the Indiana Democratic Party in that case, if the decision in favor of the State of Indiana in Crawford helps to insure the seating of the 60th Democratic senator, then the IDP's federal challenge to Indiana's photo ID law was most definitely worth the effort.

By the way, I have a special fondness for retiring Justice Souter, who penned what I would have hoped would be the majority opinion in Crawford. On the other hand, his inability to persuade Justices Stevens and Kennedy in that case may be seen as confirming the one criticism some on the left have made about him--that although brilliant and consistent in his principled opposition to Scalia's originalism, he lacked the personal charisma and charms of his far more gregarious and worldly predecessor, Justice Brennan, who near the end of his long tenure on the Court had considerable success in crafting opinions that succeeded in attracting more conservative justices.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Courts in general

Law - Three US Gov. Accountability Reports of Interest

"Federal Rulemaking: Improvements needed to Monitoring and Evaluation of Rules" - 115 pp. - access it here.

"Global Positioning System: Significant Challenges in Sustaining and Upgrading Widely Used Capabilities " - 15 pp. - access it here.

"Information Security: Cyber Threats and Vulnerabilities Place Federal Systems at Risk " - 21 pp. - access it here.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to General Law Related

Law - "Republican criticism of Obama's pick to head the Office of Legal Counsel is hypocritical and shouldn't be allowed to derail her confirmation"

That is the sub-head to an editorial today in the LA Times, headlined "Defending Dawn Johnsen."

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to General Law Related

Ind. Courts - 7th Circuit Judge Diane Wood featured today in NY Times article

Neil A. Lewis writes today in the NY Times, in a long article that begins:

WASHINGTON — When President Bill Clinton had a rare opportunity in 1995 for a Democratic president to fill a vacancy on the federal appeals court based in Chicago, a bastion of conservative thinking, he received an unusually strong recommendation from Senator Paul Simon.

Mr. Simon, an outspoken liberal from Illinois who died in 2003, told the president the new judge should be a reliable progressive who would be cerebral enough to go up against the court’s two formidable conservatives, Judges Richard A. Posner and Frank H. Easterbrook. He said it should be Prof. Diane P. Wood of the University of Chicago law school.

In the years since Mr. Clinton took that advice, Judge Wood has established herself on the United States Court of Appeals for the Seventh Circuit, in the view of scholars and lawyers, as an unflinching and spirited intellectual counterweight to Judges Posner and Easterbrook. She has taken on that pair and some of the court’s other conservative judges across a wide range of cases including abortion, immigration and access to courts.

Judge Wood, 58, now ranks high on the lists of many lawyers, politicians and scholars who are speculating as to President Obama’s choice to succeed Justice David H. Souter on the Supreme Court.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Indiana Courts

Ind. Courts - Still more on the suspension of La Porte Superior Court 3 Judge Jennifer Evans Koethe

Updating this ILB entry from May 9th,, the Supreme Court has now posted the documents, both filed May 8th -- the Order Suspending Judicial Officer, and the Order Appointing Judge Pro Tempore.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Indiana Courts

Environment - "Millions of gallons of hog manure spilled: State officials believe the discharge might have been deliberate"

Updating yesterday's ILB entry, headed "Who cleans up if a hog farm goes bankrupt?", it appears things have gone from bad to worse. Today Seth Slaubaugh reports in the Muncie Star-Press:

EATON -- State officials are investigating the possibly intentional release of an estimated 4 million to 5 million gallons of manure from the lagoon of the abandoned Muncie Sow Unit hog farm over the weekend.

The lagoon's dike appeared "to have a notch in it," said Amy Hartsock, a spokeswoman for the Indiana Department of Environmental Management.

"Somebody took a trackhoe and dug down into it (the dike) and dumped all the waste manure into the ditch, and it ran to the river," said Kenny Owens, a retiree who owns farm ground and lives nearby.

After IDEM staff responded to the leak, the dike was repaired late Sunday afternoon.

"If it was a deliberate act, we would certainly consider a criminal investigation, but we can't confirm that at this time," Hartsock said. "We are still trying to make a determination of what took place."

The environmental impacts of the discharge also are being assessed, she said.

"We continue to assess the impacts downstream on (a ditch) and the Mississinewa River," Hartsock said. "There were observations of dead fish."

However, the Indiana Department of Natural Resources had not yet provided IDEM the extent of the fish kill.

"Our law enforcement division is looking into that incident, but at this point we don't have any numbers," DNR spokesman Phil Bloom said.

The manure release appeared to reach as far as Mississinewa River, Hartsock said.

Witnesses said the excavator that apparently was used to create the hole in the dike was still on the scene when state responders arrived Sunday. The excavator has been used to demolish barns at the defunct hog farm.

The story also notes:
John and Becky Moriarity, a Gas City couple who bought the abandoned farm last year, have an unlisted telephone number.

On Saturday, a day before the dike was opened, The Star Press reported that IDEM was planning to remove 4.5 million gallons of manure from the 12-million gallon lagoon because it was too full. The agency is also emptying manure from pits below barns.

IDEM is paying a contractor 9 cents a gallon to dispose of the manure at an Indianapolis wastewater treatment facility because no local facilities would accept it.

It would be cheaper for IDEM -- only 2 cents a gallon -- to land apply the manure as fertilizer to local farm fields. However, a soggy spring has made it difficult for producers to get their land applications done.

"IDEM will continue to bring the manure to Indianapolis until the ground is dry enough to allow land application," IDEM spokesman Barry Sneed said last week.

If 4.5 million gallons of manure would have been disposed of in Indianapolis, it would have cost IDEM $405,000. The agency said it planned to recover the cost of removing the manure from the Moriaraitys.

Posted by Marcia Oddi on Tuesday, May 12, 2009
Posted to Environment

Monday, May 11, 2009

Courts - "Ten sites that provide free access to case law"

Robert J. Ambrogi of Law Technology News has put together a very useful list of sites providing free caselaw, along with descriptions of coverage.

Note that access to Casemaker is a free benefit for members of the Indiana State Bar Association.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending May 8, 2009

Here is the Clerk's transfer list for the week ending May 8, 2009. It is three pages long.

Three cases were granted transfer, two with opinion (Hardley and Weldon). The third is Babes Showclub v. Patrick Lair, which the ILB noted in this entry on May 7th.
________

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, May 11, 2009
Posted to Indiana Transfer Lists

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

In Gonzales v. Mize (ND Ind., Judge Springmann), a 23-page decision, Judge Kapala [The Honorable Frederick J. Kapala of the United States District Court for the Northern District of Illinois, sitting by designation] writes:

Argelio Gonzales, an Indiana state prisoner serving a 30-year sentence for various drug-related offenses, challenges the district court’s denial of his habeas corpus petition, 28 U.S.C. § 2254. On appeal, Gonzales argues that he received ineffective assistance of counsel as a result of his trial counsel’s conflicts of interest. We affirm.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Legislators try to cool foreclosure meltdown"

Niki Kelly of the Fort Wayne Journal Gazette reports today on home foreclosure legislation passed by this General Assembly, including Senate Bill 492 and House Bill 1176.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Indiana Law

Ind. Courts - Judge Grant Hawkins returns to bench after 60 day suspension

Jon Murray reports today in the Indianapolis Star:

A Marion Superior Court judge returned to the bench today after serving a 60-day unpaid suspension ordered by the Indiana Supreme Court.

Judge Grant Hawkins received the suspension as a penalty in disciplinary proceedings prompted by his office’s mishandling of an order setting aside a man's rape conviction.

Staffers welcomed Hawkins back to work this morning with a small breakfast reception.

For background, see this list of ILB entries.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Three Little Birds, LLC v. Stone Manor Investment Corp. (NFP) - " Because nothing in the record suggests that Building Envelope F has successfully been resubmitted to the Condominium Project, we conclude that the easement has not been automatically terminated pursuant to the express language of Instrument Nos. 408 or 409, and therefore the trial court did not err in granting partial summary judgment in favor of Stone Manor. In light of our conclusion that the express non-exclusive easement claimed by Stone Manor has not been terminated, we need not consider Stone Manor‟s alternative claim that it is entitled to an easement by necessity. "

NFP criminal opinions today (4):

Mathew Ekola v. State of Indiana (NFP)

David L. Thomas v. State of Indiana (NFP)

Shawn Woods v. State of Indiana (NFP)

Anthony Duerson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Greenwood City Court is the first city court in the state to install the Indiana Supreme Court's computerized case management system

That is from this press release issued today by the Court -- it begins:

"The Greenwood City Court is the first city court in the state to install the Indiana Supreme Court's computerized case management system," Indiana Supreme Court Justice Frank Sullivan, Jr., said today. "I salute Greenwood City Court Judge Lewis Gregory for his leadership in installing this 21st-century technology that will make processing cases more efficient and enhance public safety."

Justice Sullivan, Judge Gregory, and others will demonstrate the new computer system and answer questions at a special briefing on Wednesday, May 13, at noon, at the Greenwood City Court, 186 Surina Way, Greenwood 46143. The event is open to the public.

Judge Gregory explained "I am delighted that the Indiana Supreme Court chose the Greenwood City Court as the pilot city court location for installing its new case management system. We are very pleased with the way it is operating and excited about its prospects for speeding the processing of cases and improving public safety." * * *

[C]osts are paid by JTAC using the proceeds of a [state-wide] court filing fee dedicated to the project by the General Assembly.

For more on the fees used to fund this project, see this ILB entry from Feb. 21st, particularly the chart at the end. Note that any fee increase approval by this General Assembly will have to take place during the speical session.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Indiana Courts

Ind. Law - "It's the Law: Know mo-ped laws before riding"

Ken Kosky's NWI Times' "It's the Law" column today looks at Indiana's mo-ped laws. Some quotes:

Indiana law states to operate a "motorized bicycle" on the roadway, a person must be at least 15 years old and possess either a state identification card, permit or driver's license. They must not operate it on an interstate highway or a sidewalk, and they must not drive at speeds of more than 25 mph.

They can't have any passengers if the machine is designed for one person.

In addition, people under the age of 18 must wear a helmet and either protective glasses, goggles or a face shield.

Porter County authorities said it is also important to note a "motorized bicycle" must meet a definition. It must have two or three wheels; it must have an internal combustion engine or battery-powered motor; it must have an engine rating not more than 50 cubic centimeters or more than 2 horsepower; it must have an automatic transmission; and it must have a maximum design speed of not more than 25 mph on a flat surface.

If a person owns a bigger or more powerful "motorized bicycle," it is considered a motorcycle. That means a person must be at least 16 years old to operate it, must have a driver's license with a motorcycle endorsement and must get a license plate along with insurance for it, Porter County Sheriff's Department Lt. Chris Eckert said.

Eckert said police officers make a lot of traffic stops at this time of year, most involving operators who have an illegal passenger, who don't have the proper safety equipment or who are too young to be operating.

Eckert also reminds people all-terrain vehicles are not allowed on the roadways.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Indiana Law

Ind. Courts - "Galveston planning a town court" to bring money to the town

See the story by Ken de la Bastide here in the Logansport Pharos-Tribune. Some quotes:

GALVESTON — The town of Galveston is in negotiations to lease the former Red Barn convenience store for conversion into police headquarters and the creation of a town court. * * *

[Town Marshal Jim ] Jackson said the intent is to have an office for the Indiana State Police and Cass County Sheriff Department in the building, along with the Galveston Police Department. * * *

Jackson said steps are being taken to start a town court, which will bring money into the town.

“The state police and county will bring tickets to Galveston,” he said. “The town court in Bunker Hill generates $360,000 per year.”

Jackson said a judge will be elected from within the Galveston community and the person doesn’t need to be an attorney.

The court will handle infractions, tickets and some misdemeanor cases.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Indiana Courts

Courts - South Bend's John Adams High School wins national mock trial competition in Atlanta

Updating two earlier ILB entries, this one from March 23rd headed "Kentucky students' court operates just like real thing", where the ILB noted "South Bend's John Adams High School has placed in the top ten in recent years. ," and this one from May 6th, headed "National Mock Trial Competition Encounters a Real Legal Challenge ," the ILB received this note yesterday from a reader:

Marcia, You had a post last Wednesday about a pending lawsuit against the national mock trial competition in Atlanta.

In an interesting and hometown twist to that story, Indiana (John Adams High School) won that competition this weekend. Attorney Susan Roberts from Lafayette is Indiana's Coordinator and does an extraordinary job running Indiana's mock trial program.
And here is the National High School Mock Trial Championship web page, announcing:
2009 National Championship

Atlanta, Georgia, hosted the 26th Annual
National High School Mock Trial Championship
May 6 through May 10, 2009.

The 2009 competition was held at the Fulton County Courthouse in Atlanta May 6-10, 2009. High school students from 42 states, U.S. territories, and South Korea participated in this prestigious two-day national competition.

The 2009 National Champion is John Adams High School from Indiana.

[More] And here is a brief story from today's South Bend Tribune.

Posted by Marcia Oddi on Monday, May 11, 2009
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/11/09):

Thursday, May 14th

  • 9:00 AM - Cornelius Cooper v. State of Indiana - The Marion Superior Court revoked Cooper's probation, and several months later denied Cooper's motion to reconsider. In this appeal from the denial of the motion to reconsider, the Court of Appeals reversed and remanded, finding Cooper is entitled to a probation revocation hearing. Cooper v. State, 894 N.E.2d 993 (Ind. Ct. App. Oct. 6, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Oct. 6, 2008 COA opinion here, 2nd case.]

  • 9:45 AM - Clay City Consol. Sch. Corp. v. Ronna Timberman - Ronna Timberman and John Pipes II filed a child wrongful death action against the Clay City Consolidated School Corporation after their thirteen-year-old child collapsed during basketball practice and died. A jury returned a verdict for the parents. The Court of Appeals reversed and remanded for a new trial. Clay City Consol. Sch. Corp. v. Timberman, 896 N.E.2d 1229 (Ind. Ct. App. Dec. 2, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Dec. 2, 2008 COA opinion here, 2nd case.]

  • 10:30 AM - In re Termination of the Parent-Child Relationship of J.M. - The Allen County Department of Child Services filed a petition to involuntarily terminate the parental rights of J.M.'s mother and father, who at the time were both incarcerated. The court denied the petition to terminate parental rights. The Court of Appeals reversed. In Re Termination of the Parent-Child Relationship of J.M., 895 N.E.2d 1228 (Ind. Ct. App. 2008), vacated. Father petitioned for rehearing on grounds he recently was released from prison. The Court of Appeals denied rehearing. Id., Cause No. 02A05-0807-JV-416, unpublished order, (Ind. Ct. App. Jan. 6, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Nov. 5, 2008 COA opinion here - 3rd case. Also, Nov. 7th press story here and Nov. 11th editorial here. Note: Both Appellees A.S. and A.M. were granted transfer.]

Next week's oral arguments before the Supreme Court (week of 5/18/09):

  • 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 5/11/09):

Thursday, May 12th:

  • 10:30 AM - Carlton Davis vs. State of Indiana - While Carlton Davis was out of town, local police received a call from a neighbor concerning a foul stench emanating from Davis's property as well as the health of the numerous dogs on the property. The responding officer walked the property and found what was later determined to be an animal carcass in the bed of a pickup truck on the property. He also found twelve dogs that appeared to be malnourished and chained outside without food or water. The officer called his superior, who in turn called the local police investigator specializing in animal abuse. When the investigator arrived, she walked the property and interviewed neighbors. She then used this information to obtain a warrant to seize the dogs and search the house, a red shed and a white building on the property. Evidence from this search was used in a jury trial that resulted in convictions against Davis for eight counts of Promoting Animal Fighting Contests, twelve counts of Cruelty to an Animal, Purchasing or Possessing an Animal for an Animal Fighting Contest, and Possession of Animal Fighting Paraphernalia. Davis argues on appeal that the trial court erred in admitting the evidence from the search because the search warrant was invalid for several reasons; one being that the investigator searched his property in violation of his Fourth Amendment rights. He also challenges the admission of other evidence based on Trial Rule 404(b), evidence of other crimes, wrongs or acts.. The Scheduled Panel Members are: Judges Bailey, Mathias and Barnes. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

Next week's oral arguments before the Court of Appeals (week of 5/18/09):

  • 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, May 11, 2009
Posted to Upcoming Oral Arguments

Sunday, May 10, 2009

Ind. Courts - "Expecting jurors not to be tempted by a mountain of information just fingertips away is a national issue, one local court officials must deal with as well"

So writes Stacey Stumpf of the Fort Wayne Journal Gazette in this opinion piece. More:

“We have strict rules of evidence, all of which are in place for a purpose. Telling jurors to ignore certain information doesn’t work. It’s like throwing a skunk in the jury box and telling them not to smell it,” said Steve Russell, professor of criminal justice at Indiana University in Bloomington and a retired Texas trial judge. * * *

Jurors are not supposed to discuss what they hear in the courtroom outside the courtroom. When making a decision, they are allowed to consider only evidence given in court. But instances where jurors are using technology to break these long-honored rules are popping up more frequently. The justice system will decline if the courts don’t learn to adapt to the realities of technology.

“If someone Googles an event,” Russell said, “they are going to get everything that’s been put online, and that could include a site devoted to one side of a case. Then you not only get one side, but you get one side of questionable material. Often stuff that’s frankly too much like untreated sludge to make it into newspapers makes its way into blogs. And key words bring up those blogs and yes, it could be deadly to the case.” * * *

Allen County’s courts are somewhat less vulnerable to jurors posting comments during a trial since county judges banned cell phones and other electronic devices from the courthouse in 2007.

The ban was put in place to eradicate annoying distractions in courtrooms, but principally it is a safety measure adopted to protect jurors. “I had people in the building taking pictures of jurors, and that concerned me,” Allen Superior Court Judge Fran Gull said. “I was doing a gang-related trial at the time, and a photograph of a juror was posted online.”

“We’re uncommon. We were the first in the state to ban cell phones in the buildings and one of the first in the state to remove cell phones from potential jurors before that,” Gull said.

The ban can be inconvenient, and many continue to debate its fairness. But the ban does help avoid some of the problems access to expanding technology poses for the justice system.

While many people have the image of jurors being sequestered without access to phones and TV, in Indiana, that occurs only for the highest-profile cases. Usually, they are sent home with an admonishment – quite difficult to enforce – not to read about or talk about the case.

The lengthy article concludes:
Courts have to trust juries. But they need to update jury instructions at the same pace as technology. With every new iPhone application, courts need to roll out a newer version of user instructions.

U.S. District Court Judge Sarah Evans Barker wisely said courts need to anticipate curious jurors and be prepared for it. “You have to acknowledge the obvious. People are going to go online. They are used to using it, and they like using it. Unless we provide specific instructions otherwise, they are likely to do what they are used to doing and use it. Sources of information are so much wider now, and it’s easy access,” she said.

Barker said technology and easy access to information requires judges to be more sophisticated and ask more expansive questions of jurors during voir dire – the process of questioning potential jurors about their background and potential biases used to seat a jury. “You have to make it very clear. No twitters. No tweets. No nothing!”

Technology is not an enemy of justice. Advances in technology have done more to improve the court system than to harm it. Technology allows trial courts to run more efficiently and more easily provide needed information to judges, lawyers and jurors. But the courts need to adopt new strategies so the less savory uses of technology don’t threaten a revered court system.

For more, check this ILB entry from April 30 and follow the link to earlier entries.

Posted by Marcia Oddi on Sunday, May 10, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court decision in school finance case pending

On Dec. 4, 2008 the Supreme Court heard oral arguments in the case of Philip A. Bonner, et al. v. Mitch Daniels, et al. Here are several ILB entries on the event. Here is the ILB summary of the May 2, 2008 Court of Appeals opinion.

Today, Dan Carpenter, op-ed columnist for the Indianapolis Star, has a column about the case. Some quotes:

Any moment now, or perhaps any month, the Indiana Supreme Court will issue a ruling that might herald a historic change in the way public education is paid for in this state.

Heretofore, school funding has come down to biennial battles in the legislature between Democrats, who fear for urban districts, and Republicans, who favor the faster-growing suburban systems and nonunion charter schools.

A fundamental question -- is state financial support for education adequate for everyone and fair to the disadvantaged? -- has gone unanswered.

What the Supreme Court must decide is whether that is a constitutional question (for the courts to take on) or a political one (to be left to the General Assembly to continue hashing out).

If it decides the former, as the Indiana Court of Appeals has done, then Indiana could join that majority of states in which "adequacy and equity" have been tested in court. Of the 29 outcomes at last report, the plaintiffs have prevailed 20 times, meaning their states have had to rework their school funding formulas.

