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Tuesday, June 30, 2009

Ind. Decisions - Supreme Court rules in sex offender case

I've received this report:

The following case has been granted transfer with opinion:

State v. Anthony Pollard -- 05A02-0707-CR-640 -- 6/30/09 -- Transfer granted with opinion

No opinion has been posted however. Pollard was the case where the COA "declared unconstitutional a 2006 state law barring registered sex offenders from living near schools, parks and youth centers in cases where the offender had already owned his home when the law took effect," to quote a 5/14/2008 story in the South Bend Tribune. Here, from the May 13th opinion of the COA:
The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution.
We affirm.

Here, from the docket today, is the Supreme Court's holding:


Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Court of Appeals caseload down considerably in calendar 2009

Updating this ILB entry from Monday, today the ILB has received this information from Chief Judge Baker about the Court of Appeals current caseload:

We are down 200 cases from 2008. We still have 100% clearance.
And here are the preliminary numbers:
Monthly intake: 230
YTD intake: 1281 (down 202 from 2008)
YTD intake 2008: 1483

Avg cases per day for June: 10.45

Disposed: 228 majority opinions + 0 dispositive order = 228 total disposed
YTD disposed: 1304 + 8 dispositive orders = 1312 total disposed (down 173 from 2008)
YTD disposed 2008: 1476 + 9 disp. orders = 1485 total disposed

Previous pending: 342
Current pending: 345 (up 3)

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Courts should operate tomorrow, no matter what

Chief Justice Shepard has issued this message:

As of this hour, the General Assembly appears poised to adopt a new biennial budget, but neither house has yet convened to consider the proposal that has been negotiated over the last few days. Thus, we may not know before the end of the business day whether there will be a budget passed or not.

There can be little doubt that just as public safety requires the continuation of state law enforcement and corrections activities it likewise relies on the availability of Indiana's trial courts for search warrants, arraignments and bail, protective orders, child support, and a host of other needs. We therefore ask that you be at your post tomorrow, as we will.

In the event that there is not a budget, of course, the appellate courts and the support structure for the judicial branch will need to shut down, save for certain emergency functions, beginning tomorrow. Detailed decisions about those closings and furloughs will be made tomorrow morning should that be necessary.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Courts

Ind. Law - More on: What about the new budget agreement? What will be in it? [Updated]

Updating this ILB entry from this morning, the Conference Committee Report (or draft #1 at least) has been posted online, within the last two hours. Access it here, at the bottom of the page. Both houses' versions should be the same. As soon as I have had a chance to review it, I will post more here.

[5:59 PM] - The Star reports the House has passed the budget. As the House was the hurdle, one can assume the Senate will follow suit and the bill will soon be on its way to the Governor.

Here are some things I've noticed in the new version:

Some "Augumentation" provison, p. 11 of PDF. Same "withholding allotment" powers on p. 105 of PDF.

One reference to "Notre Dame," as before.

94 references to "ombudsman."

P. 143, assessment of golf courses.

P. 341, operation of golf cart on highway

Twenty references to "Virtual charter schools"

CIB language beginning on p. 459 - terms of members.

P. 464, SECTION 505 -- "Effective Dates of HEA 1001(ss)-2009"

P. 465, SECTION 507 - 509 -- Interesting amendments that may impact the liability of railroad companies.

Very interesting language beginning at p. 469 of the PDFthat does not follow established procedure to amending and repealing the law -- SECTION 514 - 518 providing that specified changes made earlier in the report "shall not take effect" and telling the publisher of the Indiana Code what to do: i.e. "The publisher of the Indiana Code shall publish IC 20-28-11-3 as amended by this SECTION."

Keeps the court automated recordkeeping (JTAC) fee at the current $7 annually until 7-1-11, then $4 annually thereafter. P 389 of PDF, SECTION 394. See these ILB entries for background.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Law

Ind. Courts - More on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge

Updating this entry, Jon Murray reports this afternoon:

A senior judge today asked the Indiana Supreme Court to appoint a special judge to handle a politically sensitive forgery case with connections to two sitting Marion Superior Court judges.

Neither judge is accused of wrongdoing. But the wife of one is accused of forging the signature of the other — her sister-in-law — in a bid to stop the foreclosure of the couple’s Geist home. * * *

Her attorney and Marion County prosecutors were in court this morning. Senior Judge Ruth Reichard, filling in for Judge Grant Hawkins, recused herself and signed the special judge motion.

It says no judge in the county could handle the case without a potential conflict of interest.

Reichard had earlier granted Marion County prosecutors’ request to appoint Clinton County deputy prosecutor Judith Johnson as special prosecutor.

But Mario Massillamany, spokesman for Marion County Prosecutor Carl Brizzi, said today that Johnson has since declined to participate. That leaves the case in a holding pattern until the special judge selected by the Indiana Supreme Court can appoint another special prosecutor, he said.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Courts

Ind. Decisions - A second opinion today from the Supreme Court

In East Chicago v. East Chicago Second Century, Inc., a 21-page, 4-1 opinion, Chief Justice Shepard writes:

When riverboat gambling came to Indiana and to East Chicago, the applicant for the gaming license and the City of East Chicago negotiated certain arrangements to commit part of the resulting revenue toward economic and workforce development in the City. Several private corporations were created to facilitate those efforts. When the Indiana Gaming Commission issued a license for East Chicago, it conditioned the license on those arrangements.

On the issues joined by the City and these corporations in the present appeal (one of several appeals), we hold certain of the City‟s claims should survive a motion to dismiss and others should not. We also hold the existing arrangements are subject to alteration, through the appropriate administrative channels, as the Indiana Gaming Commission on advice of the City and others may deem best for the future of East Chicago‟s residents. * * *

Conclusion. As detailed above, the trial court is affirmed on some points and reversed on others. We remand so that there can be further proceedings on the merits.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J concurring and dissenting with separate opinion.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. Sup.Ct. Decisions

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

In U.S. v. Rolls-Royce (SD Ind. Judge Barker), a 13-page opinion (that is not readily summarized) from a panel including Judges Wood and Posner, Chief Judge Easterbrook writes:

Now that the question has been squarely presented, we join the fifth circuit in concluding that the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public. The special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation. See United States v. Mendoza, 464 U.S. 154 (1984) (non-mutual issue preclusion does not apply to suits involving the United States). Cf. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (an employee’s private disposition, via arbitration, of a claim against an employer does not diminish the federal government’s ability to pursue judicial relief independently); EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006) (employee’s failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement). * * *

The judgment of the district court is affirmed with respect to the claim under §3729(a)(7) and otherwise reversed. The case is remanded for a decision on the merits.

In U.S v. Cole (ND Ind., Judge Moody), a 10-page opinion, Judge Sykes writes:
Parrish Cole entered into a written plea agreement with the government in which he acknowledged distributing less than 400 grams of heroin and less than a kilogram of marijuana. The district court accepted the plea agreement but found, based on information in the presentence report, that Cole should be held responsible for a greater quantity of drugs than the amounts he had admitted in the agreement. The court increased Cole’s guidelines range accordingly and sentenced Cole to 97 months in prison, which was nearly double the sentence Cole expected if the court had followed the recommendations in the plea agreement. Cole challenges his sentence; although in his plea agreement he waived his right to appeal, he argues that the appeal waiver is unenforceable because the district court’s independent calculation of the drug quantities effectively nullified the agreement.

We disagree. The enforceability of Cole’s appeal waiver hinges on whether the drug quantities in Cole’s plea agreement were binding on the district court for sentencing purposes. Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides that if the district court accepts a plea containing an agreement between the government and the defendant about a specific sentence, sentencing range, or the applicability of a specific guidelines provision, policy statement, or sentencing factor, the court is bound by the parties’ agreement for purposes of sentencing. Cole’s drug-quantity admissions in the plea agreement do not fall into any of these categories but are instead factual stipulations that fall outside Rule 11(c)(1)(C)’s scope and thus do not bind the district court. See U.S.S.G. § 6B1.4(d). Accordingly, when the district court independently quantified the amount of drugs attributable to Cole based on information in the presentence report, it did not nullify the plea agreement. The appeal waiver in Cole’s agreement is enforceable, and we dismiss his appeal.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)

For publication opinions today (8):

Francis W. Splittorff v. Jerry Aigner, Pam Aigner and Beverly Childs - "Splittorff cannot prevail on his statutory claims for relief. Neither statute upon which Splittorff relies was written in contemplation of a former owner who holds over after title has passed under a tax sale deed. And Splittorff’s other contentions on appeal amount to a request that we reweigh the evidence, which we will not do. There is evidence in the record to support the trial court’s damages award. Accordingly, we affirm the trial court."

Helene C. Uhlman v. Rodrigo R. Panares, M.D., et al - "We conclude as a matter of law that Uhlman was an at-will employee when she served as Administrator of the health department. She has pointed to no evidence in the record to show that she was employed for a definite term or that she provided adequate consideration to convert the presumptively at-will employment to one in which she could only be terminated for good cause. We further conclude as a matter of law that Dr. Panares, as Health Officer, had authority to terminate Uhlman as Administrator. The legislative scheme in existence when Uhlman was terminated gave the Health Officer executive authority to make employment decisions. Thus, the legislature accorded broad discretion regarding employment decisions to the Health Officer, as executive officer of the Department. We conclude that the Health Officer‟s authority to make employment decisions includes the authority to terminate employees without the approval of the Board. And, as an at-will employee, Uhlman could be terminated from her employment for any cause or for no cause at all. See Trinity Baptist Church v. Howard, 869 N.E.2d 1225, 1228 (Ind. Ct. App. 2007), trans. denied. The trial court did not err in granting partial summary judgment to Defendants."

Andrew King v. State of Indiana is a 27-page opinion by Judge Crone dealing with online child solicitation. The issues are set out as:

I. Did the trial court abuse its discretion in admitting certain evidence? [ILB - The opinion discusses admission of internet evidence in depth here]

II. Is impossibility a defense to the crime of attempted dissemination of matter harmful to minors?

III. Did the State establish the corpus delicti of the crimes?

Re "impossibility", the Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana is referenced 21 times in the opinion; Aplin v. State is cited 34 times. The Court notes in footnote 13 - "Our supreme court denied transfer in Gibbs on May 14, 2009. Justice Dickson voted to grant transfer." Footnote 14 reads: "Justices Dickson and Sullivan voted to grant transfer in Aplin." [See this Jan. 4, 2009 ILB entry headed "Rulings target Internet sex stings: Appeals court says there must be an actual victim."] The Court concludes Part II:
We agree with Judge May [who dissented in Gibbs] that impossibility is not a defense to the crime of attempted dissemination of matter harmful to minors and believe that the legislature could not have intended to foreclose prosecution under Indiana Code Section 35-49-3-3 when the defendant erroneously believes the victim is a minor. Both Indiana Code Section 35-41-5-1(b) and our supreme court's interpretation of the statute in Zickefoose support this conclusion. Here, King intended to send a photo of an exposed penis to a fifteen-year-old via the internet and did all he believed was necessary to complete the offense of dissemination of matter harmful to minors. He failed to complete the offense only because it was impossible under the circumstances, i.e., because Detective Odier was not a minor. Consequently, we affirm his conviction for attempting that crime.
Jonathan Parahams Jr. v. State of Indiana - "Parahams does not argue that the variance between the charging information and the proof at trial misled him in the preparation of his defense. Moreover, on the record before us, we cannot conclude that the variance prejudiced Parahams. Parahams's one charged act of resisting was fleeing from a police officer after he was told to stop. The probable cause affidavit attached to the charging information listed the five officers that were present at the scene. The State proved that one of those officers, Officer Chicowicz, ordered Parahams to stop when he began to flee. For all of these reasons, we cannot conclude that the variance was fatal to the State‟s case. The State therefore presented sufficient evidence to prove that Parahams resisted law enforcement and we affirm his Class A misdemeanor resisting law enforcement conviction."

K.M.K. v. A.K. and Jeffry G. Price - "Although we can discern no basis in the record for an award of attorney fees, in light of the statutory language allowing for attorney‟s fees in any civil case where the trial court deems such an award to be necessary or proper, we conclude that Price is not barred from requesting attorney‟s fees in the instant matter."

Tanette Kinnon v. State of Indiana - "On July 7, 2005, the Indiana Office of Inspector General received a complaint from the Office of Management and Budget regarding mileage reimbursements for State employees during the fiscal year of July 1, 2004 to June 30, 2005. After conducting an audit, the Office of Management and Budget referred to the Office of Inspector General the names of the ten State employees who submitted the highest reimbursement claims. Kinnon was number one on the list. For the time period the Office of Inspector General initially examined, July 1, 2004 until June 30, 2005, Kinnon reported 95,869 miles, which translated into $32,595.69 in reimbursements. Although four homemakers in Kinnon‟s district were all in the top ten for mileage statewide, Kinnon‟s amount was about three times that of the next-highest claim."

Regunal Dowell v. State of Indiana - "The State cross-appeals, arguing that Dowell‟s appeal must be dismissed because he failed to timely file his underlying motion to correct error, thereby depriving this Court of jurisdiction to entertain his appeal. Concluding that the prison mailbox rule applies, we determine that Dowell timely filed his motion to correct error. We also conclude that the post-conviction court did not err by denying Dowell‟s petition for post-conviction relief without an evidentiary hearing. We affirm."

N.S., Alleged to be CHINS; T.S. & S.B. v. IDCS - "Having concluded that Indiana Code section 31-40-3-2 clearly states that the fiscal body of the county shall appropriate money for use by the courts in providing GAL or CASA services, and that Indiana Code section 33-24-6-4 supports the proposition that the burden of financially supporting GAL and CASA programs lies with the county, we conclude that the trial court erred in ordering DCS to pay the fees associated with the services provided by the GALs in the instant matters. In addition, we recognize the distinct roles of each of our three branches of government and thus leave to the legislative branch the question of whether, in light of the trend toward State funding of child welfare costs, the costs associated with GALs and CASAs should be shifted to the State. Under our current statutory scheme, however, it is clear that the burden of paying for services rendered by GALs or CASAs should be attributed to and paid for by the county. The judgment of the trial court is reversed, and this matter is remanded for further proceedings."