Posted by Marcia Oddi on Sunday, May 10, 2009
Posted to Ind. App.Ct. Decisions

Environment - "Scores of Indiana homes contaminated by meth labs sit abandoned"

The ILB had a comprehensive entry on March 30th, headed "Meth lab cleanup a hassle for landlords" and quoting a South Bend Tribune story. The entry begins with quotes from the August 6, 2006 ILB entry, headed: "Who should pay price for meth messes?" where I questioned whether property owners would be able to bear the burden imposed by the rule, and also questioned whether the rule went beyond the directive set in the authorizing statute.

Today the Indianapolis Star has a lengthy, front-page story by Francesca Jarosz, headed "Scores of Indiana homes contaminated by meth labs sit abandoned." Unfortunately, rather than addressing the issues raised by the rule, the story is aimed at problems with enforcing the rule.

Some quotes from the story:

Under state regulations, owners are responsible for paying to test properties where meth labs are found and, if necessary, for cleanup to make the properties safe for people to live in.

But getting owners to clean up the properties has proved difficult in many counties, where health department officials lack the authority to enforce the regulations or the money to do the cleanup themselves. In many cases, the residences sit vacant.

At least 18 states require residences with meth residue to be cleaned. In many, the bill is the responsibility of property owners, said Steve Mojonnier, who wrote the state cleanup rule and works in the Indiana Department of Environmental Management's Office of Legal Counsel.

Making sure the properties are decontaminated is important, health officials say. Meth labs can leave behind residue and contaminants such as iodine and hydrogen chloride that can be detected for more than a decade. * * *

The percentage of residences that are abandoned after meth labs are found varies from county to county, but in areas where meth manufacture has been on the rise, health officials say they constitute the majority.

In LaGrange County, at least 30 houses, trailers and apartments where meth labs have been discovered sit vacant. In Noble County, about 13 residences have yet to be cleaned, and many haven't been tested for contamination. In Elkhart County, the toll stands at 31 residences, some of which have been abandoned for more than two years.

"Unfortunately for us, we don't see any letup," said John Hulewicz, environmental health supervisor at the Elkhart County Health Department. "You have good landlords, but economically it doesn't make sense for them to clean up the property."

Police report meth lab discoveries to county health department officials. In most cases, the health departments prohibit occupancy of the property and send owners a letter with information about getting the residence tested and cleaned.

But after the letter is sent, health department officials can't force property owners to pay for the initial testing, which averages about $1,500, or the cleanup, which can cost from $3,000 to $30,000. Insurance companies, typically, have not provided help.

The departments also don't have money to pay for decontamination if owners choose not to clean up the property or to take the alternate route of demolishing it.

When a property where meth was made is abandoned, neighbors and others in the community sometimes have to deal with the effects, such as reduced property values and increased squatters, vermin and illegal activity. * * *

In many counties, officials rarely follow through to see whether properties have been inhabited after they're marked for meth lab cleanup, often because they don't have the manpower.

"It's really hard to keep track of what's going on," said Jack Chronister, the environmentalist for the Noble County Health Department. "It's absolutely a concern."

State officials recognize the problem but say they are constrained in how to fix it. Providing state funding for cleanup would fall on lawmakers, who have other budgetary priorities, IDEM's Mojonnier said.

"There's not a lot of money floating around," he said. "To clean up after criminal activity is not a high-profile item."

My thoughts. The ILB has a long list of entries dealing with meth cleanup. Rural properties and urban settings are both impacted. An effective answer needs to be found, right now it appears we have nothing of the sort. What approaches are being used in other states? What about a cleanup fund financed by a tax on the ingredients used to make meth?

Posted by Marcia Oddi on Sunday, May 10, 2009
Posted to Environment

Ind. Courts - Michigan City paper calls for Judge Koethe to resign

From this editorial today in the Michigan City News-Dispatch:

La Porte Superior Court 3 Judge Jennifer Evans Koethe has been indicted, and now she has been suspended from her position as a judge by the Indiana Supreme Court. Now it is time for her to resign the judgeship.

Yes, an indictment is merely an allegation, and she is presumed innocent until after a trial. She deserves a chance to clear her name in court.

But whatever the outcome of the charge against her, which is attempting to obstruct justice, it will be very hard for her to remain as the officeholder in Superior Court 3.

Aside from the class D felony for which she was indicted, the events that led to her suspension from the bench Friday paint a picture of someone who should not be in that position.

While Koethe was the victim of a gunshot - the circumstances neither she nor her husband, Stephan, have explained publicly - evidence indicates that she and her husband were intoxicated and doing something with a gun in their house late in the evening of Dec. 22 while his two minor children were present, in their own bedroom. That anyone would bring out a gun, after drinking, with children in the home, shows a lack of judgment not befitting a judge.

The fact that she has chosen not to discuss the matter public is telling, too. The entire handling of the incident by the authorities has suggested that they closed ranks to protect this former deputy prosecutor, who was elected in November and sworn in Dec. 31. When authorities go to that length, it only increases the cloud of suspicion over everyone involved. That cloud should not extend to a Superior Court of La Porte County, and the surest way to quickly restore public confidence in this local court is for Jennifer Koethe to step aside, focus on her defense, and let someone else take charge.

See this ILB entry from yesterday, quoting the News-Dispatch news story.

Posted by Marcia Oddi on Sunday, May 10, 2009
Posted to Indiana Courts

Environment - "Former coal lobbyist tapped for key enforcement role at IDEM"

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

MERRILLVILLE -- Meet David Joest.

In his 25-year career as an attorney, he has been a registered lobbyist for the world's largest coal company.

He has made a career of fighting environmental agencies and worked to prevent stricter environmental rules in Indiana and Michigan.

And on behalf of his former employer, Peabody Coal Co., he has fought legal battles over permits against the Indiana Department of Natural Resources and defended the company against enforcement from the Indiana Department of Environmental Management.

Joest is IDEM's newly appointed assistant commissioner for the Office of Legal Counsel -- a job that puts him in charge of civil enforcement and criminal investigations of the state's biggest polluters.

As head of the Office of Legal Cousel, Joest will call the shots and make the policy decisions. The story concludes:
Other chief managers at IDEM also came from the regulated companies in the private sector. Commissioner Thomas Easterly previously worked as superintendent of environmental services for Bethlehem Steel in Burns Harbor. Assistant Commissioner for the Office of External Affairs Scott Nally was an environmental manager at Perdue Farms.

Posted by Marcia Oddi on Sunday, May 10, 2009
Posted to Environment

Saturday, May 09, 2009

Courts - Academic journal publisher Elsevier admits to putting out six fake Australian medical journals, paid for by big pharma

Ben Goldacre of The Guardian reports today:

A fascinating court case in Australia has been playing out around some people who had heart attacks after taking the Merck drug ­Vioxx. * * *

The first fun thing to emerge in the Australian case is email documentation showing staff at Merck made a "hit list" of doctors who were critical of the company, or of the drug. This list contained words such as "neutralise", "neutralised" and "discredit" next to the names of various doctors.

"We may need to seek them out and destroy them where they live," said one email, from a Merck employee. Staff are also alleged to have used other tactics, such as trying to interfere with academic appointments, and dropping hints about how funding to institutions might dry up. Institutions might think about whether they wish to receive money from a company like that in future. Worse still, is the revelation that Merck paid the publisher Elsevier to produce a publication.

The relationship between big pharma and publishers is perilous. Any industry with global revenues of $600bn can afford to buy quite a lot of adverts, and pharmaceutical companies also buy glossy expensive "reprints" of the trials it feels flattered by. As we noted in this column two months ago, there is evidence that all this money distorts editorial decisions.

This time Elsevier Australia went the whole hog, giving Merck an entire publication which resembled an academic journal, although in fact it only contained reprinted articles, or summaries, of other articles. In issue 2, for example, nine of the 29 articles concerned Vioxx, and a dozen of the remainder were about another Merck drug, Fosamax. All of these articles presented positive conclusions. Some were bizarre: such as a review article containing just two references. * * *

Things have deteriorated since. It turns out that Elsevier put out six such journals, sponsored by industry. The Elsevier chief executive, Michael Hansen, has now admitted that they were made to look like journals, and lacked proper disclosure. "This was an unacceptable practice and we regret that it took place," he said.

For more, see this entry today from Slashdot.com, headed "More Fake Journals From Elsevier ."

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Courts in general

Ind. Law - "More States Use GPS to Track Abusers"

Ariana Green of the NY Times reports today in a lengthy story that begins:

NEWBURYPORT, Mass. — When Theresa, a 51-year-old mother of two living near this coastal town, filed for a restraining order against her husband, she thought it would help put an end to the beatings, death threats and stalking that had tormented her family for years.

She won the order, but her husband, Joel, a West Point graduate with a master’s degree who police reports say hid 17 guns in their home, did not seem to care. He violated the restraining order three times, she said.

“He’d come to our child’s school and beat both of us up in front of everyone,” Theresa said.

In Massachusetts, where about one-quarter of restraining orders are violated each year, according to the state’s probation office, a recent law has expanded the use of global positioning devices to include domestic abusers and stalkers who have violated orders of protection. A judge ordered Joel to wear a Global Positioning System monitor, alerting law enforcement officials if he went near his wife’s house, her work or their children’s school.

“It was the first time I could turn my house alarm off and feel O.K.,” said Theresa, who has since been divorced and who insisted that only her first name be used, to protect her children’s privacy.

Twelve other states have passed similar legislation — most recently, Indiana this week — and about 5,000 domestic abusers are being tracked nationwide, said George Drake, who oversees Colorado’s Electronic Monitoring Resource Center, which gathers data from equipment vendors.

Indiana's new law, which was signed by Gov. Daniels on May 7th, is HEA 1578. See the pertinent language on p. 13 of the bill. See also the definition on p. 7.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Indiana Law

Environment - Still more on: Who cleans up if a hog farm goes bankrupt?

Updating several earlier ILB entries, Seth Slabaugh's story today in the Muncie Star-Press is headlined "Taxpayers face $405,000 manure bill." Some quotes:

EATON -- The Indiana Department of Environmental Management is removing 4.5 million gallons of manure from a hog farm that went out of business after being prosecuted for environmental crimes.

"IDEM staff assessed conditions of the lagoon and barns, and determined that immediate action was necessary to prevent the potential for a spill," said IDEM spokesman Barry Sneed.

Muncie Sow Unit LLC was scheduled to be sentenced this week for pleading guilty to recklessly, knowingly or intentionally failing to maintain at least two feet of freeboard in its 12-million gallon manure lagoon, a felony. Freeboard is the distance before the lagoon overflows.

Judi Calhoun, a deputy county prosecutor, said the sentencing of the corporation was postponed until June 3. When the corporation pleaded guilty last October, the prosecution dismissed three felony environmental charges against the defunct corporation's owner, Jacobus John Tielen, 40, formerly of Eaton.

It will cost IDEM 9 cents a gallon to have the manure trucked to the Belmont Wastewater Treatment Plant that serves Indianapolis, or $405,000 for 4.5 million gallons. * * *

Local wastewater treatment plants declined to take the manure.

"We contacted the wastewater treatment facilities in the area, and they either did not want to take the waste or the ammonia and nitrogen content was too high for them," Sneed said. "Taking it would have caused an upset in their system."

IDEM is emptying two manure pits in barns and lowering the lagoon to a safer level.

Since 1999, Tielen has been fined more than $21,000 for spilling manure, failing to report manure spills, killing fish and other violations. In 2002, one of Tielen's ex-employees told The Star Press he was fired for blowing the whistle on one of the manure spills. Tielen, a Dutch immigrant, reportedly told the worker that American environmental inspectors were "dumb." Tielen called the worker's story ridiculous and said he was fired for lack of attendance and poor job performance.

"It is evident that IDEM was not able to provide the oversight and regulation needed to make this swine CAFO (concentrated animal feeding operation) in compliance," said Julie Alexander, a retired educational administrator and member of Indiana CAFO Watch. "Now, the taxpayers will again be burdened with the cost of cleaning up this swine CAFO."

The intense nature of such industrial livestock facilities raises health concerns for those living in the surrounding area, Alexander said.

The cost of the cleanup can be recovered, according to Sneed.

"The responsible party is John and Becky Moriarity," he said. "They purchased the property sometime last year. IDEM will continue to work with them to address the situation." The couple couldn't be reached by The Star Press for comment.

Interesting ...

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Environment

Ind. Courts - More on the suspension of La Porte Superior Court 3 Judge Jennifer Evans Koethe

Updating earlier entries, Laurie Wink of the Michigan City News-Dispatch writes today:

LA PORTE - The Indiana Supreme Court suspended with pay La Porte Superior Court 3 Judge Jennifer Evans Koethe and named former Superior Court 3 Judge Paul Baldoni as temporary judge.

Friday's decision came at the request of the Indiana Commission on Judicial Qualifications following the grand-jury indictment of Evans Koethe, 34, on a class D felony charge of obstruction of justice. The judge's suspension is effective May 11 and will continue indefinitely. The announcement was made by Kathryn Dolan, Indiana Supreme Court public-information officer.

Warrants were issued for Evans Koethe and her husband, Stephan, on Thursday. At 10 a.m. Friday, they were individually booked into La Porte County Jail, photographed, fingerprinted and given an opportunity to post bond, said Maj. Gary Broling, La Porte County Sheriff's Department public-information officer.

Broling said Evans Koethe posted $5,005 surety bond and a $605 cash bond. Stephan Koethe posted a $7,000 surety bond and $500 cash bond. The indictment of Evans Koethe charges her with asking on Dec. 23 for a handwritten note to be destroyed, a note that was evidence in an official investigation of a shooting in her home Dec. 22, 2008. The action is seen as an attempt to obstruct justice.

Stephan Koethe was indicted for two misdemeanors: class A misdemeanor false informing and class B misdemeanor criminal recklessness. The false-informing charge was for knowingly providing a false description of the Dec. 22 events to La Porte police, hindering the law-enforcement process. The criminal recklessness charge was for handling a loaded firearm while intoxicated during an argument with another intoxicated person. The indictment stated that action created the risk of bodily injury to another person.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Indiana Courts

Courts - "What Supreme Court shortlisters are saying when they think nobody is listening"

Slate's Dahlia Lithwick has this article, complete with numerous YouTube clips - the one the beginning compiles some short clips, links to longer clips are scattered throughout the column.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Courts in general

Law - "Illinois law allowing hearsay to shape Peterson case"

The ILB has no plans to cover the Illinois Drew Peterson murder case. However, this AP story today in the Washington Post had some quotes that caught my eye:

JOLIET, Ill. -- Drew Peterson's third wife will have a chance to "testify from the grave" under an Illinois law passed amid the media frenzy over his missing fourth wife, but some say prosecutors could be on shaky legal ground if they plan to build their murder case around that testimony. * * *

The Illinois law allows a judge to admit hearsay evidence in first-degree murder cases if prosecutors can prove the defendant killed a witness to prevent them from testifying. It passed last year amid attention to the October 2007 disappearance of Peterson's fourth wife, 23-year-old Stacy Peterson.

Possible evidence in the Savio case includes letters of protection in which she said Peterson would kill her to shut her up and her sister's testimony to a coroner's jury that Savio told her family it would be no accident if she died.

Peterson's attorneys have vowed to challenge the constitutionality of admitting such evidence. The Constitution guarantees criminal defendants the right to confront his accusers, something they can't do with an absent witness.

Joel Brodsky, one of Peterson's attorneys, has said that allowing Savio's statements would amount to the court allowing "rumor and innuendo" as testimony.

Brodsky also said he could argue that the law was passed specifically to put Peterson behind bars, which is also unconstitutional.

"They're changing the law, changing the rules, changing forensic findings to get this guy," he said. "The law was not supposed to be made for a particular case." * * *

The law requires a judge to hold a pretrial hearing to study whether the evidence shows that the defendant killed a witness and did so to prevent the witness from testifying. The judge would also have to decide whether the hearsay is reliable and whether admitting it would be in the best interests of justice.

The process alone puts the law on shaky ground, according to Joseph Tacopina, a defense attorney whose clients included a suspect in the 2005 disappearance of American teenager Natalee Holloway in Aruba.

Tacopina said the judge's decision to admit statements would indicate to a jury that the judge thinks the suspect is guilty.

David Erickson, a former appellate court judge who teaches at Chicago-Kent College of Law, believed the law will stand up and said at least 12 other states have passed similar statutes.

He also said the Illinois bill and those of other states came in response to a 2004 U.S. Supreme Court decision that found the right of a defendant to confront his accusers has a key exception: if the defendant acted with the intent to prevent that person from testifying.

"Think of mob cases where they kill guys to keep them from testifying," he said.

Erika Slife, Matthew Walberg and Jeff Coen of the Chicago Tribune have this story today. Some quotes:
Will County State's Atty. James Glasgow called the case against Drew Peterson the biggest of his career, one he will prosecute himself.

But the evidence likely will be circumstantial. There are no known witnesses. And prosecutors are expected to rely on a new Illinois statute -- one that Glasgow sought for months and that some call Drew's Law -- to allow Peterson's slain ex-wife, Kathleen Savio, to "testify from beyond the grave."

Peterson's defense team has vowed to challenge the law -- which would allow a judge to admit certain hearsay evidence into court -- as unconstitutional. * * *

Under the new hearsay law, which took effect in December, Glasgow could ask a judge to admit Savio's letters and alleged statements to friends and family into court. He would have to prove to the judge by a preponderance of evidence that Peterson murdered Savio to keep her from testifying against him, that Savio's statements are credible and that the best interests of the court would be served if the statements were admitted into evidence.

"It allows testimony from the grave, so to speak, about threats of violence made toward the victim," said defense attorney Lawrence Wolf Levin. But he said Glasgow would be taking a risk by relying on a law that could face legal challenges. Opponents of admissible hearsay argue that it goes against the 6th Amendment, which reads, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." "Nobody really knows whether this law will stand up and what its final viability will be," Levin said. A higher court could see it as a denial of due process and strike it down, making the Peterson case even harder to prove.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to General Law Related

Ind. Decisions - "N.J. man asks Indiana court to reconsider recent ruling regarding twins born to surrogate"

Updating earlier ILB entries, including this one from April 12th, Jon Murray reports today in the Indianapolis Star:

A New Jersey man has asked the Indiana Supreme Court to reconsider its unanimous ruling overturning his adoption of twin girls born in Indianapolis.

The justices sent the case back to Hamilton Superior Court last month with orders to review the adoption in line with interstate adoption rules. The 4-year-old girls will remain with Stephen F. Melinger, 62, in the meantime.

The case attracted controversy from the start because of questions raised by the Indiana Department of Child Services over Melinger's suitability as a parent and whether the adoptions followed Indiana law.

Karen Zaria and Kathy Zee Melinger, born in April 2005, were carried by a South Carolina woman in a surrogacy arranged by attorney Steven C. Litz, owner of Monrovia-based Surrogate Mothers Inc.

Litz declined to comment Friday. He filed a petition for rehearing Wednesday with the state Supreme Court, which issued its 5-0 decision April 8.

Because adoption proceedings are confidential in Indiana, the high court's clerk declined to provide Litz's petition to The Indianapolis Star. The publicly available docket in the case says Litz has been told the petition was submitted in an incorrect format.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Disciplinary Commission Complaint: Delaware County Prosecutor Mark McKinney violated conduct rules

Joy Leiker reports today in the Muncie Star-Press in a lengthy story that begins:

INDIANAPOLIS -- The good news for Delaware County Prosecutor Mark McKinney only lasted a day.

On Friday, the Indiana Supreme Court Disciplinary Commission verified its complaint against the embattled attorney and accused him of violating four rules of professional conduct, including conflict of interest and standing in the way of justice.

It came a day after McKinney was cleared of criminal liability, and indicates his legal battle is far from over. The lawyer of 18 years could lose his license if the Supreme Court were to impose the most severe penalty.

In a statement issued to The Star Press Friday, McKinney's attorney, Kevin McGoff of Indianapolis said, "Mark is alleged to have had a conflict of interest. He cooperated with the commission from the inception of the investigation, has accepted responsibility and agreed to a resolution of the charges."

McKinney, 44, who declined to elaborate on details of a conditional agreement to end the disciplinary case, said Friday he would "absolutely" fill the remainder his term as prosecutor.

"There's no reason I would not," he said.

On Thursday, a separate investigation, requested by Muncie Mayor Sharon McShurley and conducted by former Monroe County Prosecutor Barry Brown, resulted in no criminal charges being filed against McKinney for his handling of cases for the Muncie-Delaware County Drug Task Force. Brown filed a report and wrote that his investigation revealed "a good faith effort" by McKinney to adhere to statutory regulations and the local accepted practices for asset forfeiture.

Still, the criminal and disciplinary investigations are separate, though the timing of them both concluding this week likely isn't accidental.

At issue is whether McKinney's personal profit from DTF cases -- he was paid 25 percent of the money forfeited by or seized from drug defendants -- impeded the state's criminal cases.

See the May 8th story here.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Indiana Courts

Ind. Decisions - Disciplinary agreement relating to firm name issued by Supreme Court

The ILB doesn't report on every individual attorney disciplinary action, but In the Matter of Loomis, Grubbs, and Wray, issued May 7th, is of general applicability:

Stipulated Facts: On April 17, 2006, Respondents (and one other attorney who is not a respondent) formed "Attorneys of Aboite, LLC." Aboite is a township in Allen County, which is the county in which Respondents maintained law offices. Each Respondent represented clients individually and did not practice as a firm. Respondents used the names "Attorneys of Aboite, LLC" and "Attorneys of Aboite" in professional documents, communications, signage, telephone directory listings, numerous advertisements, and an internet website without revealing that they did not practice law as a firm. The State Board of Law Examiners never issued a certificate of registration for "Attorneys of Aboite, LLC" or "Attorneys of Aboite." In October 2008, Respondents ended the use of "Attorneys of Aboite" in all its forms. Respondents have no prior attorney discipline and cooperated with the Commission's investigation.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

7.2(b): Use of a public communication (advertisement) containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.

7.5(a): Use of professional documents and communications containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.

7.5(b): Practicing under a name that is misleading as to the identity, responsibility, or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, deceptive, self-laudatory or unfair, which includes practicing under a trade name.

Discipline: Respondents' use of "Attorneys of Aboite, LLC" and "Attorneys of Aboite" was improper for a number of reasons. Admission and Discipline Rule 7.5(b) states: "In that it is inherently misleading, a lawyer in private practice shall not practice under a trade name." The impropriety "Attorneys of Aboite" should have been apparent from Matter of Miller, 462 N.E.2d 76 (Ind. 1984) (use of a trade name "Area Attorneys" was improper).

The use of "LLC" in the name implied to the public that Respondents were practicing law together as a limited liability company, not as individuals simply sharing office facilities, and that the requirements of Admissions and Discipline Rule 27 were met. These requirements include that the LLC maintain adequate professional liability insurance or other form of adequate financial responsibility for the protection of clients and that the State Board of Law Examiners investigated the LLC members and certified the LLC. See Admis. Disc. R. 27(g) and (i).

The parties suggest the appropriate sanction is a public reprimand.

Posted by Marcia Oddi on Saturday, May 09, 2009
Posted to Ind. Sup.Ct. Decisions

Friday, May 08, 2009

Courts - Open meetings law may be unconstitutional, 5th Circuit rules

The Reporters Committee for Freedom of the Press reported April 30th in an entry that begins:

In an opinion that could call into question the constitutionality of open meetings laws everywhere, a federal appellate court held Monday [April 24th] that the Texas Open Meetings law must pass a heightened constitutional test under the First Amendment.

In a relatively brief opinion, the U.S. Court of Appeals in New Orleans (5th Cir.) held that elected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.

The case centers on two city council members who were prosecuted for violating the law by privately e-mailing each other. Their alleged crime was “acting as a quorum in exchanging private emails discussing whether to call a council meeting to consider a public contract matter,” according to the court.

The district attorney eventually dropped the charges in the case, but the council members argued in federal court that the law violated their First Amendment rights.

The trial court found that as elected officials, the council members' speech was not protected by the First Amendment. The appellate court found otherwise.

“The Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general,” Judge James Dennis wrote for the three-judge panel.

The unanimous appellate court then sent the case back to the trial court for review. It said the trial court had not properly considered whether the statute was constitutional under the “strict scrutiny” standard, and that it should do so now.

That standard requires that, if it will interfere with protected speech, a regulation must be narrowly tailored to advance a substantial government interest. Few laws are upheld as constitutional under this test.

Here is a link to the 5th Circuit opinion.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Courts in general

Environment - W.R. Grace Acquitted in Asbestos Case

Kirk Johnson reports in the NY Times this afternoon. The story begins:

A federal court jury on Friday acquitted the big chemical products company, W.R. Grace, and three of its executives on all criminal charges that they had knowingly contaminated the small Montana mining town of Libby with asbestos, then conspired to cover up the deed.

At least 200 people have died of asbestos-related diseases, and hundreds more have been sickened, in the tiny community of Libby, which has a population of about 2,600. And there is no doubt that the Zonolite Mountain vermiculite mine, owned and operated by Grace from 1963 to 1990, was the source of the asbestos.

But the jury in Federal District Court in Missoula — deliberating less than two days after a nearly three-month trial — unanimously concluded that the disaster was not a matter of criminal culpability by the company.

The verdict marked a repudiation of the Federal government’s case, which painted Grace as a greedy mine operator, cognizant of the risks of its mining operations — and the dust plumes that once famously wafted through town — and then callously, criminally covering up the crime.

At the heart of the case were two tangled, inter-related questions: What did the company and its executives know about the dusty detritus from its mine, just outside Libby, and when did they act or not, upon that knowledge?

Another interesting quote:
As the prosecution ended its case in late April, jurors saw the star prosecution witness, Robert H. Locke, denounced in court by Judge Molloy, who also raised doubts in front of the jurors about the tactics and practices of the prosecutors from the United States Attorney’s office.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Environment

Ind. Courts - "The Indiana Commission on Judicial Qualifications has recommended that a La Porte County judge who was indicted Thursday with a felony be suspended from her job with pay"

Updating this ILB entry from earlier today, Pablo Rio is reporting in the South Bend Tribune:

The Indiana Commission on Judicial Qualifications has recommended that a La Porte County judge who was indicted Thursday with a felony be suspended from her job with pay, a spokeswoman for the Indiana Supreme Court said Friday.

Kathryn Dolan said Judicial Qualifications Commission has filed a notice of indictment in the case of La Porte County Judge Jennifer Evans Koethe, and has recommended that she be suspended with pay until further order of the Supreme Court or until there is a final determination of disciplinary proceedings that may result from the indictment. * * *

Dolan said the Supreme Court is working "as quickly as possible" to make a decision about whether to suspend Koethe from her job.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Indiana Courts

Law - The law firm of the future?

From the American Law Daily, an article from April 20th headed "The Future Comes to Bloomington." It begins:

Bill Henderson, the irrepressible Indiana University law professor, had a simple idea. To test the viability of the big-firm model--and look for ways to change and rescue it--he and Anthony Kearns, the lead risk manager for the Australian lawyers insurance operation, organized a clever role-playing game, a sort of Dungeons and Dragons for lawyers. FutureFirm, as they called it, is a case study of a hypothetical Am Law 200 law firm in trouble (Download Future Firm Competition). Teams of law firm partners, clients, law students, and consultants would spend a day and a half trying to devise a strategy that would allow the tottering Marbury & Madison LLP to survive for another decade. And in the process, the emerging PowerPoints and rump partners meetings would shed light on the current thinking of what firms in peril--and others merely facing the broader economic turmoil--might do to right themselves.

In all, 44 players, 14 judges, and assorted hangers-on participated in the game last weekend at Indiana's Maurer School of Law. What emerged from the exercise was a surprising convergence of strategies that gave an outline to what a new model might look like. These strategies were not radical, and they attempted to address a variety of much-brooded-about problems among the big firms, including client billing revolts, associate dissatisfaction, peripatetic partners, and an unsustainable economic model. What emerged, of course, was governed by the choice of the participants. Included on the roster were members of experimental law firms--both the Summit and Valorem Law Groups--various refugees from big firms, clients with a record of welcoming or demanding different approaches, and a variety of agitators for change, most of whom are my friends. But in an era when the heads of major firms talk openly about abandoning the billable hour, and others admit that they've never embraced it, it's getting harder to identify the radicals by their pinstripes.

The competition was more than a game. Hildebrandt, the consulting firm, put up $15,000 in prize money (to be divided among the participating law students) and attached a consultant to each team.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

The Supreme Court today granted transfer with per curiam opinion in the case of Alexa Whedon v. State of Indiana:

Alexa Whedon was convicted of murder in a bench trial during which several women who were in jail with Whedon testified as to incriminating statements that they said Whedon had made to them. We affirmed Whedon’s conviction on direct appeal. Whedon v. State, 765 N.E.2d 1276 (Ind. 2002). Whedon then initiated this proceeding, contending, inter alia, that newly discovered evidence entitled her to post-conviction relief, to wit, that the testimony of two of the jailhouse witnesses had not been truthful. The post-conviction court denied relief because the claim did not meet the requirements for newly discovered evidence enunciated in Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991), and other cases. The Court of Appeals affirmed. Whedon v. State, 900 N.E.2d 498, 505 (Ind. Ct. App. 2009). We grant transfer and summarily affirm the decision of the Court of Appeals. Ind. Appellate Rule 58(A).

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Liberty Landowners appeal court ruling on new hospital"

Updating this ILB entry from April 11th, which quoted a story from the Chesterton Tribune that began:

A Porter County judge pro tem has dismissed the lawsuit brought by the Liberty Landowners Association against the rezoning for the new Porter hospital in Liberty Township, saying that the citizens group lacks standing to sue because it doesn’t own property adjacent to the hospital site.
Today Vicki Urbanik, reporting for the Tribune, writes:
The Liberty Landowners Association is appealing a Porter County Circuit Court ruling that found that the citizens group lacks standing to fight the county’s rezoning for a new Porter Hospital at Ind. 49 and U.S. 6.

The association’s attorney, Martin Lucas, filed the notice of appeal this morning in county court. The deadline for the appeal is tomorrow.

On April 8, Porter Circuit Court Judge Pro Tem James Sarkisian dismissed the suit brought against the county by the Liberty Landowners, who sought to challenge the Institutional zoning that the county commissioners approved 2-1 for the new hospital. The landowners claim that the new zoning violates the county’s Unified Development Ordinance because it is not compatible with the adjacent residentially zoned property.

But the court fight didn’t focus on the zoning decision, but on whether the Liberty Landowners even had the right to sue. Sarkisian ultimately agreed with the county and the hospital by ruling that the landowners lacked standing because the group doesn’t own property adjacent to the hospital site and thus, could not suffer a loss if the hospital is built there.

Lucas said the Liberty Landowners do not dispute that the group doesn’t own adjacent property. But he said the appeal will attempt to show that the lower court’s ruling was erroneous based partly on the “public issue” involved.

Lucas noted that in many zoning disputes, aggrieved property owners argue a loss of private rights. But in this case, the Liberty Landowners are not claiming that their private rights are being violated, but are raising a public issue of the impact of the hospital at the proposed site.

He said court rulings have found that citizen groups can, under certain circumstances, apply a doctrine that allows standing based on the public issue. “We think that should apply here,” he said.

Lucas emphasized that the Liberty Landowners’ concern is over the zoning that was approved and is not directly fighting the hospital. The hospital had the right to seek the rezoning, he said, but added that the group contends that the commissioners erred by granting that request.

The case will now be assigned to the Indiana Court of Appeals.

For a look at the status of "associational standing" in Indiana, see this ILB entry from Aug. 18, 2005, re Save the Valley v. Indiana-Kentucky Electric., and this entry from Jan. 13, 2005 - here is the ruling. Another concept , "public interest standing," is recognized in Canada and several states - see this Conn. Law Review article from Dec. 2008.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Adoption of D.S.; A.S. v. G.B. (NFP) - "[T]he trial court found that Father‟s consent to the adoption was not required because he failed to communicate significantly with his son for at least one year when capable of doing so. On appeal, Father presents the following restated issue for review: Did Stepfather present sufficient evidence to establish that Father‟s consent was unnecessary? We affirm."

NFP criminal opinions today (2):

Gregory C. Holmes v. State of Indiana (NFP)

Bryan Douglas v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from the Indiana Tax Court, one involving "non-code" provisions

In Lake Co. Property Tax Assessment Board of Appeals v. St. George Serbian Orthodox Church, a 6-page opinion, Judge Fisher writes:

The Lake County Property Tax Assessment Board of Appeals (PTABOA) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) which granted St. George Serbian Orthodox Church (St. George) a property tax exemption for the 2003 tax year (year at issue). On appeal, the PTABOA argues that the Indiana Board erred when it determined that St. George prima facie demonstrated that its cultural center qualified for the religious purposes exemption as provided in Indiana Code § 6-1.1-10-16. * * *

St. George’s Parish consists of its church, a priest’s residence, a garage, a community hall, a cultural center, and the 73.2 acres of land upon which those improvements stand. The cultural center is the subject of this appeal.

The cultural center, at 39,000 square feet, contains church administration offices, conference rooms, and a banquet facility complete with its own kitchen. St. George uses the cultural center for church events including, inter alia, choir practice, folklore practice, church meetings, and fish fries. The cultural center’s banquet facility is also available to the public for rent. * * *

The taxpayer bears the burden of proving that it is entitled to the exemption it seeks. * * *

In its final determination, the Indiana Board held that St. George met this burden. Indeed, the Indiana Board explained that during the administrative hearing, St. George not only presented evidence as to which church-affiliated organizations regularly used the cultural center, but it also provided a month-by-month listing of events that took place in the cultural center during tax years 2000, 2001, 2002, and 2003 (“calendar summaries”). The Indiana Board determined that these documents prima facie established that the cultural center was used 63% of the time for a religious purpose. The Indiana Board then explained that because the PTABOA failed to rebut this evidence during the administrative hearing, the cultural center was entitled to the exemption for the year at issue. * * *

To demonstrate an abuse of discretion, however, the PTABOA must do more than assert that St. George should have tried its case differently. Rather, the PTABOA must show this Court that there is probative evidence in the administrative record that affirmatively demonstrates that St. George did not predominately use its cultural center for religious purposes. The PTABOA has not met this burden, and therefore the Indiana Board’s final determination must stand.

In St. George Serbian Orthodox Church v. Lake Co. Property Tax Assessment Board of Appeals, a 7-page opinion, Judge Fisher writes:
St. George Serbian Orthodox Church (St. George) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) which denied it a property tax exemption for the 2001 and 2002 tax years (years at issue). The issue on appeal is whether St. George's cultural center is entitled to the religious purposes exemption for the years at issue. * * *

On appeal, St. George claims that the Indiana Board's determination that it received notice of the change in its assessment through its tax bills is not supported by the evidence. St. George explains, however, that the Court need not even address the issue given that pursuant to a recent, retroactive amendment to Indiana Code § 6-1.1-11-3, its exemption applications for the years at issue were in fact timely filed. St. George is correct.

In 2008, the legislature enacted a non-code statutory provision [6] which provided the following: [text omitted]

This non-code section clearly evidences the legislature's intent to allow taxpayers until January 1, 2008 to file their exemption applications for the years at issue. Id. Because St. George's exemption applications were filed on March 3, 2003 for the years at issue, they were timely filed pursuant to Public Law 131-2008, § 66.[7]

___________
[6] "A 'non-code' section is one which, though enacted with a piece of legislation, is not codified within the Indiana Code. Such 'non-code' provisions . . . are appropriately considered by a court when interpreting [] statute[s].” Sullivan v. Day, 661 N.E.2d 848, 851 n.3 (Ind. Ct. App. 1996), vacated in part on other grounds by 681 N.E.2d 713 (Ind. 1997).

[7] The PTABOA argues that because St. George did not raise the applicability of the non-code provision as an issue at the Indiana Board administrative hearing, the issue cannot be considered now on appeal. (Resp't Br. at 8 (citing IND. CODE ANN. § 33- 26-6-3(b) (West 2009) (which states that this Court's review of Indiana Board decisions “is limited to only those issues raised before the [Indiana Board], or otherwise described by the [Indiana Board], in its final determination”)).) The Court disagrees for two reasons.

First, the applicability of the non-code provision could not have been raised as an issue at the July 7, 2007 Indiana Board hearing, given it was not enacted until 2008. Second, and more importantly, in applying the law to this case now, the Court must not only consider and apply the terms of Indiana Code § 6-1.1-11-3, but its non-code provisions as well. See supra note 6.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - "We have previously called into question similar behavior by Judge Brahos in other cases ... That it continues is inexplicable" writes the 7th Circuit today

That quote is from footnote 4 in the opinion today by Judge Sykes in the immigration case of Oliveira v. Eric H. Holder. More from the 14-page opinion:

Jonathan Castilho de Oliveira, a citizen of Brazil, sought asylum and withholding of removal, claiming that Brazilian governmental and banking officials were involved in the assassination of his father and are now intent on taking his life. An Immigration Judge (“IJ”) disbelieved Castilho de Oliveira’s story and also held in the alternative that even if it were true, it did not establish eligibility for asylum. The Board of Immigration Appeals (“BIA”) adopted and affirmed that decision, and Castilho de Oliveira petitioned this court for review.

Without commenting on the merits of Castilho de Oliveira’s claim, we conclude that he did not receive a fair hearing before a neutral immigration judge. The IJ repeatedly interrupted the testimony to ask irrelevant and sometimes inflammatory questions, refused to consider important evidence, and decided the case without seriously engaging with the evidence in the record. Indeed, so troubling are some of these lapses that we are left with the impression that the IJ “cared little about the evidence and instead applied whatever rationale he could muster to justify a predetermined outcome.” See Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir. 2008). Accordingly, we grant Castilho de Oliveira’s petition for review, vacate the decision of the BIA, and remand for a new hearing. * * *

The problems we have identified are cumulatively disturbing and convince us that Castilho de Oliveira was denied a meaningful opportunity to be heard before a neutral IJ, required by statute and regulation.[4] See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.1(c); Bosede, 512 F.3d at 952. Accordingly, Castilho de Oliveira’s petition for review is GRANTED; the decision of the BIA is VACATED; and the case is REMANDED for a new hearing, preferably before a new immigration judge.

_______
[4] We have previously called into question similar behavior by Judge Brahos in other cases: “factual error, bootless speculation, and errors of logic,” Pramatarov v. Gonzales, 454 F.3d 764, 765-66 (7th Cir. 2006); questioning “so harsh and rude as to suggest bias,” id.; and conduct that was “unseemly,” “intempera[te],” and even “mocking,” Apouviepseakoda, 475 F.3d at 886. That it continues is inexplicable.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Justice is not being delayed at the Court of Appeals"

Indiana Legislative Insight ($$) has this item in the May 11th issue (reprinted with permission):

HEA 1491 also would add a sixth appellate panel, with some 15 new employees (including the judges) at an annual cost of more than $2.2 million.

Chief Judge John Baker of the Court of Appeals acknowledges to us that the intermediate appellate court faces "an ever-increasing case load," but he explains that "because we have been given sufficient staff, we're able to clear 100% of our case inventory each year, while also maintaining the "Appeals on Wheels."

What does he mean by this?

"We have reduced the amount of time that a case is pending and reduced the time it takes for a case to get to us by tightening up on requests for delays," he tells us, adding that "We are the fastest intermediate court of appeals in the United States. We have experienced a reduction in caseload from 2008 to 2009. Carried through for all of '09, we are down by about 100 cases this year."

"Justice is not being delayed at the Court of Appeals," Judge Baker assures us.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Ind. App.Ct. Decisions

Environment - "BP, environmentalists debate oil sand"

Gitte Laasby of the Gary Post Tribune reports today:

PORTAGE -- With BP Whiting's expansion, the fight over oil sands has begun.

In one corner: The oil industry, including BP, and the government of Alberta, Canada, where much of the oil sand is mined.

In the other corner: Environmentalists, conservationists and renewable energy advocates.

On Thursday, industry threw a punch when Indiana Petroleum Council Executive Director Maggie McShane spoke at the Northwest Indiana Regional Plan Commission's environmental management and policy committee.

"We have a growing demand for energy. Canadian oil is a reliable and plentiful strategic resource and it makes the United States more energy secure," she said. * * *

Environmental groups, including the Natural Resources Defense Council, fight the use of oil sands, saying it requires removal of boreal forests in Canada and large amounts of energy to extract. They say it contains more contaminants than conventional oil and causes more greenhouse gas emissions.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Environment

Ind. Courts - More on: "Grand jury indicts LaPorte judge who was shot, her husband" [Updated]

Updating this ILB entry from yesterday, Pablo Rios of the South Bend Tribune has a report that adds this new information:

Court documents filed Thursday in LaPorte Circuit Court do not include any details about the handwritten note Koethe is accused of destroying or what its relevance was in the investigation, other than that it was evidence.

Kathryn Dolan, a spokeswoman for the Indiana Supreme Court, said Thursday that the court had appointed a special judge to oversee the case.

The Indiana Supreme Court has appointed Judge Thomas P. Stefaniak Jr. of Lake County to preside over Judge Koethe's case, Dolan said, after LaPorte County judges expressed a conflict of interest in being appointed to the case.

Dolan also said the Supreme Court has the right to suspend with pay a judge charged with a felony, but no decision has yet been made regarding Koethe.