NFP civil opinions today (6):

Term. of Parent-Child Rel. of D.G., et al; S.K. & C.G., et al v. IDCS (NFP)

The Invol. Term. of the Parent-Child Rel. of D.H.; B.M. v. Marion Co. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of J.D.; B.D. v. IDCS (NFP)

A.P. v. Indiana Dept. of Child Svcs. (NFP)

Scott County Area Plan Commission v. Townes Half-Way House, Inc. (NFP)

Jeff Canen v. Fisher Vorhis Draper Chapel (NFP)

NFP criminal opinions today (18):

Jarrode E. Phillips v. State of Indiana (NFP)

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

Loyce Williams v. State of Indiana (NFP)

Lawaine Smith v. State of Indiana (NFP)

Andre Payton v. State of Indiana (NFP)

Tony Lynn Reed v. State of Indiana (NFP)

Brian Devlin v. State of Indiana (NFP)

Jose A. Cortez v. State of Indiana (NFP)

Kenneth Bartley v. State of Indiana (NFP)

Leonard Sago v. State of Indiana (NFP)

Christopher Jackson v. State of Indiana (NFP)

Lavarter Lewis, Jr. v. State of Indiana (NFP)

Jennifer Whitesell v. State of Indiana (NFP)

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

Seth Beck v. State of Indiana (NFP)

Matt Taylor v. State of Indiana (NFP)

Andres Jackson v. State of Indiana (NFP)

Terry Fennessee v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Laws - More on "New Ind. laws include teen driver cell phone ban"

Updating this ILB entry from June 28th, two stories today:

From the Elkhart Truth, "Dog breeders face license law." The bill is HEA 1468.

From the Gary Post-Tribune, a lengthy story by Karen Snelling, headed "New state law requires all cigarettes burn out quickly." Some quotes:

Retailer Dhiren Shah expects his tobacco sales to drop starting July 1, when a new law will require that all cigarettes sold in Indiana burn out more quickly when left unattended.

"Our customers complain that fire-safe cigarettes go out too quickly and taste very funky," said Shah, owner of Karma Tobacco and Cigar Lounge in Merrillville.

Smokers buy traditional cigarettes by the carton, Shah said, but turn around and walk out if he only has fire-safe smokes in stock.

"It's definitely hurting business already," he said. "And once the regular cigarettes are gone, I think people will probably try to quit smoking because of the terrible taste."

The fire-safe cigarette started appearing in area stores in May, two months ahead of the state mandate.

The cigarettes are made with two to three bands of less porous paper designed to slow down the burning tobacco. Smokers have to puff on the cigarette for it burn through the bands.

Indiana will join 31 other states that already or by the end of summer will require vendors to sell only fire-safe, or low-ignition, cigarettes designed to reduce fire deaths.

"There's no difference in the tobacco or the paper used in the new cigarettes and the regular cigarettes," Indiana State Fire Marshal James Greeson said. "But smokers have to inhale in order for the tobacco to burn through the band or the cigarettes will self-extinguish."

Note that this s actually a 2008 law, that by its terms will not take effect until July 1, 2009. It may be found at IC 22-14-7.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Law

Ind. Decisions - One today, so far, from Supreme Court

Referring back to this June 24th ILB entry headed "Many more Indiana Supreme Court opinions expected before July 1," one more of the 2008 argued criminal cases still pending has been decided today.

In George Jackson v. State of Indiana, a 7-page, 5-0 opinion, Justice Rucker writes:

George Jackson appeals his conviction for unlawful possession of a firearm by a serious violent felon. Finding the search warrant for Jackson's home valid under the good faith exception to the warrant requirement, we affirm the conviction. * * *

Jackson appealed contending the trial court erred in denying his pretrial motion to suppress. Noting that because he is appealing following a conviction, and thus the issue is more appropriately framed as whether the trial court properly admitted the evidence at trial, a divided panel of the Court of Appeals reversed Jackson's conviction. According to the majority the search warrant was invalid under Indiana Code § 35-33-5-2, and the evidence seized during the search was not otherwise admissible under the good faith exception to the warrant requirement. Jackson v. State, 889 N.E.2d 830 (Ind. Ct. App. 2008). Having previously granted transfer we now affirm the trial court. * * *

The Court of Appeals' majority examined the evidence before the issuing judge and concluded it fell short of the probable cause required under Indiana's warrant statute. More particularly, the court noted that Detective Blackwell‟s sworn oral testimony was based on hearsay statements of the confidential informant and determined there was no testimony establishing the informant‟s credibility as required by I.C. § 35-33-5-2(b). Chief Judge Baker dissented emphasizing that the confidential informant had a relationship with police, formed by making several controlled buys in the past for the Drug Task Force. Jackson, 889 N.E.2d at 835-36. * * *

We acknowledge that Detective Blackwell's testimony is abbreviated, and public complaints have their limitations. See, e.g., Pawloski v. State, 269 Ind. 350, 354-55, 380 N.E.2d 1230, 1232-33 (1978) (test for determining reliability of information varies based on whether the source is an anonymous tipster, a professional informant, or a cooperative citizen). But the heart of the matter is not whether a court of review agrees or disagrees about the existence of probable cause sufficient to support the issuance of a search warrant; rather the issue is whether when viewed from a totality of the circumstances there was enough evidence before the issuing court that would allow the court to make that call. We are of the view the evidence in this case meets that standard.

Conclusion. We therefore affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - What about the new budget agreement? What will be in it?

Reports this morning are that a budget agreement may have been reached and that the House and Senate will vote on it later today. If agreement is reached, it will be sent to the Governor, who would be expected to act on it before the end of the day.

This agreement initially will be in the form of a Conference Committee Report. The question is, what precisely will be in it?

The papers report about only the broadest of outlines of an agreement. Will anyone have a chance to review it in detail before it is acted upon?

As we have seen in past years, the budget bill is not limited to appropriations. Seemingly anything may be contained within its hundreds of pages of dense text. (See this ILB entry from June 23rd on some of what is in the version of HB 1001 adopted by the Senate.)

The House and Senate rules contain some safeguards to insure that legislators, member of the public, and the Governor, have at least a limited opportunity to review a bill before it becomes a law. Here is Senate Standing Rule 83(a):

83. (a) Each report of a conference committee for the adjustment of differences between the Senate and House, together with a digest of the bill and the changes made, shall be reduced to writing, signed by the appointed conferees, reviewed by the Majority Attorney and Minority Attorney, filed with the Office of the Principal Secretary at least eight (8) hours before action is taken thereon, and distributed to the Senators at least four (4) hours before action is taken thereon.
Here are House Standing Rules 163 and 164:
163. Placed on Members’ Desks. All reports of conference committees for adjustment of differences between the House and Senate together with a digest of the bill shall be filed with the Principal Clerk, reproduced, placed on each member’s desk, and made available on the House computer network as soon as practicable.

164. Time on Members’ Desks.

164.1 During the first regular session, conference committee reports shall be laid over for twenty-four (24) hours after filing.

164.2 During the first regular session, the budget bill shall be laid over for twenty-four (24) hours after filing. This rule may not be suspended without a two-thirds (2/3) vote of the members of the House.

164.3 During the second regular session, such reports shall be laid over for twenty-four (24) hours after filing.

164.4 Such reports shall then be read in their entirety again and placed before the House for action.

Expect these rules to be suspended. Ordinarily, within the next few hours, the CCRs on HB 1001 of this special session would be available for review here, at the very bottom of the page. But today is when all the safeguards break down.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Government | Indiana Law

Monday, June 29, 2009

Ind. Courts - A bizarre story this afternoon involving the wife of a Marion Superior Court judge [Updated]

Heather Gillers of the Indianapolis Star has the story. Some quotes:

A former IMPD employee who is the wife of a Marion Superior Court judge was arrested Friday on preliminary charges she forged another judge's name to stop foreclosure of their home, according to the Indianapolis Metropolitan Police Department.

Kristina Nelson, 43, who worked as a civilian public assistance officer for IMPD, told police she had signed Judge Sheila Carlisle's name on a counterfeit document claiming she and her husband had been attacked and ordering Everhome Mortgage to stop the foreclosure until the couple could recover, according to the police report, which was filed Friday.

She told police that her husband, Marion Superior Court Judge William Nelson, knew nothing about the incident. Kristina Nelson is Carlisle’s sister-in-law, the police report said. Carlisle is married to her brother. * * *

Kristina Nelson faxed the document to Everhome Mortgage on June 17, according to police. The document said that the Nelson’s had been the victims of an assault and that William Nelson had been shot and Kristina Nelson had suffered injuries that required her jaw to be wired shut — none of which was true, police said.

Carlisle told police investigators the signature was not hers but that she recognized the address as belonging to her sister-in-law, Kristina Nelson, the police report said.

[Updated 6/30/09] This morning's Indianapolis Star has an updated version of the story, now bylined by Heather Gillers and Jon Murray. It begins:
Forging a judge's signature. Pretending to be the victim of a vicious assault. Impersonating a co-worker at the Indianapolis Metropolitan Police Department.

Few would expect such actions from a police employee, much less the wife of a judge. But those are the desperate and criminal steps police say the wife of Marion Superior Court Judge William Nelson took in an effort to avoid foreclosure on the couple's Geist home.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Indiana Courts

Environment - More on: "EPA secrecy on coal-ash list worries lawmakers: Some of 44 'high hazard' sites might be in Kentucky, Indiana" [Updated]

Updating this ILB entry from June13th, the EPA has had a change of heart and has released the list, according to this AP story by H. Josef Hebert. Some quotes:

WASHINGTON -- The Environmental Protection Agency on Monday made public a list of 26 communities in 10 states where residents are potentially threatened by coal ash storage ponds similar to one that flooded a neighborhood in Tennessee last year.

North Carolina has the most sites on the list, a dozen. The largest concentration is near Cochise, Ariz., where there are seven storage ponds.

The agency said it will inspect each of the 44 coal ash sites located near communities to make certain they are structurally sound. The sites are being classified as potentially highly hazardous because they are near where people live and not because of any discovered defect.

"The high hazard potential means there will be probable loss of human life if there is a significant dam failure," said Matt Hale, director of EPA's office of research, conservation and recovery. "It is a measure of what would happen if the dam would fail. It is not a measure of the stability of the dam." * * *

Until now, the national coal ash site list has not been provided to the public. Earlier this month the Army Corps of Engineers said it didn't want the locations disclosed because of national security and that it could help terrorists target such facilities. Hale said that issue has been resolved.

The EPA has been to half of the 44 sites and expects to have reports on those sites in the near future, Hale said. The EPA inspections are continuing. The EPA also is reviewing state inspection reports at some of the sites.

The seven ponds near Cochise, Ariz., hold material from the Apache Station Combustion Waste Disposal Facility operated by Arizona Electric Power Cooperative.

The 10 states, the number of sites, and communities are:

-North Carolina, 12 (Belmont, Walnut Cove, Spencer, Eden, Mount Holy, Terrell and Arden).

-Arizona, 9 (Cochise, Joseph City).

-Kentucky, 7 (Louisa, Harrodsburg, Ghent and Louisville).

-Ohio, 6 (Waterford, Brilliant and Cheshire).

-West Virginia, 4 (Willow Island, St. Albans, Moundsville, New Haven).

-Illiniois, 2 (Havana, Alton).

-Indiana, 1 (Lawrenceburg).

-Pennsylvania, 1 (Shippingport).

-Georgia, 1 (Milledgeville).

-Montana, 1 (Colstrip).

[Updated] Here is a more comprehensive story, from USA Today, with a link to the EPA Fact Sheet.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Environment

Ind. Decisions - Legal filings indicate Office of Attorney General and the Indiana Gaming Commission to be somewhat at odds

Readers of Indiana Legislative Insight and Indiana Gaming Insight are aware of a "war of words" going on in filings before the Indiana Supreme Court, between the Office of the Attorney General and the Indiana Gaming Commission, relating to the case of FOUNDATIONS OF EAST CHICAGO, INC. -V- ATTORNEY GENERAL (49 A 02 - 0711 - CV - 00987).

Here is the list of ILB entries on this case, including this entry on the April 28th COA opinion, which provides essential background.

The ILB has obtained and is making available a number of the filings:

  1. First, the Docket, as of today - 6/29/09. I've highlighted entries (beginning on p. 7) related to the documents which follow.

  2. The 5/28/09 Amicus Curiae brief of the Indiana Gaming Commission in support of a petition to transfer.

  3. The 6/5/09 Motion to Strike Amicus Curiae brief of the Indiana Gaming Commission, filed by the OAG. Plus the OAG's Memorandum in Support of the Motion to Strike the Amicus Curiae Brief.

  4. The 6/12/09 Response in opposition to motion to strike, filed by the Indiana Gaming Commission

  5. The OAG's 6/16/09 Motion for Leave to File Reply in Support of Motion to Strike.

  6. The OAG's 6/16/09 Reply.

  7. The 6/22/09 Combined Response of the State to the Petition to Transfer and the Motion to Consolidate.

  8. The 6/30/09 Order of the Supreme Court Striking Amicus Curiae Brief filed by Indiana Gaming Commission.
The ILB plans to write more about the Office of the Attorney General, which is not a constitutional office, and the constitutional separation of powers.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Kenneth Baldi v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:

Appellant-defendant Kenneth Baldi appeals the trial court’s denial of his petition for habeas corpus relief. Specifically, Baldi argues that the trial court erroneously concluded that the Indiana Parole Board (Parole Board) had not “turned over” the sentence that was imposed for Aggravated Battery, a class B felony. Baldi claims that the Parole Board discharged him from that sentence and, as a result, the trial court should have granted his motion for a writ of habeas corpus. Concluding that Baldi has failed to demonstrate any entitlement to relief, we affirm the judgment of the trial court. * * *

Baldi is apparently arguing that he could not have violated his probation until he had been “turned over” to begin serving his sentence on the FD-25 charge.

Notwithstanding this contention, we have determined that a defendant’s probationary period begins from the date of his sentencing and a violation of the terms of his probation may occur even though he has not yet begun serving his sentence, let alone his probation. Baker v. State, 894 N.E.2d 594, 598 (Ind. Ct. App. 2008). Because a defendant’s probation can be revoked at any point after sentencing, the fact that Baldi’s probation on the FD-25 charge has been revoked, without more, does not establish that he ever started serving his sentence in that cause. In short, Baldi has failed to present any evidence in support of his contention that the Parole Board “turned over” the sentence on the CF-390 charge. And even though Baldi may have violated the terms of his probation on the FD-25 charge, that fact is not sufficient to support his contention. As a result, we conclude that the trial court properly denied Baldi’s request for relief.

In Ruben Maldonado v. State of Indiana, an 11-page opinion, Chief Judge Baker writes:
Appellant-petitioner Ruben Maldonado appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erroneously concluded that he did not receive the ineffective assistance of trial counsel. Maldonado argues that his attorney should have attempted to introduce evidence of the victim’s alleged statements about a sexual encounter with an imaginary brother. We find that even if these statements had fallen under the purview of the Rape Shield Rule,1 they would have been admissible via the common law exception for demonstrably false accusations of sexual misconduct. That said, we find that trial counsel could have made a reasonable strategic decision to keep this evidence out of the record for fear of evidence of Maldonado coaching his six-year-old son prior to his deposition coming into evidence as well. Therefore, we find that trial counsel was not ineffective and affirm.
NFP civil opinions today (0):

NFP criminal opinions today (6):

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

Curtis Lee Weida v. State of Indiana (NFP)

Antonio Phillips v. State of Indiana (NFP)

Darius T. Bloch v. State of Indiana (NFP)

Nathaniel Selby Bradley v. State of Indiana (NFP)

James W. Oswalt, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals caseload down considerably in calendar 2009

The ILB has learned that the Court of Appeals case inventory is down 17% for the first five months of the year, so the overall caseload--and, correspondingly, oral arguments--has been lessened significantly. And on top of that, of course, the fact that summertime is always slow anyway.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 26, 2009

Here is the Clerk's transfer list for the week ending June 26, 2009. It is three pages long.

No cases were granted transfer last week.


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. Note that the search is now current through the May 22nd list.

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, June 29, 2009
Posted to Indiana Transfer Lists

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

In David Farr v. St. Francis Hospital (SD Ind., Judge Barker), an 11-page opinion, Judge Evans' opinion affirms the district court dismissal of Farr's claims. Some quotes:

David Farr contends that he was fired from his employment at St. Francis Hospital and Health Centers in Indianapolis because he is a man. He filed this action alleging sex discrimination in employment, 42 U.S.C. § 2000e-2(a)(1), and, as relevant to this appeal, he tacked on pendent state law claims for defamation and breach of the covenant of fair dealing. The state law claims were dismissed and, later, summary judgment was granted on the discrimination claim. Both decisions are subject to our de novo review on Farr’s appeal. Village of DePue, Ill. v. Exxon Mobil Corp. 537 F.3d 775 (7th Cir. 2008); Jackson v. County of Racine, 474 F.3d 493 (7th Cir. 2007). * * *

Farr then filed the present lawsuit, claiming that he was the victim of gender discrimination. In his charge before the Equal Employment Opportunities Commission he made the following claim: “My attorney and our computer expert immediately recognized the list as having been secretly put on my computer by a virus and not by any human. It seems to me that any fair-minded person should instantly realize I didn’t create the list.” During his deposition he was asked how he could reconcile that statement with his admission that he visited 17 of the sites. He again acknowledged that he visited the sites. Nevertheless, his sex discrimination claim rests on his view that the Hospital assumed he was guilty of looking at the pornography sites because he was the only man working in the department. * * *

The bottom line is that Farr admits that he visited some of the inappropriate Web sites. The Hospital says that is why he was fired, and he has done nothing to show otherwise.

In addition, Farr’s state law claims were properly dismissed. He claims the employee handbook gave him the right to be treated fairly, but that he wasn’t—in breach of the covenant of fair dealing. Indiana, however, adheres to the employment-at-will doctrine, and Farr was an at-will employee. Evaluated under Indiana law, the Hospital’s employee handbook does not change the nature of Farr’s employment. As we recognized in Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008), the Indiana Supreme Court has entertained a challenge to the at-will doctrine based on an employee handbook, but rejected the challenge and concluded:

We re-affirm the vitality of the employment-at-will doctrine in Indiana and the general rule that adequate independent consideration is necessary to convert an at-will relationship into an employment relationship requiring an employer to discharge an employee for good cause. We decline plaintiffs’ invitation to construe employee handbooks as unilateral contracts and to adopt a broad new exception to the at-will doctrine for such handbooks.
Orr v. Westminster Vill. North, Inc., 689 N.E.2d 712, 722 (Ind. 1997). As we noted in Workman v. United Parcel Serv., Inc., 234 F.3d 998, 1001 (7th Cir. 2000), “Employment at will is the norm in the United States.” * * *

Lastly, Farr claims that the Alverno report is defamatory. The problem is, however, that the report was used during the grievance proceedings that Farr initiated and in response to a report Farr submitted. In such a situation, statements made by the company to explain its actions are privileged. In fact, the employer has a duty to explain its actions. See Ernst v. Indiana Bell Tel. Co., 475 N.E.2d 351 (Ind. Ct. App. 1985).

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

Courts - SCOTUS final three decisions today

The SCOTUS has reversed the 2nd Circuit's ruling in Ricci, 5-4. Here is the opinion (may be slow). Thanks once more to SCOTUSLaw blog. From SCOTUSblog:

Kennedy delivered the 5-4 majority opinion of the Court in Ricci. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justice Scalia and Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.
Goldstein remarks:
Various comments ask about the effect of Ricci on the Sotomayor hearings. The decision will certainly be front and center. Her position is the same as Justice Souter's, so I think it it comes across mostly as an ideological disagreement.
Cuomo is decided. Justice Scalia writes for the Court. The regulation is invalid. States have the power to police discrimination in mortgage lending.
Background here. Opinion here.

Goldstein report: "Citizens United, the Hillary movie campaign finance case" will be reargued. "This is very rare that the Court does not resolve all of its cases for the Term."

"Court rules for white firefighters over promotions"
is the headline to this just-posted AP story.

Here is the SCOTUSBlog wrapup of this morning's actions.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Courts in general

Courts - The realities of plea bargaining

Douglas A. Berman's Sentencing Law and Policy blog had an entry yesterday pointing to: "local paper from Maryland this morning has these two pieces talking about the dynamic realities of plea bargaining."

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Courts in general

Ind. Courts - More on: Marion County Traffic Court in the news today

Updating this ILB entry from May 5th, Jon Murray reports this morning in the Indianapolis Star in a story that begins:

Marion County's second try at finding a new site for its busy traffic court and a satellite probation office could receive a crucial green light tonight.

The City-County Council is scheduled to vote on a proposal to move traffic court from the Far Eastside across town to a former department store at West 38th Street and High School Road. Plentiful parking, easy access to bus lines and ample elbow room are among factors that could make the state's busiest court a more inviting place.

But it's still the inclusion of the probation office -- and the convicted criminals who would visit -- that draws ire from some neighbors.

Similar concerns by neighbors and business leaders in April doomed plans to move to a shopping center near Lafayette Square Mall.

Since then, Marion Superior Court officials have agreed to keep references to probation off the building's signs; they might simply read "Government Center." The probation office, which is replacing one nearby, would serve only probationers living on or near the Northwestside -- a consideration that failed to convince some skeptics at recent community meetings.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to Indiana Courts

Law - "Paper Avalanche Buries Plan to Stem Foreclosures"

Here is a quote from a story today in the NY Times by Peter S. Goodman:

For now, progress is constrained by the limited capacities of mortgage servicing companies, said Michael S. Barr, the assistant Treasury secretary for financial institutions. He offered the first signs of the administration’s impatience with the institutions that control home loans.

“They need to do a much better job on the basic management and operational side of their firms,” Mr. Barr said. “What we’ve been pushing the servicers to do is improve their infrastructure to make sure their call centers are doing a better job. The level of training is not there yet.”

This story may not go far enough. Bankruptcy lawyers have had to deal with mortgage servicing fraud for years. Take a look at this blog, The Home Equity Theft Reporter, and this entry from more than two years ago, citing this story from RealtyTimes.

The ILB had this entry on Nov. 7, 2007 headed "Bankruptcy law changes and mortgage servicing fraud may heighten impact of mortgage crisis."

[MORE] From the Supreme Court website, this release today that begins:

The Indiana Supreme Court encourages Hoosiers facing foreclosure to consider making an important call on June 30th. Lt. Governor Becky Skillman announced a statewide phone-a-thon that will give troubled borrowers the opportunity to access foreclosure prevention assistance. On June 30, between 5:00 p.m. and 10:00 p.m. EDT, Hoosiers having trouble paying their mortgage will have the opportunity to call a toll-free number and speak with a member of the Indiana Foreclosure Prevention Network (IFPN).

During this event, troubled borrowers will be able to ask questions and discuss their situation with an IFPN counselor, attorney or other qualified volunteer. Based on their mortgage situation, borrowers will receive a follow-up packet with details about the next steps they should take.

Posted by Marcia Oddi on Monday, June 29, 2009
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week and next [Updated]

This week's oral arguments before the Supreme Court (week of 6/29/09):

Thursday, July 2nd

Next week's oral arguments before the Supreme Court (week of 7/6/09):

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 6/29/09):

Tuesday, June 30th

Next week's oral arguments before the Court of Appeals (week of 7/6/09):

Wednesday, July 8th

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

The past COA webcasts are accessible here.

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, June 29, 2009
Posted to Upcoming Oral Arguments

Sunday, June 28, 2009

Law - Interesting observation on U. of Illinois Law School admissions scandal

This entry today at Brian Leiter's Law School Reports on the Chicago Tribune series on "the use of political clout to get sub-par students admitted to the University of Illinois, including the law school" makes the point that "the University of Illinois is hostage to the public purse for a lot of its operations" and "the same story is waiting to be written about admissions at every state university in the country."

Posted by Marcia Oddi on Sunday, June 28, 2009
Posted to General Law Related

Ind. Law - Protective orders by themselves are no panacea

That is a conclusion to be drawn from this chilling front-page story today in the Indianapolis Star, reported by Francesca Jarosz. The headline: "3 domestic violence deaths prompt questions of what can be done." Some quotes:

For Angela Warnock, getting a protective order against her abusive husband was a huge step toward freedom.

In the weeks after she obtained it May 27, her friends noted the typically soft-spoken woman was more open to talking about her problems.

But her fatal stabbing June 21 -- a few days before she was to move to Hawaii with her daughters -- highlights a grim reality: Protective orders can't save those whose abusers intend to kill. In cases such as Warnock's, experts say, preventing such a tragedy requires drastic steps.

"A protective order is just not enough. Going to a friend's house is not enough. You need a shelter," said Ann DeLaney, executive director of the Julian Center in Indianapolis.

Police say Warnock's husband, Joseph Warnock, entered her Brownsburg home on Father's Day and stabbed her multiple times. Their daughters, ages 8 and 12, were present. He has been charged with murder.

The death of Warnock, 38, a devoted mother and hairstylist whom friends remembered for her empathy and thoughtfulness, was the third domestic violence fatality in less than two months in the Indianapolis metro area.

In all three cases, the women recently had broken away from their husbands. Experts say this is a point at which victims are at the greatest risk, because abusers think they are losing control. * * *

There have been 44 such homicides statewide, including 15 in Marion County, since July 1, 2008, according to the Indiana Coalition Against Domestic Violence, which tracks the numbers by fiscal year.

Victims' advocates say protective orders serve as valuable tools that can keep violence from escalating. But their power is limited and depends on how well they are enforced.

Violators of protective orders typically would be charged with a misdemeanor, but in some cases, charges are not filed, said Maria Larrison, executive director at Sheltering Wings in Danville.

Another shortcoming, experts say, is that the system often fails to identify subjects of protective orders who are highly dangerous. That's something Campbell said could be done by evaluating domestic violence offenders or having victims complete a risk assessment.

Some who have protective orders realize their limitations. A domestic abuse victim, who spoke on the condition of anonymity because she fears for her safety, said the protective order she received this month has helped encourage her abuser to stay away but hasn't alleviated her worries.

"I'll live in fear the rest of my life and hope to God that a protective order helps me," she said. "But if the law doesn't reinforce the protective order, it's not going to do any good."

On the day Angela Warnock was granted a temporary protective order, she called the Hendricks County Sheriff's Department to report that Joseph Warnock kept calling and harassing her, according to emergency dispatch records.

A month later, during a hearing to determine whether that protective order should be permanent, Warnock testified that the temporary order hadn't stopped her husband from stalking the family. He had called up to 18 times a day, and sent gifts and cards, text messages and flowers. * * *

Advocates in the Indianapolis area are working to increase awareness about domestic violence in an attempt to prevent future tragedies.

A new state law goes into effect Wednesday, giving courts the authority to require a protective order violator to wear a GPS monitoring unit that also informs victims if their attacker is nearby.

Central Indiana's Domestic Violence Network is leading a three-year effort to improve educational efforts and strengthen the way domestic violence-related cases are handled by the criminal justice system, said Julie Marsh, the group's chief executive officer.

Posted by Marcia Oddi on Sunday, June 28, 2009
Posted to Indiana Law

Ind. Laws - "New Ind. laws include teen diver cell phone ban"

Mike Smith of the AP has a story on some of the new laws that will take effect Wednesday, July 1. Some quotes:

Indiana drivers under age 18 will soon be breaking the law if they use a cell phone while driving, as will school bus drivers who fail to make sure all students are off the bus at the end of their routes.

The new laws, which take effect Wednesday, are among dozens enacted during the regular legislative session that ended April 29. Supporters say they hope the laws better protect the state's young people.

Those caught ignoring the cell phone ban could face a fine of up to $500. * * *

School bus drivers also could face $500 fines if they fail to check for children on board at the end of their routes. The law arose after three South Bend students were left on school buses last year and a 4-year-old was left alone inside a parked school bus in Richmond earlier this year.

Another new law increases the prison term for anyone who murders or attempts to murder a pregnant woman and causes the loss of her unborn child.