[Updated at 11:15 AM] Laurie Wink of the Michigan City Post-Dispatch has a long and comprehensive report today on the Judge Koethe indictment.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Indiana Courts

Law - Allegedly "certain law firms are using Westlaw and Lexis as profit centers, as compared to simply passing along their actual costs to their client"

Tresa Baldas of The National Law Journal has a story today headed: "Lawsuit Claims Chadbourne Overcharged for Computerized Legal Research: Attorney says law firms themselves pay flat fees for research services but then turn around and bill clients for those costs at hourly rates." Here is a quote from the end of the story:

According to court records, Waggoner was billed $108,000 for the law firm's services, of which roughly $20,000 was for legal research fees.

Meyer claims that Chadbourne & Parke did what several law firms are doing -- billing clients for hourly rates that are charged by companies, such as Westlaw and LexisNexis, when they are actually paying flat, package rates for those services.

Officials at Thomson Reuters, which owns Westlaw, said that law firm subscriptions vary, depending on the nature of their practice and research needs. They said firms commonly will pay a set rate for access to specific Westlaw databases that are core to their practice and pay hourly charges for accessing databases outside their plan.

Meyer alleges that her client was billed for the hourly rate, when the law firm paid a flat fee.

"It's disgorgement of profits," Meyer said. "That's our allegation."

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to General Law Related

Ind. Courts - "Special prosecutor: No criminal charges against McKinney"

Joy Leiker reports today in the Muncie Star-Press:

MUNCIE — A special prosecutor has cleared Delaware County Prosecutor Mark McKinney of any criminal wrongdoing in his handling of drug forfeiture cases.

Monroe County Prosecutor Barry S. Brown issued his findings today and said McKinney will not face criminal charges.

“There appears to have been a good faith effort by Mark McKinney to comply with the Indiana legislative statutory provisions as well as adhere to the practices and protocols of asset forfeiture as they existed in Delaware County at the time Mark McKinney served as deputy prosecuting attorney and prosecutor,” Brown wrote. * * *

Still pending is yet another separate review, by the Indiana Supreme Court Disciplinary Commission, which is considering a complaint about McKinney's handling of DTF cases filed by [Muncie Mayor Sharon McShurley].

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Indiana Courts

Courts - More on "White House Formalizes Supreme Court Short List"

Bloomberg News has a long story today by Edwin Chen, going through the potential candidates for the Supreme Court.

Posted by Marcia Oddi on Friday, May 08, 2009
Posted to Courts in general

Thursday, May 07, 2009

Courts - "White House Formalizes Supreme Court Short List"

ABC News's correspondent Jan Crawford Greenberg reports:

The White House has formalized its short list of Supreme Court contenders and asked six prospects to provide personal background information, with an intensive vetting process well underway, according to sources close to the process.

The leading contenders on the short list: federal appeals court Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, sources close to the process say.

Oddly, the long story doesn't name the other three on the list.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Courts in general

Ind. Courts - "Grand jury indicts LaPorte judge who was shot, her husband"

Breaking news from the NWI Times:

A LaPorte Superior Court judge who was wounded by a gunshot in her home in December and her husband have been indicted by a grand jury.

Judge Jennifer Evans Koethe was charged with obstruction of justice while her husband Stephan Koethe was charged with recklessly performing an act which created a substantial risk of bodily injury to another person and knowingly providing false information in the investigation of a crime.

Evans was grazed in the head Dec. 22 by the gunshot. She wasn't seriously injured.

Her husband said at the time she was handling a gun that she did not think was loaded when it discharged. The indictment, though, says he loaded a firearm while intoxicated during an argument with another intoxicated person.

Here is a list of earlier ILB entries.

[More] Here is a link to the two indictments.

Here is a story stamped 5:50 PM from WSBT.com:

LaPORTE — A LaPorte grand jury has indicted a LaPorte County judge and her husband.

Jennifer Evans-Koethe was grazed in the head by a bullet at her home in December. She wasn't seriously hurt.

But court documents released Thursday claim she asked investigators to dispose of a a handwritten note that was evidence. She has been indicted for attempted obstruction of justice, a Class D felony.

Those documents also allege her husband, Stephan Koethe, provided false information during the investigation. He is also accused of recklessly performing an act which created a substantial risk of bodily injury to another person, and handling and loading a firearm while intoxicated and during an argument with another intoxicated person.

Stephan Koethe has been indicted for false informing, a Class A misdemeanor, and criminal recklessness, a Class B misdemeanor.

A warrant is out for their arrest.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Courts

Ind. Law - Governor signs more bills

The Governor today has signed two bills the ILB has been following:

  • HEA 1468 - Animal cruelty and commercial dog breeders
  • SEA 554 - Breast cancer screening and Medicaid eligibility - see this ILB entry from Feb. 23rd.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Law

Law - "College Athletes Finally Sue Electronic Arts/NCAA for Misappropriation of their Likenesses"

A long story by Elie Mystal today in Above the Law Here is a quote, taken from about a third of the way through the piece:

Everybody still with me? Okay, so you can see the obvious problem with college sports video games. Everybody wants real teams and real players, but the game publishers can't use the likenesses of actual college players. That would be stealing! But since it's perfectly legal for the NCAA to prevent kids from earning money for playing college sports, there's not really anybody video game publishers can pay for the rights. Except the colleges and universities themselves. Who, again, make a metric ton of money off of college sports.

So, game publishers like Electronic Arts, essentially, cheat. If you pick up the copy of a college sports game, you'll see all the players, with their accurate numbers, positions, player attributes, pretty much everything except the players' actual names. Luckily, you can change the names of players, and every year hundreds of users sit there and change all of the names of all the players to their real life counterparts. Then people like me pay for the "updated rosters" (back in the day) or simply download them for free.

And everybody is happy.

Except, of course, the college athletes. Especially the college athletes that have only a limited chance of going pro but are very popular college athletes and want to get a little more than a diploma out of it.

Okay, enough set up, let's get into what Nebraska QB #9 (Sam Keller) and others are doing about it.

The entry also includes this link to the full complaint, filed in federal court in the ND CA.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to General Law Related

Ind. Decisions - One case granted transfer May 7th

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer has been granted today by the Supreme Court in the following case:

Babes Showclub v. Patrick Lair -- 49A05-0805-CV-262. See the ILB summary of the Feb. 13th Court of Appeals opinion, involving the Fireman's Rule and the Rescue Docrtine, here.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Transfer Lists

Ind. Law - Several stories today about bills that have passed the General Assembly

"Legislature OKs clean water bill" is a long story in the Muncie Star-Press by Rick Yencer. He does not give the bill number, and I cannot locate the bill described.

Andy Grimm writes in the Gary Post-Tribune about passage of the puppy mill bill, HEA 1468.

Timberly Ferree reports in the Greene County Daily World:

Golf carts were brought to the forefront at the Bloomfield Town Council meeting Monday.

Council Member Aaron Hamm provided the details on the legislation that will allow golf carts to be driven in towns and cities -- which will be effective July 1.

The state approved legislation in April that will allow golf carts to be driven in towns/cities if there is a local ordinance allowing it, Hamm said.

Provisions within the legislation require the driver of the golf cart to have a valid driver's license and the vehicle to have insurance as well as a revolving red or amber light or slow moving vehicle sign, Hamm added.

The bill is HEA 1483.

As of these writing, all of these bills are awaiting the Govenor's action.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Steven A. Januchowski v. Northern Indiana Commuter Transportation District, a 19-page, 2-1 opinion, Judge Vaidik writes:

While working for the Northern Indiana Commuter Transportation District ("NICTD") as a carman, plaintiff Steven Januchowski alleged that he was injured by shifting panels as a result of NICTD’s negligence. NICTD operates a passenger commuter rail service from South Bend, Indiana, to Chicago, Illinois. Januchowski brought his claim under the Federal Employers’ Liability Act (FELA), which provides a federal cause of action for railroad employees injured as a result of negligence. Januchowski brought his claim more than two years, but less than three years, after the alleged injuries. At trial, Januchowski argued that FELA’s three-year statute of limitation applied to his case. NICTD argued that Indiana’s general two-year statute of limitation for personal injury torts applied because of the Indiana Tort Claims Act (ITCA), and that, as a result, Januchowski’s claim was time-barred. Agreeing with NICTD on this point, the trial court granted summary judgment in favor of NICTD. Because we find that FELA’s three-year statute of limitation applies under statutory law and our Supreme Court’s case law, we reverse and remand. * * *

RILEY, J., concurs.
DARDEN, J., dissents with separate opinion. * * * It is undisputed that Indiana courts and federal courts have concurrent jurisdiction with respect to a claim under FELA. 45 U.S.C.A. § 56. As a result, in my opinion, when a FELA action is adjudicated in an Indiana state court, we apply "state procedural rules" and "federal substantive law." * * *

Given the concurrent subject matter jurisdiction of Indiana and federal courts, Januchowski had a choice of forums. However, the forum he chose was the state court. He chose to pursue his FELA claim under the Indiana Tort Claims Act, complying with its notice requirements and subsequently filing this action in an Indiana state court. I find that by choosing to file his action in the state court, he brought himself within the jurisdiction of Indiana’s procedural laws – including the Indiana procedural statute providing for a two-year statute of limitations for personal injury claims.

In Reynaldo A. Griffin v. State of Indiana, a 10-page, 2-1 opinion, Sr. Judge Sharpnack writes:
Griffin was arrested for possession of cocaine within 1,000 feet of school property. Griffin pled a defense pursuant to Ind. Code § 35-48-4-16 that he was “only briefly present near the school property and that no children were present.” Griffin did not testify at trial, and no defense witness testified as to the defense. Officer Walker testified that he had watched Griffin for some time before stopping him. * * *

In order to prove possession of cocaine as a Class D felony, the State must show that a person knowingly or intentionally possessed the drug. Ind. Code § 35-48-4-6(a). The offense is enhanced to a Class B felony if the person possesses cocaine in, on, or within 1000 feet of a public park. Ind. Code § 35-48-4-6(b)(2)(B). However, Ind. Code § 35-48-4-16(b) provides that it is a defense that (1) a person was briefly in, on, or within 1,000 feet of school property, and (2) no person under eighteen was in, on, or within 1,000 feet of school property. * * *

The jury, which was instructed on the defense, determined that Officer Walker's approximate five-minute observation of Griffin's walk down Campeau Street was sufficient to show that he was not “briefly” within 1,000 feet of the school. As we stated above, we will not impinge on a jury's determination unless “no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt.” There is no ironclad rule as to what constitutes a “brief” presence, and we cannot say as a matter of law that the jury's determination was unreasonable under the circumstances of this case. Accordingly, the State's evidence was sufficient to rebut Griffin's defense. Affirmed.

MATHIAS, J., concurs.
FRIEDLANDER, J., concurring in part, dissenting in part. * * * Turning now to the instant case, the salient facts are that Griffin was walking a moped past a school when he was stopped by police. Although the term “briefly”, as used in I.C. § 35-48-4-16(b)(1), clearly imparts a temporal connotation, the time span itself is not the only element in this equation. Whether a particular time interval is “brief” is also a function of surrounding circumstances, including the defendant‟s intentions to be or remain near the school zone for any period of time, however short.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Eric Emrich v. State of Indiana (NFP)

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

Daemen Sampson v. State of Indiana (NFP)

Michael L. Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Daniels OKs online voter registration"

Updating yesterday's entry, the NWI Times story I quoted was wrong. The Governor has not acted on HEA 1346.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Law

Ind. Law - More on: "Police want to add DNA from more people to database"

Updating these ILB entries from Feb. 17th and this one from April 20th that begins:

Updating this long ILB entry from Feb. 17th, I just checked the four DNA-related bills listed, and none of them is still viable.
The blog ProPublica, in conjunction with Politico, has conducted a major investigation of the national DNA backlog. This very long story by Ben Protess, dated May 5, is headed "The DNA Debacle: How the Federal Government Botched the DNA Backlog Crisis." Some quotes:
After her attack [in 1994, Kellie] Greene joined other rape victims in a crusade to expose the backlog of untested DNA evidence sitting in freezers and on shelves in police departments and crime labs nationwide. She spoke out about her ordeal in hopes of sparing other women similar pain.

In 2003, her efforts appeared to pay off. Greene stood with Attorney General John Ashcroft at the White House when he announced that the U.S. Justice Department planned to spend a billion dollars to eliminate the backlog. The aim of the mission: to help labs swiftly identify murderers, rapists and other dangerous criminals so they couldn't strike again.

But at the same time, the Justice Department, along with Congress and state legislatures, adopted a conflicting agenda: to collect more DNA samples from wider swaths of the population.

The result: Today, 15 years after Greene began her campaign, the backlog continues to soar. At least 350,000 samples from murder and rape cases -- many of them involving sexually abused children -- remain untested, according to the federal government's best estimates. In 2005, labs across the country saw their DNA backlogs nearly double.

Part of the uptick comes from new technologies that allow tiny bits of DNA found at crime scenes to be scooped up and tested. But much of the surge [1] can be traced to new federal and state laws [2] requiring law enforcement to collect DNA samples from people convicted of -- or simply arrested for -- nonviolent crimes, including shoplifting. Crime lab directors warn that analyzing these samples allows them less time to test DNA from crime scenes and serious criminals, leaving offenders free to prey on new victims.

The expansion of DNA collection laws has been promoted by a lobbying firm with close ties to both the Justice Department and to companies that profit directly from increased DNA testing, a ProPublica investigation has found.

The firm, Gordon Thomas Honeywell Governmental Affairs, lobbies the Justice Department and lawmakers on behalf of the world's leading producer of DNA testing equipment. Despite that relationship, the Justice Department awarded Gordon Thomas Honeywell a no-bid grant in 2002 to do a key study on backlogs that has helped shape the government's DNA policies -- policies that have benefitted the firm's private clients. * * *

As federal DNA laws ramped up, states expanded their collection as well.

Fifteen states now collect DNA upon arrest, compared with only two in 2002. More than 30 require samples from some juveniles and in 34 states, some people convicted of misdemeanors, including shoplifting, must submit to testing. Gordon Thomas Honeywell has lobbied lawmakers on behalf of its DNA clients in at least five of those states, including Washington, where the firm is based.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Law

Courts - Blogging about cases pending before the Supreme Court

From Howard Bashman's How Appealing this morning:

In the April 2009 issue of the Stanford Law Review: Rachel C. Lee has an interesting note titled "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era."
The ILB has taken a look at the SLR note. Here is the summary:
Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty—they are already capable of having a substantial impact on Supreme Court litigation. Events surrounding the recent decision in Kennedy v. Louisiana demonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court’s decisions. Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument— potentially a crucial time in the Court’s decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications. The Note concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Thus, the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues.
Oddly, the summary does not appear to encompass the option presented on page 36 of the paper:
Sometimes, the best response to troubling speech is for the audience to “avert[] their eyes.” If the Justices do not read ex parte blog posts, the impartiality of the justice system will be preserved. Although no one dictates rules to the nation’s highest court, it could undertake the task of ex parte regulation itself, either by subscribing to the Code of Judicial Conduct or by adopting internal practices to encourage adherence to a similar ex parte principle. Law clerks at the Court are already reputedly asked to sign a pledge of confidentiality, and surely the Justices have other expectations of their clerks’ conduct. Clarifying that deliberately viewing blog posts concerning pending cases is unacceptable in chambers—and announcing publicly that the Justices have done so, both to remove the incentive for advocates to post and also to reduce the public perception of unfairness—would be a simple and largely effective answer to the ex parte blogging problem. Such self-imposed discipline would also have the advantage that it could also extend more broadly to cover material from law reviews and newspapers as necessary, without triggering concerns about unconstitutional restrictions on speech.
Indiana's Supreme Court in 2008 adopted Ind. Code of Judicial Conduct Rule 2.9(C):
RULE 2.9: Ex Parte Communications * * *

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control. * * *

Comment [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Courts in general

Law - "More States Start Pension Inquiries "

Mary Williams Walsh has a long story today in the NY Times examining fraud related to state pension fund investment across the county. Problems in New York, Texas and New Mexico are featured. Some quotes:

The sprawling investigation into New York’s pension investments hints at a much bigger problem than the handful of indictments so far would suggest.

What started as an investigation by the New York attorney general, Andrew M. Cuomo, into the state comptroller’s office — where Mr. Cuomo says favors were being exchanged for contracts to invest pension money — has mushroomed into a broad look at more than 100 firms by attorneys general in at least 30 other states.

A survey of practices across the country portrays a far-reaching web of friends and favored associates: political contributors, campaign strategists, lobbyists, relatives, brokers and others, capitalizing on relationships and paying favors. These influential figures can determine how pension funds are invested, as well as state university endowments, municipal bond proceeds, tobacco settlement funds, hurricane insurance pools, prepaid tuition programs and other giant blocks of public money.

“What has developed is a corrupt system, where Wall Street, various fiduciaries, politicians and corporate managers are draining America’s savings,” said Frederick S. Rowe, a hedge fund manager who serves on the Texas Pension Review Board, an oversight body. * * *

Investing public money on the basis of political considerations, rather than merit, heightens the risk of waste and loss, an urgent issue given the market losses of the last year. In 2007 the Government Accountability Office studied a group of pension funds known to be advised by consultants with conflicts of interest, and found their average yearly investment returns were 1.3 percent lower than those of other pension funds. That may sound small, but it can severely erode a fund over time because the losses multiply. * * *

In recent weeks, the New York comptroller and officials in other states have issued rules barring the use of intermediaries — often called placement agents — who are paid by money managers to open doors and help them win allocations from state and local governments. But even those restraints, long resisted, may not work well. Across the country, an examination of practices suggests that time and again pension officials are making poor investment choices and incurring losses because personal connections skew their decision-making. * * *

The New Mexico council recently disclosed that a top fund-raiser and political ally of the governor, Marc Correra, was paid a placement fee by the investment firm that sold the toxic mortgage securities criticized by Mr. Foy. The records also show that Mr. Correra has been paid roughly $11 million as the placement agent for more than 20 other investments — all private equities, hedge funds and complex structured debt — that have come through the investment council’s door since Governor Richardson took office in 2003.

Investments like those promoted by Mr. Correra, called alternative investments, are controversial for public investment funds to invest in because there is not a ready market for them should the government suddenly need money. They are hard to value, too, and they carry higher risks in the pursuit of higher returns. The investment firms that offer them tend to earn much higher fees, which means a bigger cut for the placement agents.

Mr. Correra’s lawyer, Ronald L. Rubin, said his client earned his fees through hard work and believed he had complied with all the rules. “He wants to follow the law,” said Mr. Rubin, with the firm of Tannenbaum, Helpern, Syracuse & Hirschtritt in New York.

Governor Richardson has suspended new investments in private equity firms, hedge funds and other alternatives.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to General Law Related

Ind. Courts - Still more on: A Marion County public defender caught in child solicitation sting

Updating this ILB entry from Feb. 19, 2008, Jon Murray reports today in the Indianapolis Star:

A former Marion County public defender was sentenced to two years in prison today for child solicitation.

Ryan W. Snyder, 30, was caught in an Internet sex sting in February 2008. He showed up to a 7/11 store at Southport Road and McFarland Avenue for a planned meeting after a sexually tinged online chat with an investigator posing as a 15-year-old girl named “Mandy,” according to a probable cause affidavit.
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Snyder pleaded guilty to the Class C felony; his attorney, James Voyles, requested probation or another alternative to prison, noting that he had undergone extensive counseling. But Marion Superior Court Judge Mark Stoner dwelled heavily on Snyder’s yearlong position as a public defender before his arrest. * * *

The Public Defender Agency terminated Snyder’s employment after his arrest. He will have to register as a sex offender, and Voyles said attorney disciplinary action is pending with the Indiana Supreme Court.

Posted by Marcia Oddi on Thursday, May 07, 2009
Posted to Indiana Courts

Wednesday, May 06, 2009

Ind. Law - "Daniels OKs online voter registration"

Patrick Guinane is reporting this evening in the online NWI Times:

Registering to vote in Indiana soon will be just a few clicks away. Gov. Mitch Daniels on Wednesday signed a new law authorizing Secretary of State Todd Rokita to begin offering online voter registration in July 2010. That means the new option will be available prior to the November general election.

"I'm pleased our representatives in the General Assembly recognize that we can use online tools to streamline the registration process and make voting more convenient and attractive," Rokita, a Munster native, said in a statement. "Because of the technology we have, coupled with our state's Photo ID law, we can offer online registration and maintain, even enhance, the integrity of our elections."

That bill is HEA 1346. The Governor's Bill Watch page does not yet reflect the Governor's action on HEA 1346.

A story yesterday by Deanna Martin of the AP described both HEA 1346 and the other big election law bills pending before the Governor -- SB 209, which deals with provisional ballots and voting centers, the subjects of litigation last fall.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Indiana Law

Ind. Law - More bills received by the Governor

The 2009 Bill Watch on the governor’s Web site has just been updated. Eighty-three bills were received and 33 bills were signed by the governor this afternoon.