Posted by Marcia Oddi on Sunday, June 28, 2009
Posted to Indiana Law

Courts - C-SPAN features CJ Roberts and panel on recent opinions

The C-Span description of last evening's expanded America and the Courts reads:

U.S. Supreme Court Chief Justice John Roberts made remarks during a Judicial Conference hosted by Fourth Circuit Court of Appeals Judge Harvie Wilkinson. Following his remarks, he joined a discussion on the current court term.
The one-on-one interview with CJ Roberts is one-half hour long and is directly available here.

The excellent two-hour panel discussion on this term's cases, available here, includes Linda Greenhouse, Jan Crawford Greenberg, Northwestern Law Prof. John McGinnis, Ted Olsen, and is chaired by Prof. A.E. Dick Howard.

Posted by Marcia Oddi on Sunday, June 28, 2009
Posted to Courts in general

Ind. Law - More on "'The officers didn't know he wasn't in the legislature,' Mount said. 'They called the prosecutor who advised that it was safer not to arrest him' on a misdemeanor charge.'"

Updating this ILB entry from June 26th, an unattributed AP story today in the Indianapolis Star clarifies the prosecutor's office response:

On Friday, Sgt. Matthew Mount said police were called to the service station in downtown Indianapolis by an employee who reported a woman lying face-down and barefoot in the station's parking lot after she and a man arrived in a taxi. When officers responded, they found the man carrying the woman's shoes and walking away from the station toward an alley.

"He's approached by one of the officers. He's kind of belligerent, doesn't want to cooperate. He doesn't know where he is, how he got there, drunker than snot," Mount said. "The officer tries to lock him up for public intox, the guy says, 'You can't lock me up. I'm Dennie Oxley, the legislature, we're in session, I have immunity.'"

Mount said the officer then called his supervisor, and the supervisor called the prosecutor's office, which advised them to release Oxley if he had transportation home and to "deal with the immunity thing later."

More from the story:
A February drunken driving charge against Indiana's 2008 Democratic candidate for lieutenant governor is on hold amid new questions of whether he misrepresented himself as a legislator this week to avoid possible arrest for public intoxication.

Barry Brown, a special prosecutor in Bloomington, said Saturday he had hoped to resolve the drunken driving charge against former Rep. Dennie Oxley II at a hearing next week. Brown said that's on hold as investigators look into a separate incident involving Oxley in Indianapolis on Friday.

"We were going to try to work out a resolution. Obviously, this little incident is going to make that more difficult," Brown said.

Police say Oxley, 38, and a 21-year-old woman were found drunk at a gas station early Friday and that he claimed immunity from arrest because the Legislature is in session. Authorities later found out Oxley was no longer a lawmaker, and Marion County Prosecutor Carl Brizzi said he would meet with officers on Monday before he decides whether to file charges. * * *

[Oxley] "We were going to try to work out a resolution. Obviously, this little incident is going to make that more difficult," Brown said.

Police say Oxley, 38, and a 21-year-old woman were found drunk at a gas station early Friday and that he claimed immunity from arrest because the Legislature is in session. Authorities later found out Oxley was no longer a lawmaker, and Marion County Prosecutor Carl Brizzi said he would meet with officers on Monday before he decides whether to file charges.

Posted by Marcia Oddi on Sunday, June 28, 2009
Posted to Indiana Law

Saturday, June 27, 2009

Ind. Courts - St. Joe Circuit Judge Michael Gotsch has ordered County Probate Judge Peter Nemeth, who handles juvenile cases, to appear in court Thursday

Some quotes from a long story today by Dave Stephens of the South Bend Tribune:

SOUTH BEND - Two judges are embroiled in a legal battle that could force one judge to appear before the other in court next week, as part of a case filed by a formerly homeless man seeking custody of his son.

Circuit Judge Michael Gotsch has ordered County Probate Judge Peter Nemeth, who handles juvenile cases, to appear in court Thursday to explain why a 17-year-old boy hasn't been released from a foster home and returned to his father.

Gotsch made the order after a writ of habeas corpus petition was filed by Walter Jennings, who is seeking the custody of his son. Also ordered to appear are Linda Cioch, director of the county's Division of Child Services, and foster parent Christine Jacobs. * * *

James Masters, Nemeth's law partner and attorney, said Gotsch has no jurisdiction in the case and cannot make Nemeth appear in court.

On Friday, Masters filed a motion to quash the writ of habeas corpus, and he said he is confident Gotsch will rescind the writ once he reads the motion to quash.

“Nobody is going to appear (Thursday),” Masters said. “My motion to dismiss has been filed. My motion to quash has been filed. Judge Nemeth is not going to waste his time appearing before a judge who has no jurisdiction.”

Posted by Marcia Oddi on Saturday, June 27, 2009
Posted to Indiana Courts

Courts - SCOTUS to decide final 3 cases on Monday

Mark Sherman of the AP reports today in the Washington Post:

WASHINGTON -- A closely watched discrimination lawsuit by white firefighters who say they have unfairly been denied promotions is one of three remaining Supreme Court cases awaiting resolution Monday.

The court intends to finish its work for the summer that day, Chief Justice John Roberts said. The court also will say goodbye to Justice David Souter who has announced he will retire "when the court rises for the summer recess."

Sonia Sotomayor, nominated to take Souter's place, was one of three appeals court judges who ruled that officials in New Haven, Conn., acted properly in throwing out firefighters' promotions exams because of racially skewed results. * * *

The other two unsettled cases involve campaign finance law and states' ability to investigate alleged discrimination in lending by national banks.

The court is considering whether a movie that was critical of Hillary Rodham Clinton during her presidential campaign should be regulated as a campaign ad.

The scathing 90-minute documentary about the former New York senator and current secretary of state was made by a conservative group. It wanted to air television ads in important Democratic primary states and makes the movie available to cable subscribers on demand, without complying with federal campaign finance law.

The Federal Election Commission and a lower court in Washington have said the not-for-profit group, Citizens United, must abide by campaign finance restrictions. The high court's conservative justices appeared especially skeptical of that view when the case was argued in March.

In the dispute over investigating national banks, the Obama administration says federal law prohibits states from looking at the lending practices of those banks, even under state anti-discrimination laws.

Federal courts have so far blocked an investigation begun by New York, which is backed by the other 49 states, of whether minorities were being charged higher interest rates on home mortgage loans by national banks with branches in New York.

Posted by Marcia Oddi on Saturday, June 27, 2009
Posted to Courts in general

Environment - "Pipeline set to deliver natural gas to Indiana by Monday"

The ILB has posted a number of entries about the construction of the Rockies Express Pipeline across the state and the related lawsuits. A story today by Jason Thomas of the Indianapolis Star begins:

Natural gas is expected to begin flowing by early next week through a major portion of an interstate pipeline that stretches from Missouri to Ohio and through Indiana.

Pipeline officials have targeted Monday as the in-service date for a 444-mile segment of the 638-mile Rockies Express-East buried pipeline that runs through nine Indiana counties, including Hendricks, Johnson, Morgan and Shelby counties in Central Indiana.

Posted by Marcia Oddi on Saturday, June 27, 2009
Posted to Environment

Ind. Decisions - More on "Third trial ordered for Camm"

"Another Camm trial would put strain on county’s finances" is the headline to this story today by Chris Morris of the New Albany / Jeffersonville News & Tribune:

Prosecuting the two David Camm murder trials and subsequent appeals have cost Floyd County taxpayers $2 million, according to the auditor’s office.

That total likely will grow following Friday’s decision by the Indiana Supreme Court to toss out Camm’s murder conviction.

“I don’t know what we’ll do,” said County Councilman Larry McAllister. “It’s like pushing us off a cliff.”

Floyd County is facing a financial hardship following the recent economic downturn, which has produced fewer tax dollars. County Council President

Ted Heavrin said there is $50,000 set aside for a possible third Camm trial.

The county also would receive funds from the state for a retrial. According to Indiana Code 35-38-4-7, the maximum amount that may be reimbursed for all proceedings and all offenses arising out of the same facts is $50,000. The maximum amount that may be paid in any particular year for all expenses otherwise eligible for reimbursement under this section is $1 million.

“We don’t have a choice now,” Heavrin said of a possible third trial.

State Rep. Ed Clere, R-New Albany, said he is going to look into the growing trial costs facing Floyd and other border counties.

He said the problem is ongoing, as some crimes are committed in counties by people in other states, but counties bear the burden of the trial costs.

“It’s an issue I have been really interested in,” Clere said. “There are necessary costs associated with insuring justice. But there is room for discussion on how those costs should be allocated between local government and the state.”

The ILB has had a number of entries on the costs of death penalty cases at the state and local level, including this one from Feb. 25th.

Posted by Marcia Oddi on Saturday, June 27, 2009
Posted to Ind. Sup.Ct. Decisions

Friday, June 26, 2009

Ind. Decisions - Supreme Court decides one more case today

In Adoption of T.B.; W.G. v. D.B. & J.B., a 13-page, 4-1 opinion, Justice Dickson writes:

The question presented is whether the appellant biological father's consent to the adoption of his child was irrevocably implied when he failed to file a motion to contest in the adop-tion court but did take concurrent steps to establish paternity and preserve and assert his parental rights in another court. Upon our consideration of the asserted statutory provisions and the facts of this case, we find that this appellant father's actions did not irrevocably imply his consent, upon which the adoption decree was predicated, and thus reverse the judgment of the trial court. * * *

In sum, we hold that under Indiana Code § 31-19-9-12(1), to be deemed to have implied his irrevocable consent to an adoption, a putative father must fail to file both a paternity action and a motion to contest the adoption. [ILB emphasis] The appellant-father here undisputedly timely filed his paternity action. It is therefore unnecessary to decide whether his timely attempt to contest the adoption, filed in the Circuit Court rather than in the Superior Court where the adoption was pending, satisfied the adoption implied consent statute. The paternity action sufficed to preclude a finding of implied irrevocable consent to the adoption.

Because the trial court's decree of adoption was predicated upon its erroneous determina-tion that the father's consent to the adoption was irrevocably implied by law, we reverse the judgment and remand this matter to the Superior Court for further proceedings not inconsistent with this opinion.

Sullivan and Rucker, JJ., concur. Boehm, J., concurs with separate opinion.

[Justice Boehm] I concur in the majority opinion. I write separately to observe that these statutes, taken together, seem to provide multiple opportunities for confusion or even intentional obfuscation. * * *

I hope the General Assembly will consider requiring that a putative father wishing to con-test an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.

Shepard, C.J., dissents with separate opinion. [some quotes] Holding that a putative father can detail an otherwise lawful adoption by doing just one but not the other, as the Court does today, may help the occasional blunderer, like the inmate in this case.

But it will also provide a very simple roadmap for obstructionists, a tool to use in pre-venting what my colleagues call the “expeditious placement of eligible children.”

In this instance, it prevents the expeditious placement of a child who has known only these adoptive parents during the entire thirty-two months since his birth.

As for where a putative father must object, I find it easy enough to say that he must ob-ject in the court where the adoption is filed. It is true that the statute does not explicitly require that, but neither do the Rules of Trial Procedure adopted by this Court, for example. The Trial Rules do not say explicitly that one must file the answer to a complaint in the same court where the complaint was filed. Likewise, there are other statutes that provide an opportunity for objec-tion, like the chance to object to an appraiser’s report in a condemnation, that do not compel that the objection be filed in the court where the condemnation is pending. I would like to think that in either instance we would hold that a person who filed in another court or another county didn’t get the job done. I would so hold here, saying that the putative father did not timely object to the adoption and that his consent was given by operation of law.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Third trial ordered for Camm"

The Supreme Court's ruling this morning in the case of David R. Camm v. State of Indiana (ILB summary here) is the subject of several stories this afternoon.

Ben Zion Hershberg of the Louisville Courier Journal has a story that begins:

The Indiana Supreme Court on Friday ordered a third trial for former Indiana State Trooper David Camm, who was found guilty in two previous trials of murdering his wife and two small children in September 2000 in the garage of their Georgetown home.

In a 4-1 decision, the Supreme Court said "speculative" evidence that Camm molested his daughter a day or two before the murders should not have been allowed by the judge because it could inflame the jury.

The court also said a statement by a friend of Camm's wife that she expected to see him at 7 to 7:30 p.m. the night of the murders should not have been allowed because it was hearsay that couldn't be challenged because Camm's wife, the source of the statement, is dead and couldn't be questioned about it.

Chief Justice Randall Shepard dissented from the majority, arguing that "the two reversals entered by the appellate courts in this case have unnecessarily sanitized the evidence against David Camm."

Shepard said at least some of the evidence on which Camm's first trial in Floyd County Superior Court was reversed—that he had extra-marital affairs—should have been allowed. The affairs could be proof of a motive, Shepard said.

He also said evidence that Camm's daughter was molested was allowable because it could provide "an inference" about motive.

The majority disagreed, however, saying there was no connection of Camm to the molestation so it shouldn't have been allowed.

Matt Thacker of the New Albany News & Tribune reports in a story that begins:
The Indiana Supreme Court overturned the conviction of David Camm in the deaths of his wife and two children and ordered a third trial.

Camm, 45, was convicted in 2002 and again in 2006 of murdering his wife Kimberly, 35, and their children, Bradley, 7, and Jill, 5, at their Georgetown home in 2000.

Floyd County Prosecutor Keith Henderson will now have to decide whether to try Camm — at one time an Indiana State Police trooper — again.

This from a press release issued at 3:55 PM by Attorney General Greg Zoeller:
“While we are disappointed that a new trial is required, we agree with the Court on the key point: There was sufficient evidence of Camm’s guilt to support the jury’s verdicts. Indeed, there was a mountain of evidence against Camm, distinct from the disputed testimony at issue in this opinion,” Zoeller said.

“Chief Justice Randall Shepard’s dissenting opinion that a second reversal is unwarranted under these circumstances was what we had hoped to have as a majority view.

“Accordingly, the Office of the Indiana Attorney General will be filing a petition for a re-hearing with the Indiana Supreme Court. That request will be filed within 30 days,” Zoeller added.

“As Indiana Attorney General, it is my obligation to represent the prosecution when criminal convictions are appealed. I stand with the Floyd County Prosecutor and all prosecutors throughout the state in the decisions they must make. I will provide any appropriate assistance that is requested and I will support the prosecutor in his ongoing efforts to seek justice in this case,” Zoeller said.

[More] Here is an updated version of the LCJ story, from June 27th.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Might Indiana trial courts close after June 30th?

Patrick Guinane of the NWI Times reports today:

INDIANAPOLIS | The region’s five Lake Michigan casinos would go dark, state parks would close and most state services would be halted if legislators don’t pass a budget by Tuesday night.

Judges will have to decide whether to work without pay or shut down the courts system if state lawmakers don’t meet the deadline , according to Porter County Superior Court Judge Roger Bradford.

"We’ve not had any discussions about it because the only portion of the local courts that are funded by the state are the judges and magistrates salaries. The rest of the court funding is through the county," said Bradford, a Republican and the county’s longest tenured judge.

"I would leave it up to each (judge) individually. I haven’t decided what I’m going to do under that circumstance. I hope that the speaker of the (Indiana) House decides to become reasonable for the first time in several years and get something done."

Bradford said he expects to receive an advisory from Indiana Chief Justice Randall Shepard as to how to proceed if legislators do not approve a new state budget before the current one expires at midnight Tuesday.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Indiana Courts | Indiana Government

Ind. Law - "'The officers didn't know he wasn't in the legislature,' Mount said. 'They called the prosecutor who advised that it was safer not to arrest him' on a misdemeanor charge.'"

That quote is from a story this afternoon by Leslie Stedman Weidenbener of the Louisville Courier Journal.

The story begins:

Dennie Oxley Jr., a former state legislator and last year's Democratic candidate for lieutenant governor, avoided arrest on alcohol-related charges early Friday by telling police he was serving in the General Assembly, according an Indianapolis Police report. * * *

Oxley told the officers he was a legislator serving in the special session and therefore was immune from arrest, said Sgt. Matthew Mount, a spokesman for the Indianapolis metro police department.

The Indiana Constitution says that "in all cases except treason, felony, and breach of the peace," members of the House and Senate will be immune from arrest during a session of the General Assembly.

But Oxley did not run for his former House District 73 seat last year after he was nominated to be his party's candidate for lieutenant governor. His father, also named Dennie Oxley, did run and now holds the House seat.

[More] Channel 6 News has this story by Jack Rinehart, including a photo from surveillance video. Some quotes:
Dennie Oxley, 38, of Taswell, Ind., was with a 21-year-old female Indiana House intern in the parking lot of the Citgo gas station in the 400 block of East Ohio Street after 1 a.m., 6News' Jack Rinehart reported.

Police were called to the station because the woman was shoeless and lying on the ground, and others were concerned for her safety.

When officers arrived, they said they saw Oxley holding a pair of shoes and trying to evade them by walking quickly through a nearby alley. An officer caught up to Oxley and said that he immediately noticed Oxley had been drinking heavily.

"He was … extremely intoxicated, slurring speech. During the course of the conversation (Oxley) stated he didn't know how he got there or where he was," said Indianapolis police Sgt. Matt Mount.

Oxley also told the officer that he couldn't be arrested because the Legislature is in session, even though he is no longer a legislator.

Oxley gave up his seat to run a losing campaign with gubernatorial candidate Jill Long Thompson against Gov. Mitch Daniels. Oxley's father, also named Dennie Oxley, filled the vacated post in the House.

"They started talking about possibly arresting him for public intoxication, at which time he informed that they couldn't because of immunity since he was a state representative and they were in session," Mount said.

Officers took Oxley at his word. Although the immunity point is moot in this case because Oxley is no longer a legislator, Article IV Section 8 of the Indiana Constitution says "senators and representatives, in all cases except treason, felony and breach of the peace, shall be privileged from arrest during the session of the General Assembly, and in going to and returning from same."

Police said the woman involved was also extremely intoxicated and had apparently passed out on the ground. She was not able to give officers her version of the events.

A gas station worker told police that a cab had dropped Oxley and the woman there.

Much of the incident was captured on gas station surveillance video. When officers arrived, it appeared on the video that Oxley tried to hide behind another car, hoping to avoid detection.

Oxley has not been charged, but because he allegedly gave police incorrect information about being a member of the Legislature, obstruction of justice and public intoxication are two of several charges he could face.

Marion County Prosecutor Carl Brizzi said he has ordered an investigation into the Oxley case and called the allegations serious.

"We want to talk to the police officers and find out what was said," Brizzi said. "We don't have all the facts, so we're going to take some time."

Francesca Jarosz of the Indianapolis Star has this report.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Indiana Law

Law - More on "Concord Online Law School Places Second in National Moot Court Competition"

This ILB entry from June 22nd reported that "The moot court team of Concord Law School of Kaplan University won second place in the Fourth Annual Constance Baker Motley National Moot Court Competition in Constitutional Law on Saturday, June 20." One of the two Concord Law School competitors was Marjorie Daily from Indiana.

But can you take the bar with a degree from a virtual law school? Other than in California? Perhaps yes, according to these stories this week.

Robert J. Ambrogi reports at Legal Blog Watch in an entry that begins:

Remember Ross E. Mitchell? He is the graduate of the wholly online Concord Law School who made history last November by becoming the first graduate of an online, unaccredited law school to win permission to take the bar exam in a state outside California. Well, now he has made history again.

As we reported in November, when Mitchell first applied to take the Massachusetts exam, he was turned down, based on the state's rule that applicants be graduates of law schools accredited by the American Bar Association. He sued the state Board of Bar Examiners, contending that the rule was unconstitutional as applied to him or, alternatively, seeking waiver of the rule in his case. In a decision issued on Nov. 20, Mitchell v. Board of Bar Examiners, the state Supreme Judicial Court held that Mitchell was entitled to a waiver of the rule, clearing the way for him to take the bar exam.

Mitchell took the exam and passed it. That means, as The National Law Journal and the Boston Herald report this week, that the 57-year-old is now the first online law school graduate to be admitted to the Massachusetts bar. He was already admitted in California, which is the only state that officially permits Concord graduates to apply for admission to the bar.

From a story by Sheri Qualters of The National Law Journal:
An online law school graduate who sued the Supreme Judicial Court of Massachusetts for the opportunity to take that state's bar examination is now a newly minted Massachusetts lawyer.

The Boston Herald first reported that Ross E. Mitchell is the first Massachusetts lawyer with an exclusively online legal education. Mitchell was sworn in on June 22 and has 90 days to register with the Massachusetts Board of Bar Overseers, according to the court.

Mitchell, a Newton, Mass.-based independent computer consultant, said he views his legal credentials as "another tool in his consulting arsenal."

"I don't plan open to hang out a shingle per se," Mitchell said. "What I see myself doing is pretty much making myself available to take on interesting projects you need to be a lawyer to do."

Last November, Mitchell won his case against the state's Board of Bar Examiners, which denied his bid to bypass a requirement that U.S.-trained applicants be graduates of an American Bar Association-accredited law school. Mitchell v. Board of Bar Examiners, No. SJC-10157 (Mass.). The court allowed Mitchell to sit for the bar because the ABA is mulling changes to its accreditation standards.

Last September, the ABA launched a comprehensive review of its standards for the approval of law schools. Currently, ABA-approved schools can only allow graduates to take up to 12 credit hours of classes online.

Mitchell, who was a pro se litigant in his Supreme Judicial Court case, graduated from Concord Law School. Mitchell has also passed the California general bar examination and the Multistate Professional Responsibility Examination, and he was admitted to practice before the U.S. Court of Appeals for the 1st Circuit.

In the spring of 2008, Mitchell was also one of four Concord Law graduates sworn in to the U.S. Supreme Court's bar.

The story in the Boston Herald is headed "Web degree no bar for this lawyer."

See also this Nov. 4, 2008 ILB entry.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to General Law Related

Ind. Decisions - "Witness against Cantrell spared jail"

Dan Hinkel reported in the NWI Times Thursday:

HAMMOND | Nancy Fromm, the addiction counseling contractor who helped federal prosecutors put Democratic fixer Robert Cantrell in jail, was sentenced Thursday to two years probation.

Hammond federal Senior Judge Rudy Lozano sentenced Fromm to spend the first six months of the two years on home arrest with work privileges.

Fromm was spared jail time because she helped with the Cantrell prosecution. Assistant U.S. Attorney Orest Szewciw filed a motion asking Lozano to give Fromm a more lenient sentence than the 18 to 24 months in jail suggested in federal sentencing guidelines.

"It led to his conviction," Szewciw said.

"I think it's fair to say she's the only one who could tell the whole story," said Assistant U.S. Attorney Wayne Ault.

Fromm's addiction counseling business, Addiction and Family Care, stood at the center of the investigation into Cantrell. Fromm pleaded guilty in March 2007 to obstructing justice and tax evasion, admitting she illegally hid her business profits from a grand jury and under-reported her personal income in 2003.

Fromm helped prosecutors convince a jury to convict Cantrell of 11 fraud counts. Cantrell used his political links to draw business to Fromm, and he took a cut of the profits.

Cantrell is now serving a 6 and 1/2 year sentence in a Kentucky federal prison.

Here is a list of earlier, related ILB entries.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (1):

In Massood Jallali v. National Board of Osteopathic Medical Examiners, Inc., a 13-page petition for rehearing, Judge Barnes writes:

On February 26, 2008, NBOME filed a two-count complaint against Jallali in Marion County, Indiana. NBOME sought under count I a declaratory judgment that Jallali could not have access to any of the testing materials related to any of the nine examinations he took. Count II sought damages for breach of contract by Jallali, based on his bringing suit in Florida. On May 29, 2008, the trial court denied Jallali’s motion to dismiss NBOME’s complaint on the bases of comity and lack of personal jurisdiction. At the same time, the trial court granted partial summary judgment in favor of NBOME on count I of the complaint, concluding that Jallali could not access any of the testing materials for any of the examinations he took.

This appeal ensued. As we noted in our original opinion, Jallali properly is challenging both the denial of his motion to dismiss and the partial grant of summary judgment in favor of NBOME on count I of the complaint, but he cannot challenge a subsequent judgment the trial court apparently entered in NBOME’s favor on count II of the complaint after this appeal was initiated. * * *

We grant rehearing and vacate our original opinion in this matter. We now reverse the denial of Jallali’s motion to dismiss and grant of partial summary judgment in favor of NBOME with respect to any claims related to the first seven examinations Jallali took, affirm as to the last two examinations, and remand for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Kevin L. Govan v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides 3 today, including David Camm case

In David R. Camm v. State of Indiana , a 31-page, 4-1 opinion, Justice Dickson begins:

The defendant, David R. Camm, appeals his three convictions and sentence of life impri-sonment without parole for murdering his wife and two children. We reverse and remand for a new trial. * * *

The defendant challenges his conviction on four general grounds: (1) the trial court committed reversible error by allowing the State to strike a female juror without a gender neutral reason; (2) evidence was both improperly admitted and excluded, prejudicing the defendant and impinging upon his right to present a defense under the Sixth Amendment to the United States Constitution; (3) the State committed misconduct in charging the defendant with conspiracy in order to frame logically exculpating evidence as inculpating evidence; and (4) the evidence is insufficient to support his conviction. Two particular claims independently require reversal. Specifically, the trial court committed reversible error in allowing speculative evidence and argument that the defendant molested his daughter and in admitting an out-of-court statement that the defendant's wife made to a friend regarding the time she expected to see the defendant at home on the night of the murders. But because sufficient evidence supports the convictions, the defendant may be retried, and so we address the other raised issues that are likely to arise on re-trial.

Chief Justice Shepard's dissent begins [p. 29]: The system of justice seeks to provide a fair trial, but there is no entitlement to a perfect trial. I think the two reversals entered by the appellate courts in this case have unnecessarily sanitized the evidence against David Camm.

In Roy Lee Ward v. State of Indiana, a 6-page peition on rehearing, Justice Dickson writes in a 5-0 opinion:
The defendant, Roy Lee Ward, seeks rehearing of this Court's affirmation of his death sentence on direct appeal, Ward v. State, 903 N.E.2d 946 (Ind. 2009), asserting that one of the issues presented in his appeal—that the trial court should have granted his "for-cause" challenge to one of the jurors—was not addressed. Although not separately enumerated or identified as a separate issue in the appellant's brief, the defendant's assertion of this claim can be discerned within his other arguments. We elect to address this as part of the direct appeal of the defen-dant's death sentence and grant rehearing for this purpose, but conclude that the judgment of the trial court should be affirmed. * * *

Having granted rehearing, we decline to revise our previous conclusion affirming the trial court's death sentence.

Bryan G. Mosley v. State of Indiana, an 11-page, 5-0 opinion, Justice Boehm writes:
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States established a procedure permitting appointed counsel to withdraw from "frivolous" criminal appeals. We decline to adopt the Anders protocol and hold that in any direct criminal appeal as a matter of right, counsel must submit an advocative brief in accordance with Indiana Appellate Rule 46. * * *

In sum, we believe that disapproving Anders is simpler, more effective, fairer, and less taxing on counsel and the courts. Prohibiting Anders withdrawals may also force counsel to be more diligent and locate meritorious issues in a seemingly empty record. Gale v. United States, 429 A.2d 177, 182 (D.C. 1981) (Ferren, J., dissenting). And in those few cases that offer no colorable argument of trial court error whatsoever, counsel may still be able to solicit a sentence revision or even a change in the law. Cigic, 639 A.2d at 253; Ind. Appellate Rule 7(B); see also Prof. Cond. R. 3.1 cmt. ("[T]he law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.").

We conclude that in any criminal appeal as a matter of right, counsel may neither withdraw on the basis that the appeal is frivolous nor submit an Anders brief to the appellate court.

Conclusion. The judgment of the trial court is affirmed. The opinion of the Court of Appeals is summarily affirmed as to the sufficiency of the evidence supporting Mosley’s conviction.

ILB: That takes care of two of the most-anticipated decisions on this list posted June 24th.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - More on yesterday's SCOTUS rulings

"Strip Searches and the Law: A smart compromise balances the rights of students with the needs of school administrators" is the title to an editorial today in the Washington Post.

Also from the WAPO, Robert Barnes has a story headed "Defendants Have Right To Confront Analysts of Forensics, Court Rules."

Adam Liptak writes in the NY Times under the heading "Justices Rule Lab Analysts Must Testify on Results ." A quote:

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote.