Among those received are three the ILB has been following:

  • HEA 1468 - Animal cruelty and commercial dog breeders
  • HEA 1483 - Off-road vehicles, farm wagons, and golf carts
  • HEA 1491 - St. Joseph Superior Court Judges
The Governor has until Wed., May 13th to act on bills he received today.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Indiana Law

Courts - More on "A Good Time to Be a Bankruptcy Lawyer"

Updating this ILB entry from April 17th, Nathn Koppel writes today in the WSJ Law Blog, in an entry that begins:

Bankruptcy lawyers are fat and happy these days; that much we have documented.

But are judges to blame for the fact that bankruptcy lawyers are earning such big bucks? Yes, according to a study out today from UCLA Law professors Lynn LoPucki and Joseph Doherty.

“Meaningful objections to fee requests are few, and judges are shirking the duty to review fees absent objection,” the authors write. From 1998 to 2007, according to the study, bankruptcy professional fees increased more than 10% annually; more than twice the rate of inflation.

The problem, according to the study, is that judges routinely allow illegal fee practices in public-company bankruptcies.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Courts in general

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

Supplementing this ILB entry from April 30th on the COA's decision April 16th in the case of Moore v. Moore, the ILB has now obtained copies of the Appellant and Amicus briefs.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Ind. App.Ct. Decisions

Law - "Gay-rights activists have moved remarkably close to their goal of making same-sex marriage legal throughout New England just five years after Massachusetts became the first state in the nation to allow it"

Earlier today Abby Goodnough and Katie Zezima of the NY Times reported:

AUGUSTA, Me. — Gay-rights advocates moved remarkably close to their goal of making same-sex marriage legal throughout New England on Tuesday, when the Maine House of Representative voted to legalize such unions.

Supporters of same-sex marriage have won victory after victory this spring, with the legislatures of Vermont, New Hampshire and now Maine embracing it. The region is close to offering such marriages full support; Massachusetts was the first state in the nation to let gay couples marry in 2004, and Connecticut began allowing same-sex marriage last fall.

But in Maine and New Hampshire, the governors, both Democrats, will be pivotal in determining whether same-sex marriage proponents succeed in winning over an entire region of the country. Neither Gov. John Baldacci of Maine nor Gov. John Lynch of New Hampshire has made his intentions public. Both men opposed same-sex marriage in the past but have indicated they might be reconsidering.

No governor has yet signed a same-sex marriage bill that was not the result of court ruling. Gov. Jim Douglas, a Republican, vetoed a bill in Vermont last month, and the Legislature then enacted it after an override. And Gov. Arnold Schwarzenegger, also a Republican, vetoed a similar bill in California in 2005.

Supporters of the measures probably do not have enough support to override a veto in Maine or New Hampshire.

With the movement enjoying momentum from the string of recent victories — including the Iowa Supreme Court’s decision last month that same-sex marriage should be legal there — Mr. Baldacci and Mr. Lynch are facing considerable pressure from advocates and from their own party, which increasingly supports same-sex marriage.

Mr. Lynch will have five days to make a decision after the bill reaches his desk; Mr. Baldacci will have 10.

In California, where the State Supreme Court may rule this week on whether a voter-approved ban on same-sex marriage is constitutional, gay-rights advocates are optimistic even though many expect the ruling to uphold the ban.

The next state to debate same-sex marriage will probably be New York. Gov. David A. Paterson, a Democrat, introduced a marriage bill last month and the State Assembly, which strongly supports it, will probably take it up next week. The bill’s fate in the Senate is less certain. * * *

After the Senate’s vote last week, Mr. Lynch restated his belief that the state’s two-year-old civil-union law provided sufficient rights and protections to gay couples. But he did not repeat an earlier statement that marriage should be only between a man and a woman.

While the Iowa decision gave supporters of same-sex marriage an important first victory in the nation’s heartland and a few other states are considering legislation this year, New England remains the nucleus of the movement.

A NY Times update this afternoon is headlined: "Maine Governor Signs Same-Sex Marriage Bill ." Some quotes:
BOSTON — Gov. John Baldacci of Maine on Wednesday signed the same-sex marriage bill passed by the State Legislature, saying he had reversed his position on such marriages after deciding it was a matter of equal protection under the state’s Constitution. * * *

[Meanwhile, New Hampshire Governor Lynch] will have five days to make a decision after the bill reaches his desk. Several political observers have guessed that Mr. Lynch, who might run again, would let New Hampshire’s become law without his signature, as state law permits.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

[Note: Links now fixed. Sorry.]

For publication opinions today (0):

NFP civil opinions today (1):

Aaron Israel v. Evelyn Ridley-Turner, Craig Hanks, et al. (NFP)

NFP criminal opinions today (10):

Leonard D. Reed v. State of Indiana (NFP)

Samuel L. Pinkston v. State of Indiana (NFP)

Timothy Miller v. State of Indiana (NFP)

Stephen Gaskey v. State of Indiana (NFP)

Willie Lacy v. State of Indiana (NFP)

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

Joseph Ra v. State of Indiana (NFP)

James Johnson v. State of Indiana (NFP)

Ronrico D. Poindexter v. State of Indiana (NFP)

Terra Garrett v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - And yet another NFP COA decision reclassified

Updating this ILB entry from May 2nd, which began:

The ILB earlier this year began keeping an eye on NFP opinions reclassified as "for publication" by the Court of Appeals, via Ind. Appellate Rule 65(A).
Another COA NFP has been reclassified, the March 13th opinion in the case of Ford Motor v. Estate of Sally Moore.

In this case, the motion to reclassifiy as FP was opposed. Here are the relevant docket entries:

  • 3/13/09 2009 TERM
    REVERSED----------BAILEY, J.
    BRADFORD, J. CONCURS
    RILEY, J. DISSENTS WITH SEPARATE OPINION
    MEMORANDUM DECISION/NOT FOR PUBLICATION
    28 PAGES KM
  • 4/09/09 APPELLEE'S MOTION TO PUBLISH MEMORANDUM DECISION (6) CERTIFICATE OF SERVICE (6) BY MAIL 4/9/09
  • 4/13/09 APPELLEE'S PETITION FOR TRANSFER (9)
    CERTIFICATE OF SERVICE (9) BY MAIL 04/13/09. **SALLY MOORE** EF 04/13/09
  • 4/27/09 APPELLANT TRW VEHICLE SAFETY SYSTEMS INC.'S OPPOSITION TO APPELLEE SALLY MOORE'S MOTION TO PUBLISH (6) CERTIFICATE OF SERVICE (6) BY MAIL 04/27/09.
  • 4/27/09 FORD MOTOR COMPANY'S RESPONSE TO PLAINTIFF'S MOTION TO PUBLISH (6) CERTIFICATE OF SERVICE (6) BY MAIL 04/27/09.
  • 5/01/09 ISSUED THE ENCLOSED ORDER:
    HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
    APPELLEE'S MOTION TO PUBLISH MEMORANDUM DECISION IS GRANTED. THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON MARCH 13, 2009, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION, IS NOW ORDERED PUBLISHED
    FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
    RILEY, BAILEY, BRADFORD, J.J., CONCUR. KM

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Justice Ginsburg: Court needs another woman"

Joan Biskupic of USA TODAY reports, in a lengthy story today that begins:

WASHINGTON — Three years after Justice Sandra Day O'Connor left the Supreme Court, the impact of having only one woman on the nation's highest bench has become particularly clear to that woman — Ruth Bader Ginsburg.

Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.

"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

As Justice David Souter prepares to retire at the end of the term this summer, the significance of Ginsburg's position as the nine-member court's only woman has become a point of broad discussion. President Obama is under pressure from groups such as the National Women's Law Center to nominate another woman.

In interviews with USA TODAY before Souter's retirement announcement Friday, Ginsburg said the court needs another woman. "Women belong in all places where decisions are being made. I don't say (the split) should be 50-50," Ginsburg said. "It could be 60% men, 40% women, or the other way around. It shouldn't be that women are the exception."

Since O'Connor's departure in 2006, oral arguments and the justices' behind-the-scenes discussions on how disputes should be resolved have had a different tone. In the strip-search case and others this term, Ginsburg has revealed a woman's point of view that was strikingly at odds with those of many of her colleagues.

Ginsburg dominated oral arguments in an important case involving alleged discrimination related to pregnancy leaves. She was openly frustrated that some of her male colleagues, in her view, might not have understood the discrimination women face on the job.

She said the arguments in that dispute echoed those of a 2007 case involving Lilly Ledbetter, a 19-year worker at a Goodyear tire factory in Alabama who alleged that her pay dropped over time compared with men who had equal or less seniority. In that case, the court — with Ginsburg vigorously dissenting — narrowly ruled that women could not sue for pay inequities resulting from sex discrimination that had occurred years earlier.

Oral arguments in the pregnancy case were "just, for me, Ledbetter repeated," Ginsburg told USA TODAY, adding that her colleagues showed "a certain lack of understanding" of the bias a woman can face on the job.

In the justices' private conferences, during which they preliminarily discuss how they will vote on a dispute, Ginsburg said she feels the absence of O'Connor, who was the first woman on the court. O'Connor retired to care for her husband, John, who has Alzheimer's.

"At the conference, she spoke long before I did," Ginsburg said, referring to the court's pattern of seniority for discussion of a case. Noting O'Connor's forceful presence, Ginsburg added, "She is not an on-the-one-hand, on-the-other-hand person."

And, as I've written several times recently, the same rationale applies to the Indiana Supreme Court, which has no women.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Courts in general

Environment - "Experts weigh toxic threat from coal ash: New regulations may consider it hazardous waste"

James Bruggers of the Louisville Courier Journal has this story today, that begins:

LEXINGTON, Ky. -- A senior U.S. Environmental Protection Agency official told utility industry officials and academic researchers yesterday that national regulations on handling ash from coal-fired power plants are coming -- and they may include classifying the material as hazardous waste.

"That issue is squarely on the table," said Matt Hale, director of the EPA's Office of Solid Waste and Emergency Response -- due in part to the massive coal ash spill in eastern Tennessee last December, which spread 5.4 million cubic feet of ash sludge from a Tennessee Valley Authority power plant across 300 acres.

"The catastrophe at TVA changed the discussion and focused the discussion," Hale said, adding that it raised issues of ash impoundment stability for the first time within EPA, and renewed concerns over the toxic constituents of ash, such as arsenic and other heavy metals.

Hale's comments came at the start of the 2009 World of Coal Ash conference, organized by the American Coal Ash Association and the University of Kentucky's Center for Applied Energy Research.

The conference has drawn more than 500 people from 21 countries to discuss the management of a voluminous and global stream of waste -- more than 125 million tons annually in the United States alone.

It's an issue of huge importance in Kentucky and Indiana, which are more than 90 percent dependent on coal for electricity, and ranked first and third in production of such wastes in a 2006 federal study.

Industry officials have argued against a hazardous waste classification, saying it would greatly increase the costs of disposal to companies and customers and place a stigma on growing efforts to find commercial uses for ash, such as in concrete.

Here is a long list of earlier ILB entries about coal ash.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Environment

Courts - "National Mock Trial Competition Encounters a Real Legal Challenge "

The ILB on March 31st posted this entry on the National High School Mock Trial Competition, headed "Kentucky students' court operates just like real thing." Today the NY Times reports that the competition has run into trouble. From the story by Robbie Brown:

ATLANTA — The nation’s top high school mock trial competition has become an actual legal battleground.

Earlier this spring, the Maimonides School, an Orthodox Jewish day school in Brookline, Mass., won the state mock trial championship — and with it a coveted spot in the prestigious national competition in Atlanta this weekend. But the finals of the tournament fall on Saturday, and the students do not compete on the Sabbath.

When tournament organizers refused to tweak the schedule, the students’ parents and school officials did what supporters of any attorney-in-training might do: they hired a lawyer, Nathan Lewin, a renowned litigator who has tried cases before the United States Supreme Court. Mr. Lewin filed a complaint of religious discrimination with the Department of Justice, which promised to investigate.

The Anti-Defamation League also sent a letter of complaint to the National High School Mock Trial Championship, and parents expressed their concerns to Georgia’s attorney general and the state bar association, the host of the competition.

“We care about our children getting to participate,” said Jeffrey J. Kosowsky, a consultant whose son, Michael, is a team captain. “We don’t care about suing, but we want to make sure that they take this seriously.”

The students, whose school had never won a state championship in any activity, were crestfallen when told of the national scheduling problem. But they were also excited about their new role.

“The idea of a mock trial being in the middle of a real legal battle is pretty cool,” said Leah Sarna, 17, another captain.

Her father, Jonathan D. Sarna, a well-known professor of Jewish history at Brandeis University, said the team was learning a legal lesson about “what it means to be a minority group.”

The team will compete in the tournament on Friday but will not be able to win the championship.

In 2005, another Jewish school competed in the tournament, which was held in North Carolina that year. The schedule was changed for the team, but tournament organizers later adopted a rule against making special exceptions.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Courts in general

Ind. Decision - Charges dismissed as a result of last week's Supreme Court decision

Anna Rochelle of the Greene County Daily World has a report today on the impact of last week's (April 30th) Supreme Court decision in the case of Richard P. Wallace v. State of Indiana. Some quotes:

The case against Robert "Bobby" Patterson of Bloomfield was dismissed Tuesday after both the defense and the prosecution had filed motions in Greene Superior Court requesting the case be dropped.

Patterson was charged in late March with failure to register as a sex or violent offender, a class D felony.The 62-year-old Patterson is considered a violent offender because of his conviction on Nov. 12, 1981, of the murder of 15-year-old Kathy Sanford in Bloomfield in late January, 1980. At the age of 35, Patterson was sentenced to 40 years in prison. With "good time" credit, he completed his sentence and was released from prison in 2002.

Patterson current offense was charged under the Indiana Sex and Violent Offender Registration Act.

When this registration law was enacted, it only applied to sex offenders. In 2007, the law was amended to include violent offenders -- five years after Patterson was released from prison on the murder conviction.

Both motions for dismissal were prompted by an Indiana Supreme Court decision handed down last Thursday in a similar case involving Richard Wallace, a convicted sex offender. Patterson is a convicted violent offender. Both were required to register under Indiana law.

In both cases, they were charged, convicted and had served their sentence for their crime before the requirement for them to register was enacted. In Wallace's case, it was the requirement to register as a sex offender, in Patterson's, as a violent offender.

The defense motion to dismiss pointed out, "The Indiana Constitution provides that 'no ex post facto law ... shall ever be passed.'""Ex post facto" is a Latin term for "after the fact." A general explanation of an ex post facto law is a law that is retroactive, or that changes the consequences of a crime after the crime was committed.

In the Wallace case, he had already completed a sentence for child molesting before the Act was enacted. When the decision was made last Thursday, the court said Wallace's conviction violated the state constitution's prohibition of retroactive laws. * * *

The first motion to dismiss the Patterson case was filed Monday morning by Greene County Public Defender Alan Baughman who was appointed to represent Patterson.

The defense motion contended that the law under which Patterson has been charged, the Indiana Sex and Violent Offender Registration Act, subjected him to punishment which is prohibited under the Indiana Constitution.

The second motion was filed Tuesday by Greene County Deputy Prosecutor Cheryl Jackson-Stone.

The state's motion requested the court dismiss the case for the reason that it cannot proceed with prosecution due to the recent Indiana Supreme Court decision in Wallace v. State.

On Tuesday morning, Prosecutor Jarrod Holtsclaw said he had read the Wallace decision.

"We have no choice," said Holtsclaw. "The Indiana Supreme Court does have the final say on Indiana laws. Unless it's taken to the United States Supreme Court, we have to abide by the Indiana Supreme Court's decision." * * *

Holtsclaw said most people in Indiana's judicial arena have been waiting on this decision for quite some time.

Not only does the ruling affect the Patterson case, but it is expected to affect many other cases in the state.

"This could affect hundreds, maybe thousands, of other cases. We're trying to see how many other cases in Greene County will be affected. I've asked the Public Defender's Office to take a look at other cases," said Holtsclaw.

Posted by Marcia Oddi on Wednesday, May 06, 2009
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions

Tuesday, May 05, 2009

Ind. Decisions - Supreme Court issues one today

In Samuel Hardley v. State of Indiana, an 11-page, 3-2 opinion, Justice Dickson writes:

To address conflicting opinions from the Court of Appeals and to consider the import of recent decisions of this Court, we grant transfer and hold that the State may challenge the legality of a criminal sentence by appeal without first filing a motion to correct erroneous sentence, and that such appeal need not be commenced within thirty days of the sentencing judgment. * * *

Shepard, C.J., and Sullivan, J., concur.
Boehm, J., dissents with separate opinion in which Rucker, J., concurs. [The dissent begins] I respectfully dissent. The majority holds that the State may challenge what it contends to be an illegal sentence by raising the issue in its appellee’s brief in the Court of Appeals, even though the issue was never presented to the trial court. I agree that longstanding precedent permits the State to raise sentencing errors in a cross-appeal of a defendant’s direct appeal. Stephens v. State, 818 N.E.2d 936, 940 (Ind. 2004) (citing Rogers v. State, 270 Ind. 189, 191, 383 N.E.2d 1035, 1036 (1979)); Ind. Appellate Rule 7(A). However, I would not permit the State to appeal an erroneous sentence without first raising the issue in the trial court.

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Re the Appellate Clerk's docket, has the other shoe finally dropped?

This ILB entry from April 1st began:

Almost exactly one year ago, on April 2, 2008, the ILB posted a note from a attorney-reader, raising the alert that the attorney's "cases that deal with juvenile delinquency matters and TPR/CHINS matters" has suddenly begun disappearing from the Appellate Courts' online docket, "even the case's very existence."
This entry from Oct. 8, 2008 stated:
Today the Supreme Court has filed two orders that hopefully will put the Clerk's Docket back the way it was.
But in the entry from April 1st of this year, the ILB noted that things were not "back the way they were before the Clerk's office started removing them," and continued:
Hopefully, the Clerk's docket will be restored in full, except for the substitution of initials for party names, within the next few days so that cases are treated consistently. Right now, someone doing a search may not even know that some cases are missing, as there is no docket entry at all, and no explanation of a rationale.
I wrote to Clerk of the Courts Clerk Kevin Smith. Here is an edited version, to see the whole go to the April 1st entry:
ILB - Second, are you planning to restore all the juvenile, etc. dockets that were removed last year?

KS - As for the chronological case summaries (CCSs) in juvenile and adoption appeals that were taken off-line last year to bring our appellate courts' dockets into compliance with the requirements of Administrative Rule 9(G)(1)(b)(i), (vi), and (vii), appellate CCSs are now publicly available in all juvenile and adoption appeals that were pending as of, or filed on or after, January 1, 2009 (the effective date of Admin. R. 9(G)(4)(a)(i)).

Re #2, should I read your answer to "Second, are you planning to restore all the juvenile, etc. dockets that were removed last year? to mean that only those that were pending as of, or filed on or after, January 1, 2009 have been restored, and that any others that were removed will not be restored?

KS - Marcia, I will have to check with the Supreme Court to see if it contemplates that sort of endeavor with regard to its understanding of compliance with Admin. R. 9(G)(4)(a)(i).

Well, the answer is now in, and it appears to be "no." I have received a copy of a Supreme Court Order filed April 30, 2009 which states in part:
We interpret the requiremnts of Administrative Rule 9(G)(4)(a)(i) to apply only to appeals that were pending as of or filed after January 1, 2009, and not to appeals that were final before January 1, 2009

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Indiana Courts

Ind. Law - "It's the Law: Part 2 of State law allows most tattoos, body piercings"

Ken Kosky's NWI Times' "It's the Law" column Monday looked at Indiana's health regulations which govern tattoo parlors and body piercing facilities. Some quotes:

Although Indiana law allows tattoo artists and body piercing workers to provide their services to adults and to children with a parent or guardian's permission, there are several state health regulations that workers are required to follow.

Porter County Health Department Administrator Keith Letta said his staff has been visiting the estimated 12 to 15 businesses in Porter County to make sure they are aware of the rules that govern them and to inspect their operations.

"We are quite pleased with most of them. Most of them are doing a pretty good job," Letta said.

The Indiana State Department of Health's tattoo and piercing rule states that facility operators must provide bloodborne pathogen training and infectious waste training to all tattoo artists and body piercers or other employees who are at risk for contact with blood or other infectious materials. Facility operators also required to make sure employees have and use personal protective equipment.

Facility operators must also develop a written policy the requires the use of universal precautions, requires disinfection or sterilization of reusable items, requires safe handling of infectious waste and provides punishment for violating the policy.

The tattoo artists, body piercers and other employees are required to complete bloodborne pathogen and infectious waste training. If there is a risk of contamination from blood or other infectious materials, they area also required to wear a protective layer of clothing, masks in combination with eye protection and disposable gloves.