“The sky will not fall after today’s decision,” he added.

But that is not how prosecutors saw it. “It’s a train wreck,” Scott Burns, the executive director of the National District Attorneys Association, said of the decision.

“To now require that criminalists in offices and labs that are already burdened and in states where budgets are already being cut back,” Mr. Burns said, “to travel to courtrooms and wait to say that cocaine is cocaine — we’re still kind of reeling from this decision.”

Mr. Burns said complying with the ruling would be particularly tough in large rural states with a single crime laboratory and in old cases where the analyst has died or moved away.

The decision came in the wake of a wave of scandals at crime laboratories that included hundreds of tainted cases in Michigan, Texas and West Virginia. William C. Thompson, a professor of criminology at the University of California, Irvine, said those scandals proved that live testimony from analysts was needed to explore potential shortcomings in laboratory reports.

“The person can be interrogated about the process, about the meaning of the document,” Professor Thompson said. “The lab report itself cannot be interrogated to establish the strengths and limitations of the analysis.”

In February, the National Academy of Sciences issued a sweeping critique of the nation’s crime labs. It concluded, for instance, that forensic scientists for law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”

Cross-examination of witnesses, Justice Scalia wrote, “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He added that the Constitution would require allowing defendants to confront witnesses even if “all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”

[More] See this WSJ Law Blog entry, "Coming Soon: A Little More Courtroom Time for CSI Workers," by Ashby Jones

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Courts in general

Ind. Gov't. - Still more on the doomsday scenario -- the failure to pass a budget by July 1st

Updating yesterday's ILB entry, Mary Beth Schneider and Bill Ruthhart of the Indianapolis Star have a story today headed: "If lawmakers don't pass a new budget, what then? Many services and jobs at risk if Tuesday's deadline isn't met."

Niki Kelly has a story headed "Services in danger if budget held up: Officials ponder government closing."

If June 30th concludes without a budget, presumably the focus of research will turn from projecting consequences to finding ways to continue essential operations.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Indiana Government

Ind. Courts - Clerk of Courts announces new hours

The Main Office of the Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court will have new business hours beginning July 1, 2009. The new business hours will be 8:30 a.m. - 4:30 p.m. Monday through Friday.

See release here.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Indiana Courts

Environment - "A Rough Term in Supreme Court for Environmentalists Draws to a Close"

Jennifer Koons reports today in the NY Times in a story that begins:

Environmental interests were trounced in the 2009 Supreme Court term that ends Monday.

In five high-profile cases, the justices overturned decisions that favored environmentalists. They ruled in favor of the Navy in a case pitting national security concerns against the welfare of marine mammals; limited the scope of liability for a Superfund cleanup; and reversed a decision that held no cost-benefit test could be used to determine the best technology for withdrawing water from rivers to cool power-plant turbines.

In addition, the court held that five conservation groups lacked standing to challenge U.S. Forest Service regulations and found that the Army Corps of Engineers, not U.S. EPA, has permitting authority over mining-waste discharges under the Clean Water Act.

"This term's environmental decisions, taken as a whole, convey a message of extreme hostility to the goals and methods of environmental law," said John Echeverria, director of the Georgetown University Law Center's Environmental Law and Policy Institute. "Based both on the specific cases the court selected for review, and the court's actual decisions in the cases, the overall effect of the rulings has been to weaken environmental protections across the board."

The story explores the reasons why. One reason given in this very long story is "elite attorneys" representing industry:
Environmental issues have become increasingly popular among the elite group of private-sector attorneys who regularly argue high-profile cases before the Supreme Court. This could explain why the justices decided to accept these particular cases, according to Georgetown University law professor Richard Lazarus, who has represented more than 40 clients in environmental cases before the court.

"Some of the best Supreme Court lawyers in the country represented industry groups and should be given credit for successfully getting review," said Lazarus, who argued on behalf of the group Riverkeeper Inc. in one of the Clean Water Act suits before the court this term. "This was the term in which expert Supreme Court private-sector attorneys came into environmental law and made a big difference."

Lazarus pointed to former Solicitor General Ted Olson, who successfully represented Coeur Alaska and the state in the case decided earlier this week, and Maureen Mahoney of Latham & Watkins LLP, head of the D.C. firm's appellate and constitutional practice, who represented the winning sides in both the Superfund and Clean Water Act cases.

"These are a handful of extremely well-respected and well-known Supreme Court lawyers who receive a great deal of deference from the justices, who only hear about 70 or 75 cases per year," Lazarus said. "Supreme Court law firms often can't charge top dollar for these cases because they involve a 'no pay' client -- such as a criminal defendant suing on 4th Amendment grounds. Environmental cases with major industry groups and all of those who will file amicus briefs can be taken straight to the bank."

Lazarus returned to the subject of possible Supreme Court deference when speculating about why the justices declined to hear a high-profile case involving confusion created by the court's 2006 decision in Rapanos v. U.S., a global climate change case.

Also today, How Appealing has made available an article headed "Environmental Issues Lose in Supreme Court; Mining Decision is Fifth to Disappoint Activists This Term," written by Lawrence Hurley of The Daily Journal of California.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Environment

Ind. Gov't. - More on "Attorneys dodging Porter County RDA battle"

Updating this ILB entry from June 21st, the Chesterton Tribune printed this story June 24th:

Porter County Council members who voted to withdraw from the Northwest Indiana Regional Development Authority haven’t had an easy time finding a law firm to represent the county in the anticipated legal dispute, and political pressure is being blamed as the reason.

County Council member Dan Whitten, D-at large, said that as of the start of this week, the council secured the Indianapolis-based Hall Render firm for representation in the RDA dispute, but only after two other law firms backed out.

Last month, the council voted 4-3 to award the work to the Bose McKinney & Evans firm. “We were ready to go,” Whitten said. But the firm pulled out after being contacted by Hammond Mayor Tom McDermott, an RDA supporter. Whitten said the firm does legal work for the city of Hammond and the mayor felt it would be a conflict for the firm to represent Porter County as well in the RDA dispute.

Another law firm potentially interested in the RDA work also backed out. Whitten said he was told that the firm was warned, possibly by state legislators, that it would never get state legal work again if it took on Porter County’s case.

As of Monday, the council had a letter of engagement with Hall Render, which assisted the county in the sale of Porter hospital. Hall Render has indicated that there would be no reason why it shouldn’t take the case, Whitten said.

Whitten said he finds it troublesome if law firms don’t want to represent Porter County in the RDA dispute because of the political fallout.

If the RDA is such a good entity as its supporters say it is, then “why are they playing all these shenanigans?” he said.

Whitten, an attorney specializing in bankruptcy law, said he still believes Porter County is on sound legal grounds in its decision to withdraw from the RDA.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Indiana Government

Ind. Courts - Two odd stories involving Indiana courts

Shawntaye Hopkins has a report in the Lexington Herald-Leader headed "Central Ky. family court judge faces misconduct charges." Some quotes:

GEORGETOWN — The state's Judicial Conduct Commission has charged a family court judge with misconduct in relation to three incidents in Scott and Woodford counties.

Family Court Judge Tamra Gormley, who was appointed in 2007 to a district that covers Scott, Woodford and Bourbon counties, is scheduled to appear in Fayette Circuit Court for a hearing at 9 a.m. Sept. 28.

The three sets of charges could result in separate or collective penalties including public or private reprimand, suspension without pay or removal or retirement from judicial office, according to documents obtained from the Judicial Conduct Commission. The commission, which investigates and reviews complaints against judges, is the only entity authorized to discipline a sitting Kentucky judge, according to state law. * * *

The commission's third charge stems from a child-custody hearing on Sept. 24, 2008 in Scott Family Court, during which a mother was in an Indiana courtroom with her attorney, and the child's paternal grandmother and paternal step-grandfather were in Gormley's court with their attorneys and with the child's father.

The commission says that not all communication was shared with the Indiana court, including instances when the people in Indiana were unaware that documents or notes were presented to the judge.

The Indiana court had audio from Scott Family Court, but no video.

The commission says that the Indiana court had continuing exclusive jurisdiction and that Gormley disregarded jurisdictional requirements by entering custody orders.

Gormley said in her response that the third charge was inaccurate. She also said that "whether the Indiana Court had or has continuing exclusive jurisdiction is clearly a matter for the Court of Appeals, not the Commission."

The response also says that Gormley had concluded before the hearing that there was no continuing Indiana jurisdiction and Kentucky could appropriately enter custody orders.

"Judge Gormley's decision was not erroneous, but if it were, it would clearly be a good-faith error of law," the response says.

Bridget Freeland has a story today in the Courthouse News Service about Hal Turner, the NJ blogger charged with murder threats to federal judges, about which the ILB had this entry yesterday. It appears from today's story that there may have been some confusion in Turner's mind between the Indiana Court of Appeals and the 7th Circuit Court of Appeals - see this paragraph near the end of today's story (which I reluctantly quote):
In January this year, after an Indiana appeals court ruled that "sexual misconduct with a minor requires that the victim actually be a minor," Turner wrote: "folks in Indiana who have been planning ... for our national cleansing of government filth - scheduled for the not-so-distant future - had better go out and buy more rope. It appears we have to add 2 more judges to a list of filth that needs to 'swing,'" according to the affidavit.

Posted by Marcia Oddi on Friday, June 26, 2009
Posted to Indiana Courts

Thursday, June 25, 2009

Courts - More on today's SCOTUS decisions

Updating this ILB entry from earlier today, Joan Biskupic of USA Today has this story on the Redding decision, headed "Court says strip search of child illegal ."

Tony Mauro's coverage for The National Law Journal is here. The NYT is carrying this AP story.

Re Melendez-Diaz, USA Today has this AP story, headlined "Court rules for defendants on crime lab reports."

Prof. Eugene Volokh has an interesting sidenote, congratulating a recent law graduate whose student article is cited three times in Justice Kennedy's dissent.

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Courts in general

Ind. Decisions - More on: "Supreme Court rules against NIPSCO: U.S. Steel disputed the way the utility calculated electric rates"

Updating this ILB entry from earlier today, Patrick Guinane of the NWI Times had this report Wednesday on the case:

The Indiana Supreme Court dealt NIPSCO a loss Tuesday in a billing dispute with U.S. Steel.

In 1999, the parties agreed to a long-term contract establishing prices the utility would charge U.S. Steel to supply electricity to the steelmaker's Gary Works plant. One price schedule applied to a fixed number of kilowatt hours per month, and another established the cost of overages.

In 2005, the fixed prices in the contract expired, and U.S. Steel began paying market-based prices. But the steelmaker argued its agreement with NIPSCO applied the higher market-based prices only to its fixed monthly consumption, not overages.

The Indiana Utility Regulatory Commission agreed with U.S. Steel in 2006. But the Indiana Court of Appeals reversed that decision in 2008 and ordered the regulatory commission to calculate how much U.S. Steel owed NIPSCO.

The state Supreme Court on Tuesday reversed the appellate ruling. But it's not clear how much the decision could cost NIPSCO.

"We are in the process of reviewing today's decision, and we need time to evaluate and review the impacts of the court's ruling to determine what the appropriate next steps are, if any," NIPSCO spokesman Nick Meyer said Tuesday.

In a note to the ILB this morning Guinane adds that "on Wednesday I followed up with the IURC and was told the commission never calculated how much U.S. Steel would have owed NIPSCO because the COA ruling was appealed." So it appears we will not know the financial impact of the Indiana Supreme Court ruling unless the parties choose to disclose it.

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit en banc overturns panel in Hammer

David Paul Hammer v. Ashcroft (SD Ind., Judge Tinder)

Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, ROVNER, WOOD, EVANS, and SYKES, Circuit Judges. Circuit Judges F laum, Williams, and Tinder did not participate in the consideration or decision of this appeal.

See Judge Rovner's opinion for the Jan. 15th, 2008 3-judge panel here. See also this entry from Jan. 19, 2008.

Judge Rovner, with whom Judge Bauer joins, writes in a dissent that begins [at p. 15]:

The original panel’s opinion was firmly rooted in the Supreme Court’s long-standing rule that a prison regulation infringing on an inmate’s constitutional rights is valid only if “it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). When a prisoner challenges a prison policy on constitutional grounds, the government must put forward a “legitimate” government interest to justify the restriction. Id. Suppressing speech because government officials find the content offensive is not a legitimate penological interest. Id. at 90. The original panel concluded that David Paul Hammer presented evidence that created a question of material fact that the district court overlooked: is the jailhouse-celebrity concern articulated by the warden “legitimate,” or is it simply a convenient explanation to justify a policy designed to control the speech content of a particular subset of prisoners? Given the fact dispute, the original panel reached the limited—indeed, even pedestrian— conclusion that a trier of fact must resolve the conflict.

Today’s en banc opinion is almost entirely unmoored from the original panel’s narrow treatment of the issues presented in this appeal. With scarcely a reference to Turner, today’s opinion holds that a ban on face-toface interviews in the prison system is justified if a judge can “imagine” a legitimate basis for its existence, glosses over facts regarding the application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner’s access to the media based on its distaste for the anticipated content of the prisoner’s speech. The en banc opinion thus authorizes the government to deny the public a chance to hear directly from prisoners who can offer a glimpse of situations that may embarrass the government, such as torture and prisoner abuse, by invoking pretextual justifications for policies that are unrelated to security. For the reasons set forth in the original panel’s opinion, I dissent. I write separately only to memorialize my additional disagreement with the unexpected breadth of the en banc opinion.

Judge Wood's dissent begins [at p. 23]:
Although I agree with much of Judge Rovner’s dissent, I write separately in order to highlight my own concerns with the majority’s opinion. Briefly put, they are as follows: first, the record does not support certain key assumptions made in the majority’s opinion; second, and related to the first point, it was error to grant summary judgment in favor of the defendants without permitting the plaintiff, David Hammer, to develop the record properly; and third, the majority has erred by adopting a rule permitting wholesale censorship in prisons—one that goes much farther than anything the Supreme Court sanctioned in Pell v. Procunier, 417 U.S. 817 (1974), or Saxbe v. Washington Post Co., 417 U.S. 843 (1974).

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

Courts - SCOTUS decides Melendez-Diaz, others; Indiana implications of M-D

Today the SCOTUS has decided the case of Melendez-Diaz v. Massachusetts (07-591), on whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence. Justice Scalia's opinion concludes:

This case involves little more than the application of our holding in Crawford v. Washington, 541 U. S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error. We therefore reverse the judgment of the Appeals Court of Massachusetts and remand the case for further proceedings not inconsistent with this opinion.
The Court has released a slew of opinions today - here is another of high interest:

Safford United School District #1 v. Redding (08-479), on whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy. Justice Souter's opinion begins:

The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected toa search of her bra and underpants by school officials acting on reasonable suspicion that she had brought for-bidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs pre-sented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with whichthe right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.

The above links thanks to SCOTUSBlog's "live blog" feature.

Indiana implications of Melendez-Diaz:
As noted in this June 24th ILB entry, at least two Indiana cases argued before our Supreme Court in 2008 have probably been awaiting this ruling.

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In Guardianship of L.R.; B.R. v. Irma Hampton (Nave) Stewart, et al, an 11-page opinion, Chief Judge Baker writes:

This appeal presents a tangled knot of multiple trial court orders and multiple notices of appeal. But when the knot is untangled and the vituperative language used by the appellant’s attorney is removed from the snarl of issues, the correct outcome is apparent. The motions panel properly dismissed the first two notices of appeal—one for being untimely and the other for being an appeal from a non-appealable order—and the trial court properly granted the requested attorney and administrative fees at issue in the third appeal.

Appellant-respondent B.R. (Daughter) appeals three orders entered by the trial court relating to attorney fee petitions filed by appellees-petitioners Irma Hampton Stewart, John W. Longnaker, III, and First Merchants Trust, as Guardian of the Estate of L.R. (collectively, the appellees). In the third appeal, Daughter argues that the trial court erred by awarding the appellees’ requested administrative and appellate attorney fees. Finding no error, we affirm.

In Eric D. Smith v. Jeff Wriglery and David L. Ittenbach , an 11-page opinion, the issue is "Whether the trial court erred in dismissing Smith's complaint as frivolous under Indiana‟s Frivolous Claim Law, Ind. Code § 34-58-1-2." Judge Riley concludes:
Put bluntly, we cannot endorse a system in which Eric Smith's complaints are dismissed merely because they were filed by Eric Smith. This would be the equivalent of shutting the courthouse doors altogether. Indiana's Three Strikes Law did the same thing to Smith, and last year, our supreme court found that law to be unconstitutional. See Smith v. Ind. Dep’t of Corr., 883 N.E.2d 802 (Ind. 2008). The court held that, under the Indiana Constitution, “an individualized assessment of each claim is required, and a claim cannot be dismissed on the basis of who presents it rather than whether it has merit.” Id. at 806; see also Jones v. Bock, 549 U.S. 199, 203 (2007) (“Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law.”).

Finally, we pause to clarify that it is not our holding that all prisoner complaints must be allowed to proceed past the pleading phase. Complaints that are facially frivolous, e.g., those that reference little green men or a constitutional right to Rogaine, can still be summarily dismissed at the screening stage. In the meantime, we urge our legislature to consider some of the steps taken by other states in an attempt to lessen the burden of meritless offender litigation, several of which our supreme court cited in its Smith opinion last year. 883 N.E.2d at 808-09. Likewise, as noted by our supreme court, federal courts have upheld the PLRA, which does not prevent inmates from pursuing claims but merely requires that they pay the filing fee. Id. at 809.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred by dismissing Smith's complaint as frivolous under Indiana Code section 34-58-1-2.

Steven William Bockler v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to prove beyond a reasonable doubt that Bockler operated a motor boat while intoxicated and resisted law enforcement. We also conclude that the restitution order appears to be based, in part, upon expenses which are not a proper consideration for criminal restitution. Therefore, we remand with instructions so that the trial court may adjust the restitution order."

In Eric Gonzalez v. State of Indiana , a 9-page opinion, CJ Baker writes:

Appellant-defendant Eric Gonzalez appeals his conviction for Auto Theft,1 a class D felony, arguing that the evidence is insufficient to support the conviction. Finding no error, we affirm. * * *

To convict Gonzalez of class D felony auto theft, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally exerted unauthorized control over Hugo’s vehicle, with the intent to deprive Hugo of the vehicle’s value or use or of a component part of the vehicle. I.C. §35-43-4-2.5(b).

Gonzalez directs our attention to well-established authority holding that, “for purposes of supporting a theft conviction in cases of considerable lapses of time, [the State must prove] that the defendant had exclusive possession of the stolen property during the period of time since the theft occurred.” * * *

Here, in contrast, Gonzalez was charged based on the portion of the statute making it a crime to knowingly or intentionally exert unauthorized control over a vehicle with the intent to deprive the owner of a component part of the vehicle. I.C. §35-43-4-2.5(b). When a defendant is charged under this part of the statute, the State must establish a nexus in time or possession between the defendant and the theft of the vehicle’s component parts. * * *

We find this evidence sufficient to establish that Gonzalez knowingly or intentionally exerted unauthorized control over the Chevrolet with the intent to deprive the owner of component parts of the vehicle.

Milton Kenney v. State of Indiana - "While the jury could have made different inferences from the evidence, we cannot say that the inferences made by the jury here were unreasonable. Thus, we conclude that evidence of probative value exists from which the jury could have found Kenney guilty beyond a reasonable doubt of felony murder."

NFP civil opinions today (5):

In the Matter of J.L.; A.C. v. Hamilton Co. Dept. of Child Svcs. (NFP)

Charles J. Rathburn, Jr. v. Christine A. Rathburn (NFP)

Adecco v. Clarian Health Partners (NFP)

Morgan County Commissioners v. Clarian Health Partners (NFP)

Wayne Township Fire Department v. Beltway Surgery Center (NFP)

NFP criminal opinions today (2):

Thomas D. Hunter v. State of Indiana (NFP)

Tierre J. Carpenter v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Ind. App.Ct. Decisions

About this blog - Sign-up now as an ILB supporter

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Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to About the Indiana Law Blog

Law - Miami paper features Thomas E. Lauria, who represented Indiana's treasurer in the Chrysler bankruptcy

The story, by Patrick Danner of the Miama Herald, is headed "Miami lawyer Thomas E. Lauria is in the middle of the Chrysler bankruptcy, just the latest major case in which he's played a role." The story begins:

Miami bankruptcy lawyer Thomas E. Lauria may not be readily recognizable outside of narrow legal circles, but his name hit business headlines earlier this month when he succeeded in getting the Supreme Court to stall Chrysler's alliance with Fiat.

That delay lasted only a day, but the dogged Lauria hasn't given up the fight. He's hoping the Supreme Court will hear an appeal on the grounds the bankruptcy court erred in shoving his clients behind another group of Chrysler creditors -- upending the pecking order of who gets paid first under bankruptcy law.

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to General Law Related

Ind. Decisions - "Supreme Court rules against NIPSCO: U.S. Steel disputed the way the utility calculated electric rates"

The Supreme Court's decision Tuesday in the case of Northern Indiana Public Service Co. v. United States Steel Corp. is the subject of a story today by Andy Grimm of the Gary Post Tribune:

A state Supreme Court ruling will save U.S. Steel a bundle on its electric bill.

The high court Tuesday ruled in the steelmaker's favor in a dispute [where] U.S. Steel disputed how NIPSCO calculated the rates for electricity usage under terms of the contract, touching off a 10-year-long courtroom debate over terminology such as kilowatts, kilowatt hours, "energy rates" and "usage rates" and elaborate mathematical formulae

U.S. Steel attorney Jack Wickes declined to comment on how much money hinged on the different definitions -- "it was enough money to take the case from the (Indiana Utility Regulatory Commission) to the Supreme Court"-- but said his client was pleased with the ruling.

"We're very happy with it," he said Wednesday from his office in Indianapolis.

The court's ruling upheld a 1999 ruling by the state Utility Regulatory Commission and lower court decisions.

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on the doomsday scenario -- the failure to pass a budget by July 1st

President Pro Tem Long has released two papers that conclude that without a state budget agreement, there is no legal authority to continue most functions of state government, and hence the need for passage of the special session's SB 1.

Here is the 10-page memo, dated June 19, prepared by the Legislative Services Agency. And here is the 2-page memo, dated June 24, prepared by the Senate Counsel.

Note: It would have been helpful if Senator Long's staff had not elected to scan a copy of the LSA memo where someone had highlighted what they judged to be the most important statements. That made these sections practically unreadable; one might think they have been blacked out. Better still, of course, would have been to supply an original electronic document, rather than a scanned copy.

The ILB has had a number of entries on the doomsday scenario: May 18th, May 24th; May 25th; and June 19th.

In addition, the ILB entry had this entry on June 23rd, titled "What's in the Senate budget?"

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Indiana Government | Indiana Law

Ind. Courts - "Racist blogger targets federal judges in Chicago"

The Chicago Tribune's law blog, Chicago Law, had this entry last evening reporting:

Hal Turner, an occasional talk show host on internet radio and blogger, was arrested today by the FBI in his New Jersey home on charges he threatened to murder three federal appeals court judges in Chicago following their recent ruling upholding handgun bans.

According to the U.S. attorney's office, postings on Turner's web site included photos of the judges and addresses for them, with statements such as: "Let me be the first to say this plainly; These judges deserve to be killed."

The three judges have long served on the 7th Circuit U.S. Court of Appeals: Frank Easterbrook, the current chief judge; and Richard Posner and William Bauer. * * *

Turner, known for his white supremacist views, has been on the radar of federal authorities before. In the wake of the murder of the husband and mother of U.S. District Judge Joan Lefkow in 2005, Turner's web site carried the courthouse addresses of appeals court judges who had ruled against white supremacist Matthew Hale in a civil case.

Here is the story yesterday from the Chicago Sun TimesDavid Kravets of Wired has the most extensive story, including a link to the 12-page FBI criminal complaint.

[More] "Blogger Charged With Threatening to Kill Three Federal Judges: Internet radio host's Web posting said Posner and two other 7th Circuit judges 'deserve to be killed' for their ruling on handgun laws," is the headline to this article today by Lynne Marek of The National Law Journal.

Here are links to June 2, June 3, and June 17 ILB entries on the 7th Circuit gun ruling referenced: NRA v. City of Chicago.

Posted by Marcia Oddi on Thursday, June 25, 2009
Posted to Indiana Courts

Wednesday, June 24, 2009

Environment - More on: Purdue's awaited CAFO study may be disappointment to all

Updating this ILB entry from June 19th, Angela Mapes Turner of the Fort Wayne Journal Gazette reports today:

A long-awaited Purdue University study of Indiana’s biggest livestock farms found they have a mixed effect on local government budgets and taxes, but critics argue the study left crucial issues unaddressed.

The university last week released preliminary results of a study on 155 confined animal feeding operations that involved megafarms in eight Indiana counties. * * *

Purdue hasn’t made its full study available to the public, although the university hopes to have it online by the end of the summer, said animal scientist Tamilee Nennich, who worked on the project with three agricultural economists: Janet Ayres, Larry DeBoer and Roman Keeney.

The researchers presented partial results in a two-hour panel last week broadcast in county extension offices statewide.

The study examined tax information from the counties involved, and team members conducted 50 hour-long interviews with swine and dairy operators.

Researchers found that some of the farms generate more tax revenue for county government than additional costs – such as wear and tear on roads under massive loads of manure, feed and animals – but some do not. Because of the taxes the farm operators pay, some farms provide relief to local taxpayers. * * *

Supporters say confined animal feeding operations conserve land use and are a labor-efficient way to raise and protect animals from predators and some diseases.

But critics argue that factory farms damage local roads and can contaminate waterways when animal waste spills or is improperly applied to fields as fertilizer.

Several attempts at the state level to create buffers between residential properties and such farms have failed. But some counties – including Wabash and Wells, the Purdue study said – have updated zoning ordinances to address the issue.

Barbara Sha Cox, of the grass-roots organization Indiana CAFO Watch, said she was interested in the study for what it didn’t address.

“They did not interview the neighbors, the ones that have suffered the property devaluation and all the quality-of-life issues,” she said. “To have a comprehensive report, that should have been included.”

One of her main criticisms is the part of the study that deals with the environmental effect of feeding operations.

Using IDEM data, the researchers found that fewer than 1 percent of the farms studied had been cited for water-quality violations.

Cox said she wishes the university had done its own water- or soil-quality testing. Relying on the state to measure environmental effects, she says, does not take into account that many feeding-operations opponents and environmentalists believe the state doesn’t do enough to regulate the farms.

Nennich said the report was meant to focus on the economic effect and that it would have been too expensive to do such testing.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Environment

Ind. Decisions - "Medical malpractice awards are an uncommon result in Indiana's long process"

Amanda Harmon reports today in the Indianapolis Star:

Marion County juries awarded high-dollar damages in two medical malpractice cases this month, an unusual occurrence in a state where such judgments are rare.

David Lee, 61, Indianapolis, was awarded $1.21 million Friday after suffering chronic foot pain from an unnecessary surgery in 1996. On June 12, jurors awarded Roxxanna Smith, 27, Mooresville, $5 million after miscommunication about X-rays led her to lose a portion of her stomach.

The state's medical malpractice cap means both judgments will shrink, Lee's to $750,000 and Smith's to $1.25 million.

Indiana saw 32 malpractice cases go to trial in 2007, 12 of which ended in favor of the plaintiffs, said Indianapolis trial lawyer Rex Baker of Baker & Gilchrist. He was not involved in either case but has represented plaintiffs in medical malpractice suits.

The ratio was about the same in 2006, when nine of 26 Indiana malpractice cases ended in favor of the plaintiffs.

Before they can sue, Hoosiers claiming malpractice must bring their cases before a three-member medical review board, which can take a year or longer, Baker said. Even if the board decides the case has merit, a trial can take years, and health-care providers are unlikely to settle because the state's cap on damages protects them from the risk of massive judgments, he said.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Courts | Indiana Decisions | Indiana Law

Ind. Law - "Jeffersonville City Council lawyer resigns"

Updating this ILB entry from June 21st, Ben Hershberg of the Louisville Courier Journal reports today:

Larry Wilder, the embattled lawyer for the Jeffersonville City Council, has resigned following the release of photographs of him sleeping in a garbage can after a night of drinking.