Only single-use razors, single-use stencils, single-use articles for drawing onto the skin and single-use needles and dyes must be used. Reusable equipment must be sterilized or disinfected. Tattooing and body piercing can't be done in any rooms that serves as living quarters or that opens directly into living quarters. Animals are prohibited in work areas unless they are police dogs or guide dogs. Eating, drinking and smoking are not allowed in work areas.

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Indiana Law

Environment - "Further briefing due in pollution case"

This item posted by Lyle Denniston of SCOTUSBlog will be of interest to environmental lawyers -- it deals with the kind of permit required for dumping “dredged or fill” dirt.

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Metro Health Professionals, Inc. v. Chrysler, LLC, a 13-page opinion, Judge Brown writes [emphasis by ILB]:

Metro Health Professionals, Inc. (“MHP”), appeals the trial court‟s grant of summary judgment to Chrysler, LLC. MHP raises one issue, which we revise and restate as whether the trial court erred by granting Chrysler‟s motion for summary judgment and denying MHP‟s motion for summary judgment. We reverse. * * *

This case requires that we interpret the Indiana Motor Vehicle Protection Act. * * *

The Indiana Motor Vehicle Protection Act, commonly known as the Lemon Law, is found at Ind. Code §§ 24-5-13-1 to -24. * * *

MHP argues that the nonconformity in this case was subject to repair four times but continued to exist. MHP argues that the trial court therefore erred when it concluded that the Lemon Law required “that the nonconformity continue to exist after each additional repair attempt that follows a reasonable number of repair attempts” under Ind. Code § 24-5-13-15(a). Appellant‟s Brief at 9. Chrysler, on the other hand, argues that the grant of summary judgment in its favor is proper because MHP failed to show that the nonconformity continued to exist after its fifth attempt at having the vehicle repaired. Indiana courts have not yet addressed this issue. * * *

We hold that the plain language of Ind. Code § 24-5-13-15(a)(1) obligates a consumer to demonstrate that the vehicle was subject to repair at least four times and that the same defective condition remained unresolved after the fourth attempt. Therefore, once a consumer has met the four-repair threshold and the defect remains unresolved, the requirements of Ind. Code 24-5-13-15(a)(1) have been met. The requirement that the defect “continues to exist” is another way of saying that the fourth repair attempt was unsuccessful. * * *

For the foregoing reasons, we reverse the trial court's grant of the motion for summary judgment filed by Chrysler and the trial court's denial of MHP's motion for summary judgment and enter summary judgment in favor of MHP.

In Jacobsville Developers East, LLC v. Warrick County, Indiana, et al, a 10-page opinion, Judge Crone writes:
Jacobsville Developers East, LLC (“JDE”), appeals the trial court’s dismissal of its complaint for inverse condemnation against the Warrick County Board of Commissioners (“County”) and the Warrick County Area Planning Commission (“APC”). We affirm.

The dispositive issue is whether the trial court erred in dismissing JDE’s inverse condemnation action for lack of subject matter jurisdiction. * * *

In sum, when the APC denied JDE’s first plat application on the basis that the fifty-foot strip was not dedicated, JDE had a potential Dolan claim for excessive exaction and not a claim for an actual, uncompensated taking. However, JDE never went before the certiorari court to attempt to establish an excessive exaction. Instead, it sought approval of a second application in which it included the very dedication it now claims to constitute an unconstitutional taking. “[T]he exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Williamson County, 473 U.S. at 193 (emphases added). Therefore, in failing to fully pursue the judicial review remedy available in the certiorari court, JDE failed to exhaust its available administrative remedies. As a result, the trial court lacked subject matter jurisdiction to hear JDE’s substantive exaction claim. Accordingly, we affirm the trial court’s dismissal of JDE’s complaint.

NFP civil opinions today (1):

The Term. of the Parent-Child Rel. of S.S., M.H., and D.C., and Sharon C. and David S., Albert H. and Rick C. (NFP)

NFP criminal opinions today (7):

Nathan Brock v. State of Indiana (NFP)

Jeremy C. Greene v. State of Indiana (NFP)

Charlotte Saunders v. State of Indiana (NFP)

Terry Eldridge v. State of Indiana (NFP)

Juan C. Gamboa v. State of Indiana (NFP)

Sharman Marlon Pearson, II v. State of Indiana (NFP)

Randal Barnes v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Traffic Court in the news today

Jon Murray of the Indianapolis Star has a story today about the scrapping of the plan to move the court "to a new court complex near Lafayette Square Mall ." The current location is "on East 10th Street at Post Road, inside a police training center." Murray also has a side-bar about the traffic court scene:

The first three months under new Judge Bill Young brought stiffer fines, jam-packed proceedings and a gruff atmosphere to Marion County's traffic court.

» Working through the backlog: Double- and triple-booked court sessions have ended. Such sessions enabled the court to work through a backlog, Young said, and now the staff is setting court dates six weeks out from the time drivers contest their tickets, instead of several months.

» High volume: The court, 9049 E. 10th St., is plagued by crowding. It handles 200,000 infractions and misdemeanors a year. Last year, it collected $23.2 million in fines. Most infractions are paid without a visit to the courtroom.

» In search of a home: Officials had hoped to relocate to a complex (right) near Lafayette Square Mall.

The eventual move, Young said, "will help with a lot of people's attitudes. This is not a pleasant place."

Murray had an earlier story on the traffic court, on Feb. 22nd - see this ILB entry headed "Judge gets tough in Marion County traffic court."

Also of interest is this blog entry today by Paul Odgen, headed "Marion County Traffic Court Violates the Law?"

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Indiana Courts

Courts - "Sixteen Months of Rulings Down the Drain at the NLRB?"

Recall this ILB entry from May 1st, headed "Nearly simultaneous, conflicting Circuit Court NLRB opinions issued this afternoon." It included this quote from an AP story:

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.
Yesterday the WSJ Law Blog reported at length on the DC Circuit ruling. A quote from the end of the entry:
We checked in with Proskauer Rose’s Peter Conrad, a partner and labor & employment specialist and the author of this Proskauer client memo on the ruling.

Conrad said that while the impact of the ruling was potentially quite far-reaching, the rationale of it makes sense. “The law is fairly clear,” says Conrad. “It says that among other things, a quorum of the board shall require three members. Other courts — namely the First Circuit and the Seventh Circuit — have ruled otherwise, but I don’t think those courts’ analysis is as persuasive.”

Conrad adds that, at this point, there exist more unknowns than knowns about what the ruling means, though he predicts that the ruling could trigger an assessment of all 400 or so cases handled by Liebman and Schaumber to see where they stand. “My guess is that they’ll leave alone all those in which the GC of the NLRB failed to prevail,” but that still presumably leaves a lot of other cases. “If you’re an employer who lost, theoretically you’d now have the wherewithal to go running to the D.C. Circuit” to appeal, added Conrad.

Nor was Conrad sure how the NLRB would go forward, with only two members. “Will they continue to issue opinions?” he asks. “I’m just not sure. Everything’s been thrown up in the air.”

[More] See also this item from The Blog of Legal Times.

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Courts in general

Courts - "The tricky sex offender case that could trip up one of the judges on the short list to replace Souter"

Remember the 2004 case of John Doe v. City of Lafayette? Here, from Feb. 24, 2005, is an ILB entry with links to earlier entries in the case, Here is the introduction to the dissent in the 8-3 en banc opinion of the 7th Circuit, issued July 30, 2004:

WILLIAMS, Circuit Judge, with whom ROVNER and DIANE P. WOOD, Circuit Judges, join in dissenting. John Doe was banned for life from all park property in the City of Lafayette, Indiana—including a golf course, sports stadium, and city pools. As this ban violates Doe’s First Amendment right to freedom of thought by impermissibly punishing him for those thoughts, I respectfully dissent.
Judge Wood is now among those being mentioned for nomination to the SCOTUS. Emily Bazelon last evening posted in Slate an outstanding three-page analysis of the 7th Circuit opinions in Doe, and Judge Woods' part in them. Some quotes:
The district judge [Sharp] who got the case ruled in favor of the city, based on Lafayette's interest in protecting the health and safety of its residents. A three-judge panel of the 7th Circuit heard the case on appeal. In a 2-1 split, Wood and Williams reversed the district court, finding that the decision to ban Doe from the public parks violated his First Amendment rights, while Judge Kenneth Ripple dissented. Williams wrote the majority opinion. Eleven judges of the 7th Circuit then reheard the case. (This second round is called en banc.) In an 8-3 ruling, the en banc majority reversed Williams' initial ruling. In this second round, Wood and Williams dissented, along with Judge Ilana Rovner. Ripple's dissent became the majority opinion, and Posner and Easterbrook joined it, along with five other judges.

Ripple's majority opinion for the en banc court frames the city's ban as punishing Doe not merely for his thoughts, but for "thought plus conduct." Ripple writes:

The inescapable reality is that Mr. Doe did not simply entertain thoughts; he brought himself to the brink of committing child molestation. He had sexual urges directed toward children, and he took dangerous steps toward gratifying his urges by going to a place where he was likely to find children in a vulnerable situation.

To characterize the ban as directed at 'pure thought' would require us to close our eyes to Mr. Doe's actions. ... We cannot ignore, nor can we say the law somehow commands the City to ignore, Mr. Doe's pedophilia and the history of his battle with that affliction.

Williams' dissent, on the other hand, points out that this is "a rare case where thoughts, as distinct from deeds, become publicly known." Williams notes: "It is clear on this record, that absent Doe's thoughts (and arguably his status as a pedophile …) the City would be uninterested in Doe's decision to go to the park that fateful day." We don't normally restrict people's liberties based on their thoughts, Williams argued, and we shouldn't; this is "a cornerstone of the criminal justice system," and it's a crucial limit on government power.

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Courts in general

Ind. Courts - "A case for veto of court-expansion bill"

The ILB has had a long list of entries on HEA 1491, the bill now pending the Governor's signature, that would change the method of selection of judges in St. Joe County, plus add a new sixth panel to the Indiana Court of Appeals.

Today, in a featured letter to the editor in the Indianapolis Star, Joel M. Schumm, a clinical professor of Law at the Indiana University School of Law in Indianapolis, who argues frequently before the Court of Appeals, makes a strong case against the addition of a sixth panel at this time:

Imagine a company does its job more efficiently than any similar company anywhere in the country. Its workload has remained steady over the last couple of years but has declined thus far in 2009. Employees might worry about downsizing in light of the tough economic times. Not in the world of government, though. It's time for a 20 percent expansion.

House Bill 1491 is government waste at its counterintuitive worst. At a price tag of more than $2 million each year, it adds three new judges and 16 new staff positions to the 15-judge Indiana Court of Appeals. This is the same court that is rightfully proud of being the most efficient appellate court in the country. The average age of pending cases fell from 1.6 months in 2007 to 1.1 months in 2008. The number of new cases filed increased by 0.2 percent (2,756 in 2008 compared to 2,748 in 2007). The legislature added five new staff attorney positions in 2007 to help with the caseload.

Regardless of staffing, appellate courts cannot process cases in much less than a month. The judge, with the help of a law clerk, must craft and revise an opinion, which must then be circulated to two other judges on the panel deciding the case. The case is then circulated to the entire court a week before it is issued.

Why increase the size of the most efficient appellate court in the country by 20 percent in the midst of one of the worst recessions in decades? The new judges would begin in 2011, which would allow Gov. Mitch Daniels an opportunity to make the appointments to a court currently occupied by 13 appointees of Democratic governors. The Indiana Constitution makes clear these appointments must be made "without regard to political affiliation," though. There is not a Democratic or Republican position in most types of cases, and judges of both parties take an oath to uphold the same Constitution. In a recent mayoral election appeal, a Daniels appointee sided with the Democratic candidate, while a Bayh appointee sided with the Republican candidate. That's how it should work.

But the larger question looms: What are these three new judges and 16 new staff members going to do if caseloads remain relatively flat, and the court is already processing cases as quickly as they come through the door? Wouldn't we all be better off if Daniels instead appointed 40 or 50 new teachers? There would be plenty of work waiting for them.

Daniels should veto this bill. The General Assembly can revisit the issue next year (or the year after) if caseloads skyrocket or workload slows the court even to third or fourth place out of 50 states.

Posted by Marcia Oddi on Tuesday, May 05, 2009
Posted to Indiana Courts

Monday, May 04, 2009

Environment - Supreme Court Curtails Superfund Liability [Updated]

The SCOTUS decision today in Burlington Northern & Santa Fe Railway v. United States is the topic of a brief entry by Jonathan Adler of The Volokh Conspiracy. Here is an AP story, headed "Shell not at fault in cleanup." It begins:

The Supreme Court says Shell Oil Co. cannot be held responsible for cleanup of a contaminated site owned by a defunct company simply because it delivered chemicals to the site.

The court, in a 8-1 decision Monday, also decided that railroad companies that leased the defunct company part of the land would have to pay for a small part of the cleanup.

[Updated at 4:38 PM] Adam Liptak of the NY Times now has a story on the ruling. A quote:
Shell argued that it could not be held responsible for the spills because it did not qualify under the relevant part of the Superfund law, which applies to companies that “arranged for disposal” of hazardous substances. Justice John Paul Stevens, writing for the majority in the 8-to-1 decision, said the statutory language applied only when companies took “intentional steps to dispose of a hazardous substance.”

“Shell’s mere knowledge that spills and leaks continued to occur” with each delivery, Justice Stevens continued, “is insufficient grounds for concluding that Shell ‘arranged for’ the disposal.”

In dissent, Justice Ruth Bader Ginsburg wrote that Shell was “well aware” that its deliveries “directly and routinely” resulted in spills and leaks for more than 20 years. She added that she would have placed the cleanup costs on a company “whose activities contributed to the contamination rather than on the taxpaying public.”

The decision also addressed the liability of two railroad companies that had leased land to the distribution business. There was no dispute that these companies were subject to Superfund liability. The question was whether they could be made to pay all of the cleanup costs or just a portion of them.

The trial judge limited the companies’ liability to 9 percent of the total. He based his calculations on how much land the companies owned, how long they owned it and where the bulk of the discharges happened. The United States Court of Appeals for the Ninth Circuit reversed the judge’s decision, saying those calculations were based on estimates. As a consequence, the appeals court said, the companies could be held liable for the cost of the entire cleanup.

The Supreme Court, in turn, reversed that decision, saying that apportionment of liability is appropriate so long as there is a reasonable basis for determining the contribution of each wrongdoer.

Justice Ginsburg dissented on this point, too. While she praised the trial judge’s “heroic labor,” she said the railroad companies should have been required to prove their comparative lack of responsibility. Instead, she wrote, the companies simply disclaimed all responsibility.

That is not how the adversary system is supposed to work, Justice Ginsburg wrote. She said she would have returned the cases, Burlington Northern and Santa Fe Railway Company v. United States, No. 07-1601, and Shell Oil Company v. United States, No. 07-1607, to the lower courts to allow the parties to litigate the apportionment issue.

Posted by Marcia Oddi on Monday, May 04, 2009
Posted to Environment

Ind. Decisions - Indiana COA decision remanded by SCOTUS today, in light of Arizona v. Gant

A reader has just sent me this note:

Today, SCOTUS granted certiorari in a case from the Indiana Court of Appeals and remanded the case back to the Court of Appeals "for further consideration" in light of SCOTUS's opinion last week in Arizona v. Gant, a Fourth Amendment case concerning searches incident to arrest. Interestingly, the Indiana case was a civil forfeiture case, not a criminal case. Here's a link to the order .
Here is the entry:
07-1167 MEISTER, VIRGINIA V. INDIANA, ET AL.
The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Court of Appeals of Indiana, First District for further consideration in light of Arizona v. Gant, 556 U.S. ___ (2009).
Here is what the ILB posted about the Court of Appeals opinion on April 27, 2007:
Virginia Meister v. State of Indiana and the City of Union City, Indiana - "Virginia Meister appeals the trial court’s judgment forfeiting her truck, which was seized after her son, John Wymer, drove her truck, was arrested for driving while suspended, and had methamphetamine in the truck." Affirmed.
The case was denied transfer 5-0 by our Supreme Court on Nov. 9, 2007. The next, and final, entry on the Clerk's docket is:
3/13/08 ****RECEIVED 03/19/08: LETTER FROM U.S. SUPREME COURT (1)
*PETITION FOR WRIT OF CERTIORARI WAS FILED ON JAN. 7, 2008 & PLACED ON THE DOCKET MARCH 13, 2008 AS NO. 07-1167. MS
Yesterday the ILB posted this entry about the Gant decision, headed "U.S. Supreme Court limits police searches; Southern Indiana prosecutors believe effects of decision will be minimal." Here is the April 21st ILB entry on the SCOTUS decision that day in Arizona v. Gant.

Posted by Marcia Oddi on Monday, May 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 1, 2009

Here is the Clerk's transfer list for the week ending May 1, 2009. It is three pages long.

_________

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, May 04, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Kevin S. Varner v. Indiana Parole Board, a 19-page opinion in suit brought by a pro se litigant, Judge Robb writes:

Kevin Varner, an inmate at Plainfield Correctional Facility, filed a pro se action for mandate requiring the Indiana Parole Board (the “Board”) to determine his parole eligibility based on a vote of all five Board members. The trial court summarily dismissed that action, either for lack of subject matter jurisdiction or pursuant to Indiana Code section 34-58-1-2(a), a statute requiring trial courts to prescreen the legal sufficiency of claims filed by pro se prisoners such as Varner. On appeal, Varner contends the trial court’s summary dismissal was improper because the relief he seeks – a five-member vote to determine his parole eligibility – is mandated by Indiana Code section 11-13-3-3(b).

For reasons stated below, we conclude the trial court’s summary dismissal was improper because it did not lack subject matter jurisdiction and because Varner’s mandate action states a claim upon which relief can be granted. We also elect to address Varner’s mandate action on its merits, concluding that because Indiana Code section 11-13-3-3(b) requires a five-member vote to determine his parole eligibility, he is entitled to the relief he seeks. Accordingly, we reverse the trial court and instruct it to enter judgment in favor of Varner and to grant him the relief he seeks. * * *

We note in closing that the State’s sole argument that the four-member vote is sufficient is based on the Board’s rules, specifically subsections (a)(3) and (4) of 220 Indiana Administrative Code 1.1-2-2. Those subsections state that “[t]hree (3) members of the board constitute a quorum,” 220 Ind. Admin. Code 1.1-2-2(a)(3), and that “[t]he board shall take no action upon any matter requiring a board action unless at least three (3) board members are in agreement on the action,” 220 Ind. Admin. Code 1.1-2-2(a)(4). However, we are aware of no proposition of law that permits an administrative agency to disregard a clear statutory obligation on the ground that its rules impose a lesser obligation. To the contrary, this court has repeatedly observed that an administrative rule may not trump a statute’s clear mandate. See Lee Alan Bryant Health Care Facilities, Inc. v. Hamilton, 788 N.E.2d 495, 500 (Ind. Ct.App. 2003) (“An agency, however, may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. Any regulation that conflicts with statutory law is wholly invalid.” (citation omitted)), clarified on other grounds on reh’g, 793 N.E.2d 229; Potts v. Review Bd. of Ind. Employment Sec. Div., 438 N.E.2d 1012, 1015-16 (Ind. Ct. App. 1982) (“Boards cannot enlarge or vary, by the operation of such rules, the powers conferred upon them by the Legislature, or create a rule out of harmony with the statute. If the rules are in conflict with the state’s organic law, or antagonistic to the general law of the state or opposed to the fundamental principles of justice, or inconsistent with the powers confer[r]ed upon such boards, they are invalid.” (citations and quotation marks omitted, correction in original)). We therefore reject the State’s argument that the Board’s administrative rules control its voting obligations.

In Nunn Law Offices v. Peter H. Rosenthal, a 13-page opinion, Judge Bradford writes:
Appellant-Petitioner Nunn Law Office (“Nunn”) appeals the trial court's award of
$1462.88 in attorney's fees in its petition for division of attorney's fees arising out of Nunn's
and Appellee-Respondent attorney Peter Rosenthal's successive representation of Joseph
Carpenter in Carpenter's personal injury action against Terry Rosengarten. Upon appeal,
Nunn claims that the trial court erred in failing to issue written findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52 and in basing its award upon quantum
meruit rather than upon Nunn's contingency fee agreement with Carpenter. We affirm.
E.D. v. State of Indiana - "The State did not provide evidence establishing whether the gun was in plain view, and there was no evidence to suggest that E.D. made incriminating statements regarding knowledge of the gun or that E.D. made furtive gestures. Accordingly, we reverse E.D.’s adjudication as a delinquent child for possession of a handgun without a license, a Class A misdemeanor if committed by an adult. Reversed. "

Keith Payton v. State of Indiana - "In summary, the delays chargeable to Payton totaled 136 days – 61 days for the delay from December 20 until February 19 to set a trial date, and 75 days for acquiescing in Andre‟s motion for continuance, which resulted in resetting the beginning of trial from July 11 to September 15. This means that, pursuant to Crim. R. 4(C) and (F), the State had 136 days after July 2, or until November 15, 2008, to bring Payton to trial. Inasmuch as trial was held on September 15-17, 2008, Payton was not denied his right to a speedy trial and the trial court did not err in denying his motion to dismiss on that basis. Judgment affirmed. "

NFP civil opinions today (2):

Term. of Parent-Child Rel. of D.B., et al; J.B. v. IDCS (NFP)

Daniel Hoagland, et al. v. Town of Clear Lake, Indiana, et al. (NFP) - Involves dispute between town and Hoagland re operation of a helicopter on the Hoaglands’ private property, which was located within the Town’s limits.

NFP criminal opinions today (5):

James Lomax v. State of Indiana (NFP)

Eric J. Hicks v. State of Indiana (NFP)

Bruce Todd Bowman v. State of Indiana (NFP)

Michael D. Burton v. State of Indiana (NFP)

Gary D. Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - "Deputies hunt for sex offenders who hide out on Web"

A companion piece to the story Saturday in the Fort Wayne Journal Gazette, reported by Rebecca S. Green, headlined "Rulings affect sex offender state registry," is this lengthy story today by reporter Green, titled "Online, a game of cat, mouse: Deputies hunt for sex offenders who hide out on Web." Some quotes:

Under 2008 changes to the laws governing Indiana’s Sex and Violent Offender Registry, offenders are required to provide local law enforcement with their online identities – e-mail addresses, chat room IDs and any social networking site identities, such as Facebook and MySpace. And state law prohibits sex offenders convicted of child solicitation and attempted child solicitation from ever being on social networking sites.

But enforcing the ban can be extremely difficult because, unlike a physical address, online identities and online addresses can be assumed and changed quickly, without anyone knowing. Free Internet sites offer little or no checks on the identities of those creating e-mail accounts, making it possible to create dozens of accounts using a myriad of fake names or other identifiers.

“It’s not impossible to enforce it, but it makes it difficult because we first have to know that they have an e-mail address,” [Allen County Sheriff’s Department Detective Jeff] Shimkus said. “It’s almost like an honor system.”

He likens it to speeding – hard to enforce when you can’t have an officer on every road, in this case every stop on the information superhighway.

“It’s difficult to enforce because we don’t have the technology or the right,” Shimkus said, adding that police officers cannot search a sex offender’s computer merely to look for e-mail addresses.

Garza’s recent arrest makes him the first in Allen County charged with failing to register his online addresses, Shimkus said.

But the detective has four other cases on his desk demanding his attention, in spite of the difficulty in policing this aspect of the registry, some generated by tips. “The public’s out there watching,” he said.

Posted by Marcia Oddi on Monday, May 04, 2009
Posted to Indiana Law

Environment - "Pollutants Scrubbed From Smokestacks Are Being Diverted Into Waterways"

Juliet Eilperin reports today in the Washington Post, in a story that begins:

Faced with new evidence that utilities across the country are dumping toxic sludge into waterways, the Environmental Protection Agency is moving to impose new restrictions on the level of contaminants power plants can discharge.

Plants in Florida, Pennsylvania and several other states have flushed wastewater with levels of selenium and other toxins that far exceed the EPA's freshwater and saltwater standards aimed at protecting aquatic life, according to data the agency has collected over the past few years. While selenium can be beneficial in tiny amounts, elevated levels damage not only fish but also birds and people who consume contaminated fish.

But the reason more selenium and metals such as arsenic are now entering U.S. waterways is because the federal government has pressed utilities to install pollution-control "scrubbing" technology that captures contaminants headed for smokestacks and stores them as coal ash or sludge. The EPA estimates that these two types of coal combustion residue -- often kept in outdoor pools or flushed into nearby rivers and streams -- amount to roughly 130,000 tons per year and will climb to an estimated 175,000 tons by 2015.

Posted by Marcia Oddi on Monday, May 04, 2009
Posted to Environment

Ind. Decisions - Upcoming oral arguments this week and next

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

  • None currently scheduled.

Next week's oral arguments before the Supreme Court (week of 5/11/09):

Thursday, May 14th

  • 9:00 AM - Cornelius Cooper v. State of Indiana - The Marion Superior Court revoked Cooper's probation, and several months later denied Cooper's motion to reconsider. In this appeal from the denial of the motion to reconsider, the Court of Appeals reversed and remanded, finding Cooper is entitled to a probation revocation hearing. Cooper v. State, 894 N.E.2d 993 (Ind. Ct. App. Oct. 6, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Oct. 6, 2008 COA opinion here, 2nd case.]

  • 9:45 AM - Clay City Consol. Sch. Corp. v. Ronna Timberman - Ronna Timberman and John Pipes II filed a child wrongful death action against the Clay City Consolidated School Corporation after their thirteen-year-old child collapsed during basketball practice and died. A jury returned a verdict for the parents. The Court of Appeals reversed and remanded for a new trial. Clay City Consol. Sch. Corp. v. Timberman, 896 N.E.2d 1229 (Ind. Ct. App. Dec. 2, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Dec. 2, 2008 COA opinion here, 2nd case.]

  • 10:30 AM - In re Termination of the Parent-Child Relationship of J.M. - The Allen County Department of Child Services filed a petition to involuntarily terminate the parental rights of J.M.'s mother and father, who at the time were both incarcerated. The court denied the petition to terminate parental rights. The Court of Appeals reversed. In Re Termination of the Parent-Child Relationship of J.M., 895 N.E.2d 1228 (Ind. Ct. App. 2008), vacated. Father petitioned for rehearing on grounds he recently was released from prison. The Court of Appeals denied rehearing. Id., Cause No. 02A05-0807-JV-416, unpublished order, (Ind. Ct. App. Jan. 6, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Nov. 5, 2008 COA opinion here - 3rd case. Also, Nov. 7th press story here and Nov. 11th editorial here. Note: Both Appellees A.S. and A.M. were granted transfer.]

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 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,]
Next week's oral arguments before the Court of Appeals (week of 5/11/09):

Thursday, May 12th:

  • 10:30 AM - Carlton Davis vs. State of Indiana - While Carlton Davis was out of town, local police received a call from a neighbor concerning a foul stench emanating from Davis's property as well as the health of the numerous dogs on the property. The responding officer walked the property and found what was later determined to be an animal carcass in the bed of a pickup truck on the property. He also found twelve dogs that appeared to be malnourished and chained outside without food or water. The officer called his superior, who in turn called the local police investigator specializing in animal abuse. When the investigator arrived, she walked the property and interviewed neighbors. She then used this information to obtain a warrant to seize the dogs and search the house, a red shed and a white building on the property. Evidence from this search was used in a jury trial that resulted in convictions against Davis for eight counts of Promoting Animal Fighting Contests, twelve counts of Cruelty to an Animal, Purchasing or Possessing an Animal for an Animal Fighting Contest, and Possession of Animal Fighting Paraphernalia. Davis argues on appeal that the trial court erred in admitting the evidence from the search because the search warrant was invalid for several reasons; one being that the investigator searched his property in violation of his Fourth Amendment rights. He also challenges the admission of other evidence based on Trial Rule 404(b), evidence of other crimes, wrongs or acts.. The Scheduled Panel Members are: Judges Bailey, Mathias and Barnes. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]
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, May 04, 2009
Posted to Upcoming Oral Arguments

Ind. Courts - More on: Marion County reportedly suspends bench warrants for delinquent parents [Updated]

Following up on this ILB entry from Feb. 6th, Jon Murray of the Indianapolis Star today continues his reporting on this issue. The headline: "Warrants for deadbeat parents may return: Bill includes OK to issue them in child-support cases":

Warrants that threaten a stay in jail for deadbeat parents could be restored as an option in child support cases under a bill adopted by the state legislature.

Marion Superior Court judges drew protests from the prosecutor and some parents this year when they purged more than 4,100 noncriminal warrants, more than half issued against parents who had shirked child support payments. The judges questioned whether Indiana law permitted the common practice of issuing such warrants directly from the bench.

A provision tucked in an omnibus child-services bill would allow the practice for child support cases, spelling out a contempt process that includes bench warrants. It doesn't address such warrants in other situations, such as when witnesses ignore subpoenas to testify in court.

The bill won final approval from both chambers of the General Assembly on the last day of the session and awaits Gov. Mitch Daniels' signature; it would take effect July 1. * * *

Bench warrants show up in a statewide computer system alongside other arrest warrants, posing a larger threat to targets than other court orders. For those facing warrants, being stopped for speeding or running a red light could trigger their arrest.

[Marion County Prosecutor Carl] Brizzi and parents long frustrated with the child support enforcement system protested the Marion County court's action earlier this year [to purge the warrants]. Brizzi asked Indiana Attorney General Greg Zoeller for an advisory opinion, but Zoeller urged him to seek a solution through the legislature, said Helen Marchal, Brizzi's chief of staff.

The Indiana Prosecuting Attorneys Council lobbied the legislature for the fix. The measure wouldn't reinstate the purged warrants, but it would allow new ones.

Brizzi's office plans to work on a bill next year to address bench warrants for other situations, including missing witnesses.* * *

Presiding Judge Robert Altice said he would feel more comfortable if Indiana law addressed bench warrants more fully.

Murray's story includes a side-bar on how it would work:
Under the new rules passed by both houses of the legislature and awaiting the governor's signature, those who have fallen behind in child support payments could face a warrant for their arrest. A judge first would order a parent to attend a hearing to show why he or she shouldn't be held in contempt of court for violating a support order. If the parent doesn't show up, the judge could issue a bench warrant, setting an amount that would be paid to the clerk as a kind of bail and that could be applied toward child support.
What is this bill? It is SEA 365. A copy of the enrolled act is not yet available, but you can read the text here in the Conference Committee Report, on p. 12, SECTION 12.

[Updated at 5:30 PM] The Enrolled version of SB 365 is now available here. SECTION 12, which adds the new IC 31-16-12-6.5, begins on p. 10 of this PDF version.

Posted by Marcia Oddi on Monday, May 04, 2009
Posted to Indiana Courts

Sunday, May 03, 2009

Courts - "U.S. Supreme Court limits police searches; Southern Indiana prosecutors believe effects of decision will be minimal"

The U.S. Supreme Court's April 21st decision in the case of Arizona v. Gant, limiting police vehicle searches (see ILB entry here), is the subject of a lengthy story today in the New Albany News & Tribune by Matt Thacker. Some quotes:

Less than two weeks ago, the U.S. Supreme Court issued a landmark ruling that will limit when police officers may search a vehicle without first securing a warrant.

While the decision has received a great deal of media attention nationally, local prosecutors believe the decision may not have as much of an impact as it appears.

“The way it stands right now, I don’t think [the ruling] will have a substantial effect,” Clark County Prosecutor Steve Stewart said.

In Arizona v. Gant, Rodney Joseph Gant was arrested for driving on a suspended license. He was handcuffed and locked in a patrol car while officers searched the entire passenger compartment of the car and found cocaine in a jacket pocket, which was in the back seat of his vehicle.

The trial court denied his motion to suppress the evidence, and on April 21, the Supreme Court ruled in a 5-4 decision that the evidence should not have been allowed.

“Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated,” Justice John Paul Stevens wrote in the majority opinion. Prosecutors say the Supreme Court left enough room that police will still be able to find ways to search vehicles.

“It will not have as big of an impact as one might believe,” Floyd County Prosecutor Keith Henderson said.

He said that, prior to the ruling, officers were allowed to search vehicles under the justification of protecting the safety of the officer. However, when a driver is cuffed and locked in a police vehicle, it is difficult to argue that the officer is in danger.

“If the person is secured, that justification no longer exists,” Henderson said. “I think the court is saying, ‘Let’s stop the charade.’”

Officers can still search anywhere that is within one arm’s length of where the arrested person was sitting in the vehicle. Police also will still be allowed to do an inventory search of the vehicle whenever it is impounded, and police may search if probable cause exists that drugs are in the vehicle.

A new wrinkle added under the Supreme Court’s ruling is that a vehicle may be searched if police officers have reason to believe it contains evidence related to the offense the person is being arrested for.

In Arizona v. Gant, the court ruled that police officers had no reason to believe they could find evidence related to driving with a suspended license. Stewart said that if someone is arrested for a drug offense, officers could still have good reason to search the vehicle for drugs.

Henderson said he does not oppose the decision. He said the most important thing will be for police officers to be able to explain the reason they searched a vehicle. “With law enforcement articulating their reasons, this case will not have a remarkable effect,” Henderson said.

There are still many areas left open to interpretation. One example Henderson gave is that if an officer arrests one person, but there are others in the vehicle not being arrested, the officer might have good reason to search the vehicle because his safety could be at risk by those not being arrested.

He said police officers also might be able to detain the person prior to handcuffing them, but then the officer might be in real danger.

“I’m always in favor of black-and-white rules,” Stewart said. “It’s basically been a black-and-white rule that the entire passenger compartment of the vehicle can be searched. “Any time you throw in the word reasonable, it’s a matter of discretion.”

The Evening News and The Tribune contacted several local law enforcement agencies, but most were hesitant to speak on the record about the ruling. There is still a lot of confusion about what the ruling means for them.

Sgt. Jerry Goodin, with the Indiana State Police, said his agency had not been briefed on the new ruling. Sellersburg Police Chief Russ Whelan said he had received a notice about the ruling, but had not studied it yet. He did not expect it would change much for his officers.

“We ask for consent. It’s not one of them that we push a lot if they don’t give consent,” Whelan said. “Like it or not, we try to comply with [court decisions].”

Floyd County Sheriff Darrell Mills is more uneasy about how it may affect his officers. “We feel like it hampers us,” Mills said. “It makes it difficult for law enforcement.”

Henderson said he will provide some information about the ruling in the next bulletin he sends out to police. He plans to have a training session within the next couple of months in which he will go over all the changes in laws.

A local defense lawyer is praising the decision. “I think it’s an important case that reaffirms the government does not have free reign to search anyone at any time and that there are constitutional limits,” defense attorney William Gray said.

It is an issue that all expect will be tested many times in the court system.

“The state or trial courts can interpret [the ruling] any way they want,” Stewart said. “In addition, they may consider the same set of facts under the Indiana Constitution. The U.S. Supreme Court sets the lowest parameters of the state’s rights.”

Posted by Marcia Oddi on Sunday, May 03, 2009
Posted to Courts in general

Ind. Courts - "Jury still out on Lake County judge's request to move into old courthouse"

Kathleen Quilligan reports today in the NWI Times in a story that begins:

CROWN POINT | Although a Lake County judge is still trying to get his court moved into the Old Lake County Courthouse on the square, the nonprofit that runs the building believes that wish isn't a practical possibility.

Lake Circuit Court Judge Lorenzo Arredondo has hoped to move his court into the old courthouse for the past 10 years. Recently, the idea was rejuvenated when the Lake Court House Foundation Inc., the nonprofit that runs the courthouse, announced it was having some financial difficulty.

Posted by Marcia Oddi on Sunday, May 03, 2009
Posted to Indiana Courts

Ind. Law - "No law against abortion protest photos: Some residents upset by graphic images on trucks, banners"

Sue Lowe and Margaret Fosmoe report in the South Bend Tribune in a lengthy story:

The images are part of protests over President Barack Obama's scheduled appearance May 17 at the University of Notre Dame commencement. The truck and airplane banner displays are staged by the Center for Bio-Ethical Reform, a California-based organization.

The graphic images on trucks and banners will continue until commencement, said Mark Harrington, director of the group's Midwest office. A pro-life radio host who lives in Columbus, Ohio, Harrington and 10 to 15 volunteers are living in South Bend until commencement in order to direct the group's publicity campaign.

The group doesn't intentionally display the graphic abortion photos for children to see, but sometimes that can't be avoided, Harrington said Saturday. The group tries to avoid driving the trucks by elementary schools and day care centers, he said.

"There is no way to completely eliminate children from seeing the banners. We decided long ago that is an unfortunate tradeoff," he said.

The group displays the photos because the mainstream news media are part of a cover-up by refusing to show the results of abortion, Harrington said.

"Social reformers have always used graphic images to dramatize injustice," he said. "We are trying to get people to hate abortion. If they hate us, too, that's a tradeoff we're willing to make." * * *

Troy Gebhardt, a South Bend resident, said he thinks the large pictures are "absolutely appalling." Gebhardt said he had contacted the American Civil Liberties Union because he feels the pictures are a violation of his civil rights, but he had not heard back from that organization.

Gebhardt said that if the pictures appeared on television, he could change the channel. If they were in a book or magazine, he could turn the page. Even if they were on display in one place in town, he could avoid that place. But, he said, because they are on the sides of trucks in traffic, he can't avoid them.

"What do I do — run a red light?" he asked.

"If somebody has something to say I try to listen," he said. "If you horrify me or anger me, I won't listen." He said his 13-year-old niece saw the pictures and "was very much upset." * * *

Abortion protesters led by activist Randall Terry also have been displaying large pictures of aborted babies during rallies near Notre Dame's main gate. Terry, who was arrested for trespassing Friday on campus, said his group, StopObamaNotreDame.com, will continue to protest and conduct additional actions that are "deliberately prophetic."

Terry said he and Harrington aren't jointly planning their protest efforts, but they know each other and are friends. "I led Mark Harrington into the pro-life movement 15 years ago," Terry said.

South Bend Police Capt. Phil Trent said the department has taken "dozens" of calls from people upset about the images. He said police are telling callers that no law prevents the displays, which are protected by freedom of speech.

Posted by Marcia Oddi on Sunday, May 03, 2009
Posted to Indiana Law

Law - "Your government in secret: Weak Illinois laws let public officials stonewall citizens looking for information"

The effort this year to put some teeth in the Indiana public records law failed. See this April 8th ILB entry for details.

The Chicago Tribune has been publishing a multi-part examination of the ineffectiveness of the Illinois state laws relating to public access to records. Much of this echos problems also heard in Indiana. Some quotes:

In Illinois, getting a public record is a frustrating labyrinth of excuses, delays and denials.

Public servants have all the tools they need to keep a grip on information that rightly belongs to the people, whether it's a police report, a principal's disciplinary file or a spending plan, a Tribune examination has found.

Since 2005, more than a thousand citizens have filed complaints about public officials in Illinois who refused requests for public records, most often by completely ignoring them.

A review of those complaints, along with dozens of interviews, reveals a culture of secrecy shrouding the machinery of your government. Public meetings are often theater, where votes are pro forma endorsements of decisions forged in e-mails and memos you will never be allowed to see.

Government records routinely turned over at the front counters in many other states are routinely denied here -- the result of a notoriously weak open records law, an unsympathetic political culture and an attitude of disdain among many public servants who consider documents their own. * * *

The state's Freedom of Information Act has more pages devoted to what records you can't get than what you can, from public officials' personnel files to memos in which they express opinions. Critics of the law, including the Chicago Tribune, have called for a complete overhaul to eliminate broad exemptions commonly used by government to deny records.

Proposals to strengthen the law gained some steam at the Statehouse this year after the corruption arrest of former Gov. Rod Blagojevich. But they focus less on eliminating loopholes and more on strengthening enforcement of the current law.

One of the most common exemptions is for "preliminary drafts," cited by officials to withhold any number of documents written before government makes a decision -- which is exactly when the records are most needed by those who might question it. * * *

Withholding drafts and other documents used in decision-making may be common practice in Illinois, but it's puzzling to officials from other states.

"Wow, that pretty much encompasses everything government does," said Laurie Beyer-Kropuenske, Minnesota's top public records official. "I don't get it. How is the public supposed to evaluate the performance of its government if all those records are secret?"

The public needs to see drafts more than almost any other document, said Pat Gleason, a cabinet aide and open-records counsel to Florida Gov. Charlie Crist.

"They need to know what a government body did in order to reach a decision, what kind of other ideas did they explore and reject," Gleason said. "All those records are public in Florida, and it hasn't yet brought government to a standstill." * * *

'Privacy' excuse just a fig leaf? Another broad exception commonly cited is for anything considered a "clearly unwarranted invasion of personal privacy." That's the exemption school officials used when irate parents at Clinton Junior High School demanded answers after their 8th graders were forced to kneel during a lecture about discipline. * * *

The privacy exemption is broadly used in Illinois to protect everything from performance evaluations and disciplinary cases to résumés and employment contracts of public servants. It can also be used to deny 911 tapes and redact police reports.

But when public officials don't make such records available, the secrecy sometimes breeds suspicion.

The story is accompanied by this striking graphic, captioned "Thom Rae received this heavily redacted memo after he filed a Freedom of Information Act request. The document was repeatedly referred to in public meetings about the renovation of an old movie theater in downtown La Grange."

Posted by Marcia Oddi on Sunday, May 03, 2009
Posted to General Law Related

Courts - "Obama's Supreme Court pick may have Chicago link"

A story by John McCormick and Jeff Coen in the Chicago Tribune begins:

Ever since Barack Obama's election as president, there has been anticipation among scholars at the University of Chicago's Law School that one of their own could be headed to the U.S. Supreme Court bench in the next few years.

That anticipation was heightened late last week with news that Obama, who taught constitutional law at the school from 1992 to 2004, soon will be making his first Supreme Court pick.

Almost every short list of possible nominees to succeed Justice David Souter includes three individuals with strong ties to the Hyde Park law school: U.S. Appeals Court Judge Diane Wood, Obama regulatory czar Cass Sunstein and U.S. Solicitor General Elena Kagan.

Even if Obama does not pick one of the past or present faculty members this year, feelings run strong on campus that he will before he leaves the White House.

From the NY Times today, a front-page story about Barack Obama as a law prof at the U of Chicago, headed "As a Professor, Obama Held Pragmatic Views on Court ." The story by Jodi Cantor begins:
Many American presidents have been lawyers, but almost none have come to office with Barack Obama’s knowledge of the Supreme Court. Before he was 30, he was editing articles by eminent legal scholars on the court’s decisions. Later, as a law professor, he led students through landmark cases from Plessy v. Ferguson to Bush v. Gore. (He sometimes shared his own copies, marked with emphatic underlines and notes in bold, all-caps script.)

Now Mr. Obama is preparing to select his first Supreme Court nominee to replace retiring Justice David H. Souter. In interviews, former colleagues and students say they have a fairly strong sense of the kind of justice he will favor: not a larger-than-life liberal to counter the conservative pyrotechnics of Justice Antonin Scalia, but a careful pragmatist with a limited view of the role of courts.

Posted by Marcia Oddi on Sunday, May 03, 2009
Posted to Courts in general

Ind. Decisions - More on "Court overturns sex registry conviction"

The two Supreme Court decisions (see ILB summary here) issued April 30th were the subject of a story Saturday in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. The story is headlined "Rulings affect sex offender state registry: Court decision might remove names":

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

There are 753 people on Allen County’s sex and violent offender registry.

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.

Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law.

In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender.

Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“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,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life. * * *

For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes.

“It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County.

He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office.

“As police officers, we’re the gatekeepers of the criminal justice system,” Shimkus said. “We enforce the law the way it’s written.”

The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.”

Posted by Marcia Oddi on Sunday, May 03, 2009
Posted to Ind. Sup.Ct. Decisions

Saturday, May 02, 2009

Ind. Courts - More on yesterday's post on the St. Joe judges selection bill

In this post yesterday I suggested:

Rather than a new, unnecessary sixth panel of the Court of Appeals, if we are going to be adding judges with no demonstrated workload need, wouldn't it be preferable to add two new justices to the Supreme Court of Indiana?
I quoted from an article calling for more women on the U.S. Supreme Court and said the same rationale for gender diversity applied with respect to Indiana's high court.

IU LAW prof Joel Schumm sent this note:

Great post--and great point. Every class I teach I find a way to pull up a picture of the Indiana Supreme Court. "What jumps out at you about this picture?" "It's all men," they always respond.

I once heard Justice Selby speak about sometimes talking with school children visiting the courtroom. They'd look around the walls at the pictures of the 100+ justices and ask "where are the girls?" The kids get it; I hope the adults do, too.

Another reader wrote this morning, pointing me to the front-page story by Charlie Savage today in the NY Times, headlined "Wider World of Choices to Fill Souter’s Vacancy." Some quotes:
When President Ronald Reagan decided to appoint a woman to the Supreme Court in 1981, he had to turn to Sandra Day O’Connor, an obscure state judge.

When President Bill Clinton decided to add a second woman to the court, he confronted a world in which women were just beginning to climb the ranks of big law firms and ranking female judges, like Ruth Bader Ginsburg, were still scarce.

Today, as President Obama moves to pick his first Supreme Court nominee as a successor to retiring Justice David H. Souter — a choice many political observers expect will be a woman — he finds a vastly altered scene, with women holding dozens of seats on the nation’s appellate courts, occupying dean’s offices at prestigious law schools, and serving in some of the highest political offices in the nation.

“The legal landscape has been totally transformed,” said Deborah Rhode, a Stanford University law professor whose research includes gender issues related to the legal profession. “Obama has a lot of possibilities.”

More than 200 women are federal district and appeals court judges, representing about a quarter of each bench, according to statistics compiled in 2008 by the American Bar Association. More than a hundred women are judges on top state courts, and a third of state chief justices are women. * * *

Yet despite the rising prominence of women in the legal profession and the political world, the Supreme Court remains something of a male-dominated throwback.

Again, the same rationale applies. While the legal landscape (including our own Court of Appeals where 5 of the 15 judges are now women) has been transformed over the past dozen years, our Supreme Court is composed of five men. And it always has been except for the brief interlude of Justice Myra Selby, who was appointed by Governor Bayh in 1995 and served until 1999. As justices in Indiana may serve until they reach 75, it seems unlikely that two or three slots will open up in the foreseeable future.

So the only answer would be to add more seats, changing the Supreme Court from 5 members to 7 members. This would not require an amendment to the Indiana Constitution, the expansion of the Court may be readily accomplished by statute.

Arguments for this answer have in the past been rebuffed with statements that there was not enough workload to justify expanding the Supreme Court by two.

But that reasoning falls
with the ready passage this month by both houses of the General Assembly of HEA 1491, which would add three new judges to the Court of Appeals with absolutely no showing of need.

______________________

For more, see this ILB entry from October 6, 2007, headed "Few women in Indiana are appointed to high judiciary posts."

From August 29, 2007, this ILB entry began: "Indiana has the only top court in the nation with no women members, and many in the State of Idaho are doing their best to keep Idaho from becoming the second such state."

For an article from earlier this month, the Knoxville News had a report by Georgiana Vines on April 19th headlined "It's a woman's world on the Tennessee Supreme Court ." Three of the five members are now women.

And back to yesterday's point about the male U.S. Supreme Court justices considering strip searches of 13-year-old girls as nothing out of the ordinary, a story today underscores the differing viewpoints between the genders. The headline to the story in Delaware Online by Maureen Milford is "Top justice sent racy video to colleagues: Myron Steele used state e-mail to share video with 38 male friends, lawyers." Some quotes:

Delaware Supreme Court Chief Justice Myron T. Steele, the national face of Delaware's powerful and highly respected courts, used his state e-mail account Monday to send a sexually suggestive video to 38 men. * * *

Steele said Wednesday that he viewed the e-mail video attachment as a harmless joke that would not offend anyone.

"I don't think there was anything offensive to women," Steele said. "I forwarded it to people I thought would find it amusing." * * *

Despite the fact it was on his state e-mail account, Steele said he didn't view it as a public e-mail because he didn't expect it to be "broadcast widely."

"I apologize to anyone who might have seen it who might be offended," Steele said. "All the ones who know me know there's nothing behind this. They know my character and history and that this was just a frivolous joke. Probably, in retrospect, I wouldn't send it again." * * *

Susan Koniak, a professor of law at Boston University School of Law and co-author of "The Law and Ethics of Lawyering" legal casebook, said Steele should resign.

"I can't tell you how offended I was," said Koniak, who agreed to view a copy of the video for The News Journal. "Don't think anything about how wonderful a judge he is makes up for doing this. It undermines the judiciary completely."

Describing the video as "soft porn," Koniak said most people will be reluctant to comment on the incident because Steele is such an influential jurist. Delaware's Supreme Court often hears appeals on matters related to the nation's biggest corporations, including the 2005 high-profile shareholder suit involving executive compensation at The Walt Disney Co.

Interestingly, a former IU law prof finds an additional issue:
William Hodes, a professor emeritus of law at Indiana University School of Law, who helped draft the recent American Bar Association revision of the code of judicial conduct, said "the chief justice ought to have a little bit more self-control, certainly, because it was on his work account."

Hodes said the incident raises the issue of Steele fraternizing with lawyers who go before him. Somebody who had a recent, pending or impending matter before the court could file an ethics complaint, he said.

In Delaware, complaints concerning a judge are filed with the state's Court on the Judiciary.

"Who were these lawyers and why were they selected? Obviously, they're buddies," Hodes said.

Steele said most of the e-mail recipients were former clerks. Other recipients included lawyers, another Delaware judge and a Delaware businessman.

The story includes a link to the video.

Posted by Marcia Oddi on Saturday, May 02, 2009
Posted to Indiana Courts

Ind. Decisions - Another NFP COA decision reclassified

The ILB earlier this year began keeping an eye on NFP opinions reclassified as "for publication" by the Court of Appeals, via Ind. Appellate Rule 65(A).

Under 65(B), Time to File Motion to Publish, "within 30 days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication."

Under 65(E) Certification of Opinion or NFP Decision, "The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court."

The first one the ILB blogged about was Garry Coleman v. Review Board, where the order to publish was issued April 16th. The order appears to have been issued on the Court's own initiative, rather than in response to a party's motion. This case concerned email usage by a state employee. The opinion had been certified March 23rd.

The next was Madison Cty. v. Town of Ingalls, dealing with annexation, where the FP court order was issued April 24th, pursuant to a party's motion to publish. A transfer petition is pending.

The latest is Curtis v. State, where the court affirmed a denial of post-conviction relief. A NFP was issued Feb. 25 and ordered FP on May 1st. A motion to publish was filed March 2nd (this is the first of these three cases where there is such a docket entry). The Supreme Court denied transfer on April 30th. The COA docket entry from May 1st reads:

  • HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
    THE APPELLEE'S VERIFIED MOTION TO PUBLISH MEMORANDUM DECISION IS GRANTED, AND THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON FEBRUARY 25, 2009, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION IS NOW ORDERED PUBLISHED.
    FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE ROBB, CRONE, AND BARNED, J.J., CONCUR. KM

Posted by Marcia Oddi on Saturday, May 02, 2009
Posted to Ind. App.Ct. Decisions

Friday, May 01, 2009

Courts - Nearly simultaneous, conflicting Circuit Court NLRB opinions issued this afternoon

And one of them is from the 7th Circuit, affecting an Indiana company. An AP story by Nedra Pickler begins:

WASHINGTON (AP) — Decisions made during the past year by the leading federal agency that referees labor-management disputes fell under a legal cloud Friday with conflicting federal appeals court rulings.

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.

The 7th Circuit opinion is New Process Steel, L v. NLRB. New Process is located in Butler, Indiana.

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Courts in general

Ind. Courts - More on: Conferees agreed to version of St. Joe judges selection bill; my thoughts

Updating this ILB entry from Tuesday, HEA 1491 is now ready for submission to the Governor.

The new panel of three Court of Appeals judges created by the bill is not to begin operating until July 1, 2011. Thus it will not impact this biennial budget. The LSA projections are that the impact of the new panel in the next biennium will be nearly $4.5 million.

A check of the Governor's 2009 Bill Watch shows that, as of this writing, Gov. Daniels has not yet received HEA 1491. When he does receive the bill, he may sign it, veto it, or allow it to become law without his signature. If he vetoes the bill, the General Assembly, when it next meets, which may be soon, may override it by a simple majority vote in each house.

The original House bill proposed to make all St. Joesph County judges elective. Some are now appointed via a merit system. Lake is the only other county where all judges are not elected. Many have thought of these two counties as the models for future efforts to make all county judges merit.

The Senate added the provision to create a 6th Court of Appeals panel. The House agreed to the Senate change.

There has been no demonstrated need for a new multi-million dollar appellate panel. Some have said this addition is needed so that Gov. Daniels can add more Republicans to the Court of Appeals, which currently has 13 members appointed by Democratic governors, and 2 members appointed by Gov. Daniels, a Republican.

My thoughts. Veto the bill, Gov. Daniels. Rather than a new, unnecessary sixth panel of the Court of Appeals, if we are going to be adding judges with no demonstrated workload need, wouldn't it be preferable to add two new justices to the Supreme Court of Indiana?

The Supreme Court consists of five men, none of whom appear likely to step down in the foreseeable future. If the Supreme Court were expanded to seven members, you, Gov. Daniels would be in a position to select two women to serve on the Court. The results would be huge, and the fiscal impact would be less.

BTW, Gov. Daniels, a reader has sent me this article by Dalia Lithwick of Slate Magazine on why we need more than one woman on the U.S. Supreme Court. The same rationale follows for why we need gender diversity on our state Supreme Court.

Her article, posted April 21st, includes:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks"). After today's argument, it's plain the court will overturn a 9th Circuit Court of Appeals opinion finding a school's decision to strip-search a 13-year-old girl unconstitutional. That the school in question was looking for a prescription pill with the mind-altering force of a pair of Advil—and couldn't be bothered to call the child's mother first—hardly matters. * * *

Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Indiana Courts

Ind. Decisions - "Court overturns sex registry conviction"

Yesterday's two Supreme Court decisions (see ILB summary here) are the subject of an AP story today in the Chicago Tribune:

The Indiana Supreme Court on Thursday overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molesting before the state's Sex Offender Registration Act was enacted.

In a unanimous ruling, the court said the subsequent conviction of Richard P. Wallace two years ago violated the state constitution's prohibition of retroactive laws.

Applying the sex registration requirement to Wallace, who completed his probation two years before the law was enacted, would impose "burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed," Justice Robert Rucker wrote in an 18-page opinion. * * *

In a separate ruling, the Supreme Court affirmed the conviction of an Allen County man who in 2000 pleaded guilty to one count of vicarious sexual gratification and one count of child molesting and spent three years in prison and another three on probation. He was also required under a separate state law at the time to register as a sex offender for 10 years.

But in 2006, the Legislature amended the law to require lifetime registration as a "sexually violent predator."

Jensen appealed the conviction in Allen Superior Court, arguing the law was retroactive and that his original plea agreement was made invalid because he wasn't advised he would have to register for life.

The Indiana Court of Appeals overturned the conviction, but in Thursday's 3-2 ruling the Supreme Court rejected his arguments, saying Jensen "cites no evidence of a punitive intent on the part of the Legislature. ... Thus we presume that the Legislature's intent was civil and regulatory, and not criminal or punitive in relation to the claim that the act is an ex post facto violation."

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "Academic Innovation Hits the Legal Web"

Robert J. Ambrogi of Law Technology News begins his report:

Recent projects launched online with the support of law schools show that there is no waning of clever and useful ideas coming from law students and faculty. Here are some examples:

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to General Law Related

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

For publication opinions today (0):

NFP civil opinions today (1):

Roy Young, Jr. v. Teresa D. Baynes (NFP) - "Based on the foregoing, we conclude that Father has demonstrated prima facie error on the part of the trial court, first by abusing its discretion when imputing $400 per week of income to him, and then by declaring R.Y. to be emancipated."

NFP criminal opinions today (3):

Melvin White v. State of Indiana (NFP)

Tommie J. Cobbins v. State of Indiana (NFP)

LaJae Jacobs v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Ind. App.Ct. Decisions

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

In Abad et al. v. Bayer Corp.(ND Ill.) / Pastor v. Bridgestone/Firestone (SD Ind., Judge Barker), a 19-page opinion, Judge Posner writes:

We have consolidated for decision two appeals (Abad and Pastor) that present similar issues concerning the doctrine of forum non conveniens (“inappropriate forum”). The doctrine allows a court to dismiss a suit if there are strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction. In both our cases the plaintiffs are Argentine citizens, resident in Argentina, who filed products-liability suits in federal district courts against American manufacturers under the diversity (technically, the alienage, 28 U.S.C. § 1332(d)(2)(B)) jurisdiction for injuries sustained in Argentina. In each case the district judge, on the defendants’ motion, after considerable pretrial discovery, invoked forum non conveniens and dismissed the case in favor of the courts of Argentina. The plaintiffs have appealed; dismissal of a case on grounds of forum non conveniens is deemed a final judgment appealable under 28 U.S.C. § 1291 even though it does not end the litigation. [cites omitted] * * *

[Abad] When the decision of a case is uncertain because the orthodox sources of law do not provide adequate guidance (apparently no code provision or judicial decision in Argentina accepts or rejects marketshare liability), the court asked to decide must make law, in this case Argentine law; and an Argentine court is the more competent maker of Argentine law—more competent in the sense of more legitimate, but also more competent in the sense of being better able to decide the case correctly because more at home in the relevant legal tradition than an American court would be. * * *

[Pastor] In support of the district judge’s order we note that the case will not remain in Indianapolis in any event; it will go to Florida for trial if it does not go to Argentina. Proceedings in two courts would not be avoided even if we reversed the order dismissing the suit. In neither case did the judge abuse his or her discre- tion, and therefore the judgments are AFFIRMED.

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - "Justice David H. Souter plans to retire at the end of the term in June"

So report Peter Baker and Jeff Zeleny in this story today in the NY Times.

The Washington Post today has an exhaustive look at potential Obama nominees, to accompany this story by Robert Barnes, headed "Souter Reportedly Planning to Retire From High Court: Justice Might Stay Until Nominee Confirmed."

Tom Goldstein of SCOTUSBlog has this long, informed look at the situation, headed "Justice Souter’s Retirement and Where We Go from Here."

For an uninformed view, see this column by Marc Ambinder of The Atlantic, headed "Souter Said To Be Retiring; Who Would Replace Him?." He writes:

[President Obama's] first judicial appointment may tell us about his newest decision: Obama nominated Indiana Supreme Court Chief Justice David Hamilton to the 7th circuit; the White House portrayed Hamilton as a jurist respected by Republicans and Democrats alike, although Republicans in Washington were skeptical. [ILB emphasis]

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Courts in general

Ind. Gov't. - Editorials chastise General Assembly

Nearly all the major Indiana newspapers today have editorials chastising the General Assembly for its sorry performance over the past four months. Here is the editorial in today's Evansville Courier & Press. It concludes:

Other than the cost, there is something else bothersome about lawmakers failing to finish on time. Remember the early public interest in the proposed Kernan-Shepard local government reforms, which included the elimination of township government in Indiana?

That necessary reform appeared to have momentum going into the session, but ran into a wall when Bauer said the House had more important bills to work on. What bills? Obviously, it wasn't the budget, because it didn't get done.

And remember the bill that would have allowed penalties against public officials and employees who failed to provide public access to government records and meetings?

That bill faltered after Rep. John Bartlett, D-Indianapolis, chairman of the House Government and Regulatory Reform Committee, said his committee ran out of time for it because it had to spend time on other legislation. Again, that wasn't the budget.

A special session can be expensive. Each day will cost taxpayers a minimum of $12,420 in per diem pay, but there are also travel expenses and the costs of paying staff. That's why that daily cost of a special session could run in excess of $20,000. Perhaps it would make sense — and save some money — to bring back only the budget negotiators for the special session. Let that group reach an agreement before calling back the full body to consider the compromise and vote. Hoosiers should learn shortly when Gov. Mitch Daniels will call them back. The most serious deadline they face is July 1, after which state government would have a difficult time operating without budgeted funds.

Look, most lawmakers feel the frustration in not getting their job done on time. That's why we expect they will convey to their leaders the need to wrap up this costly exercise as quickly as possible.

From the Fort Wayne Journal Gazette, this editorial titled "A Miserable Failure." From the Indianapolis Star, this editorial headed "A sad state of legislative leadership." Fomr the NWI Times, this editorial, headed "Legislative session was a failure." From the Lafayette Journal & Courier, this editorial, headed "Indiana legislators failed their constituents," that reads:
Everyone is entitled to a bad day -- even a bad week and sometimes an off month. But four bad months in a row? State senators and representatives have no one to blame but themselves for their failed 2009 session.

Every two years, the General Assembly has one task that must be completed by the end of the four-month session -- adopt a state budget, preferably a two-year spending plan.

Getting a budget passed was so important that lawmakers hid behind this task to avoid other legislation that many Hoosiers supported, such as giving residents the opportunity to vote in a referendum to cap property taxes.

Lawmakers failed their constituents this year. They couldn't reach a compromise on the budget. So now the blame begins.

The House blamed the Senate -- and vice versa; the Republicans blamed the Democrats -- and vice versa. House and Senate leadership blamed the governor -- and so it goes. It doesn't change the fact that all of our lawmakers failed miserably -- and not just on the budget. They failed to do the people's business.

The Kernan-Shepard recommendations for local government reform, for example, have broad support throughout the state, yet the House killed those reforms.

Now the legislature will be called into special session to finish the work it failed to complete, and all Hoosiers ought to be indignant with their representatives and senators.

In the worst recession in 70 years, facing falling state revenues and with state employees having their wages frozen, lawmakers will now cost taxpayers more than $12,000 a day for a special session.

It's difficult to separate the politics from political process in the General Assembly, and Hoosiers tolerate the gamesmanship as a necessary evil, as long as the work gets done. To the shame of all lawmakers, that didn't happen this year.

Posted by Marcia Oddi on Friday, May 01, 2009
Posted to Indiana Government