Connie Sellers, president of the Jeffersonville City Council, said Wilder told her Monday that he was resigning, telling her "I can't put my friends through this."

Wilder was referring to the national distribution of the photographs and intense criticism of his behavior as a high-profile city official.

"It was the right thing to do," Sellers said, explaining that the incident had become a distraction for the City Council.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Washington Township Fire Department v. Beltway Surgery Center , an 18-page opinion, Judge Barnes writes:

Washington Township Fire Department (“Washington Township”) appeals a decision of the Worker's Compensation Board (“the Board”) awarding to Beltway Surgery Center (“Beltway”) the full amount of Beltway‟s medical bills for treatment to an employee of Washington Township. We affirm. * * *

The Board did not err in requiring Washington Township to prove how Mednet reached its determination of Washington Township‟s pecuniary liability and to prove that Beltway‟s billed charges exceeded the maximum amount permissible under the Act. We also conclude the Board did not err in awarding Beltway the full amount of its medical bills for May‟s treatment, particularly in the absence of any evidence as to how Mednet purported to calculate Washington Township‟s pecuniary liability. We affirm.

In In the Matter of the Paternity of: Ba.S. and Br.S; Kimberly C. v. Barry S. , a 10-page opinion, Judge Mathias writes:
Kimberly A. (“Mother”) filed a notice of relocation with the Porter Circuit Court informing the court of her intention to move her children to Norfolk, Virginia. The children‟s father, Barry S. (“Father”), objected to the proposed relocation and also filed a motion to modify custody. The trial court granted Father‟s motion and awarded him custody of the children. Mother appeals and argues that in modifying custody, the trial court violated her due process rights and its decision runs afoul of public policy concerns. We affirm. * * *

After reviewing the evidence, the trial court concluded that a change of custody in favor of Father was in the children‟s best interests. On appeal, Mother has not presented any argument which would lead us to conclude otherwise. For all of these reasons, we affirm the trial court's decision to award custody of the children to Father. Affirmed.

In Alberto Tirado Jr. v. State of Indiana , a 7-page opinion, Judge Mathias writes:
Alberto Tirado, Jr., (“Tirado”) pleaded guilty in Lake Superior Court to Class D felony criminal recklessness, Class A misdemeanor carrying a handgun without a license, and two counts of Class A misdemeanor resisting law enforcement and was sentenced to an aggregate term of three and a half years. On appeal, Tirado presents two arguments which we restate as: I. Whether the trial court considered improper aggravating factors in sentencing; and II. Whether Tirado’s sentence is inappropriate in light of his character and the nature of the offenses. * * *

The trial court did not consider improper aggravating circumstances, and Tirado’s three and a half year sentence is not inappropriate in light of the nature of the offender and the character of the offense.

NFP civil opinions today (4):

Jeffrey R. Stephens v. Jessica (Stephens) Perkinson (NFP) - "Accordingly, we conclude that Stephens failed to establish that modification of the trial court’s order denying parenting time was in J.S.’s best interests. The trial court’s denial of Stephen’s Petition for Visitation Rights is therefore affirmed."

City of Michigan City v. Memorial Hospital (NFP) - "The Board did not err in requiring Michigan City to prove how Mednet reached its determination of Michigan City’s pecuniary liability and to prove that Memorial Hospital’s billed charges exceeded the maximum amount permissible under the Act. We also conclude the Board did not err in awarding Memorial Hospital the full amount of its medical bills for Bowen’s treatment, particularly in the absence of any evidence as to how Mednet purported to calculate Michigan City’s pecuniary liability. We affirm."

The Term. of the Parent-Child Rel. of J.S. and D.S.; M.S., L.S. v. Indiana Dept. of Child Svcs., Allen Co. (NFP) - "In light of these facts, and the court’s numerous other findings and conclusions, we find no error in the termination of Mother’s parental rights to J.S. and D.S."

Onward Fire Department v. Clarian Health Partners (NFP) - "The Board did not err in requiring Onward to prove how FairPay reached its determination of Onward’s pecuniary liability and to prove that Clarian’s billed charges exceeded the maximum amount permissible under the Act. We also conclude the Board did not err in awarding Clarian the full amount of its medical bills for Dillon’s treatment, particularly in the absence of any evidence as to how FairPay purported to calculate Onward’s pecuniary liability. We affirm."

NFP criminal opinions today (12):

Vernon Teague v. State of Indiana (NFP)

Cory Mills v. State of Indiana (NFP)

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

Rafael Hernandez v. State of Indiana (NFP)

Brandon Lee v. State of Indiana (NFP)

Kenneth Beavers v. State of Indiana (NFP)

Brian Browning v. State of Indiana (NFP)

Farrell Boyce v. State of Indiana (NFP)

DeShawn Green v. State of Indiana (NFP)

Alvin L. Redfield v. State of Indiana (NFP)

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

Dirrick Burks v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indiana case today

In U.S. v. Griggs, et al (ND Ind., Judge Sharp), a six-page opinion, Judge Posner writes:

The defendants were charged with a variety of federal crimes (wire fraud and conspiracy to commit wire fraud, money laundering and conspiracy to commit money laundering, and tax evasion and failure to file tax returns) committed in furtherance of a typical Ponzi scheme, in which investors in the defendants’ enterprises were made false promises of exorbitant profits and lost more than $5 million. The defendants, all but Moore, were tried together to a jury, and convicted; Moore was tried separately, also to a jury, and was also convicted. The defendants received sentences ranging from 30 months for Shroyer to 235 months for Rodger Griggs, the ringleader.

All five defendants challenge the sufficiency of the evidence to convict them. In the case of Rodger Griggs, the challenge is frivolous and so requires no discussion. In the case of the other defendants the challenge borders on the frivolous and warrants only a brief discussion. As is typical in fraud cases, most of the participants claimed not to have known that they were participating in a fraudulent scheme. * * * But avoidance behavior is itself evidence of guilty knowledge—the classic “ostrich” behavior that elicits an ostrich instruction, which the judge gave. United States v. Strickland, 935 F.2d 822, 826-28 (7th Cir. 1991) [remaining cites omitted]

The only other issue that requires discussion concerns omissions in the instructions given to the jury in Moore’s trial. * * * There was never doubt that the conspiracy had involved the use of interstate communications by wire, which may be why the lawyers and the district judge didn’t notice the omission from the instructions.

Nor for that matter was there doubt that the conspirators had committed numerous overt acts; so even if the judge should have instructed the jury that it had to agree unanimously about which overt act or acts had been committed, the error would have been harmless. AFFIRMED.

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

Ind. Decisions - Many more Indiana Supreme Court opinions expected before July 1

The U.S. Supreme Court is ending its term and seven more opinions are expected during the next few days. Generally, Supreme Court opinions do not hold over from term to term.

The Indiana Supreme Court does not have an official term. However, Court statistics and reports are issued on a fiscal year basis - the state fiscal year ends June 30th.

Joel Schumm, IU-Indianapolis law professor, send this report to the ILB last evening:

I just did a quick search of the oral argument calendar and expect as many as ten, possibly more, criminal cases before the end of the fiscal year. Today's hand-downs were argued April 30 (Lucio) and March 5 (Helton). (No oral argument was held in Dennis, which was transmitted February 2.) I would not expect opinions in cases argued in May or June. (The Terre Haute mayor case is exceptional.)

The big criminal case headline will be Camm, which was argued May 22, 2008. (The ILB has plenty of entries on the David Camm trials and appeals. Here are entries about the May 22, 2008 oral argument, from the 22nd and 23rd of May, 2008.)

The only other 2008 argued criminal cases still pending are:

From the first four months of 2009:

I only looked at criminal cases. I suspect there are quite a few civils. Moreover, I have no idea how many cases might be pending where there was no oral argument or where transfer will be granted the same day the opinion is handed down. (I had no idea Dennis was pending, and there's really no way to know about direct appeals like it.)

I suspect one or more of the cases will have a disagreement/separate opinion(s) that cannot be ironed out in the next week. If the court were on a term like SCOTUS, they'd get them all out. Since they are not, some opinions might wait, sort of like a state budget this year . . . .

Additions or corrections welcome.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Courts set for foreclosure change"

Rebecca S. Green of the Fort Wayne Journal Gazette writes today about SEA 492. The story begins:

Though it might be August before Allen County court officials see any changes from a new mortgage law taking effect next week, they will be ready July 1.

In the spring, the state legislature took steps to try to help stem the tide of foreclosures, which reached a peak in Allen County in 2007 with about 2,700; there were about 2,500 last year.

The legislation, signed into law by Gov. Mitch Daniels in early May, requires mortgage lenders or creditors seeking foreclosure action to send a notice to the borrower at least 30 days in advance, to encourage the homeowner to work with a mortgage counselor.

Creditors also must include contact information for the Indiana Housing and Community Development Authority’s Indiana Foreclosure Prevention Network.

If that notice doesn’t work, a second notice will be sent when the foreclosure is filed, informing the debtor he or she may schedule a settlement conference through the court.

It is those meetings for which Allen Superior Court Judge Nancy Boyer and Allen Circuit Court Judge Thomas Felts are gearing up. Currently, Allen County Circuit Court handles about 55 percent of the county’s foreclosures, with Superior taking the rest.

The 30-day requirement may be found on p. 9 (SECTION 5) of this PDF version of SEA 492.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Courts | Indiana Law

Ind. Courts - "ACLU sues over prayer limits at federal prison"

Charles Wilson of the AP reports:

Two Muslim inmates held in a special unit at the U.S. prison in Terre Haute say they aren't allowed to pray in groups as often as their religion commands and have asked a federal judge to ease limitations on worship imposed by the Bureau of Prisons.

The prison in western Indiana houses several high-security inmates, including American-born Taliban soldier John Walker Lindh, who is serving a 20-year sentence for aiding Afghanistan's now-defunct Taliban government.

The June 16 lawsuit filed by the American Civil Liberties Union of Indiana challenges limits on Islamic worship in the prison's restrictive Communications Management Unit, where about 30 of the 40 inmates are Muslim.

Muslims are required to pray five times a day, but the lawsuit, filed on behalf of inmates Enaam Arnaout and Randall T. Royer, says inmates in the CMU are allowed to pray as a group just one hour a week. The ACLU contends that violates a federal law barring the government from restricting religious activities without showing a compelling need.

The lawsuit is one of two the ACLU has filed concerning conditions in the CMU in the past week. The ACLU claimed in a June 18 lawsuit that the unit was created in secrecy and keeps its mostly Muslim inmates in virtual isolation.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Courts

Ind. Courts - More on: Commission on Judicial Qualifications has issued a Public Admonition against the Honorable Roger L. Huizenga, Walkerton Town Court in St. Joseph County

Updating this ILB entry from June 22nd, Jeff Parrot of the South Bend Tribune reports today:

The commission determined that Judge Roger L. Huizenga violated judicial rules by employing his wife as clerk from 1995 through 2009. In 1998, the commission issued an advisory opinion stating that a judge should avoid “nepotism and favoritism,” and that “employment or appointment of a spouse likely will never be appropriate.”

Once the opinion was issued, Huizenga failed to contact the commission and ask about the propriety of his wife’s continued employment with the court, the commission concluded.

She resigned once she became aware of the commission’s investigation.

Huizenga also violated judicial rules when he discussed how to resolve misdemeanor traffic infractions against a woman who had approached him about receiving tickets for speeding and having an expired license plate. The judge told her she would have to pay the ticket but could have the license plate ticket dismissed if she paid to have it renewed within 30 days.

When she later failed to renew her license plate, her license was suspended.

The commission found that the judge violated judicial rules by effectively negotiating a plea agreement without notifying the state.

The public admonition means the commission will drop its case and won’t formally charge him with ethical misconduct.

When contacted Tuesday by The Tribune, Huizenga’s Walkerton attorney, Fred Jones, said Huizenga declined comment.

Jones said Huizenga did not realize he was violating judicial ethics rules in either case. Huizenga did not recall receiving notice of the 1998 nepotism advisory opinion, and said he had spoken with judges across the state who also employed their spouses, he said.

On the traffic ticket issue, Jones said Huizenga, a judge for at least 10 years now, has routinely negotiated agreements with defendants in such a manner, and thought the St. Joseph County prosecutor’s office had given its approval to do so.

He now realizes he was wrong on both counts, said Jones, who noted that town court judges do not have to be lawyers or hold law degrees.

Huizenga has learned all he knows from training and conferences he has attended, and will make changes the commission seeks, Jones said.

“He’s going to toe the line as religiously as he can,” Jones said. “He feels bad this has happened but it did and he will not make the same mistakes again.”

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Courts

Ind. Gov't. - "Indiana Funds May Not Be Done with Chrysler"

"Indiana Treasurer Richard Mourdock is contemplating yet another legal challenge to the terms under which Chrysler sped through reorganization." So reports this story by David Welch in Business Week. Some quotes:

The Indiana pension funds that went all the way to the Supreme Court to try to stop the sale of Chrysler to Italy's Fiat Auto (FIA.MI) might be back again. Indiana Treasurer Richard Mourdock is mulling a legal motion to get the nation's highest court to rule whether the sale—which was finalized in bankruptcy court on June 10—was valid.

The funds hope that the court will either overturn the sale or force the new Chrysler—which is owned by Fiat, the United Auto Workers, and the federal government—to pay secured creditors such as the Indiana pension plans some more money. Legal experts say it's a long shot, since a federal appeals court and Supreme Court Justice Ruth Bader Ginsberg already denied their efforts during the bankruptcy process.

Still, while it's hard to imagine the sale of Chrysler being overturned, Indiana's persistence shows what can happen now that the government is so deeply involved in Big Business. People like Mourdock cry foul and fight not only to recover more money, but to prove a point.

Mourdock, who has already spent $2 million of Indiana's money in a failed fight to recover more cash, admits that he is also motivated by principle. Mourdock argues the government rushed the sale of Chrysler and used its influence to manipulate bankruptcy proceedings. He is also personally opposed to government ownership of business. "John Wayne never needed a bailout," Mourdock says. "Is it about money? Is it about principle? Is it about the law? Yes. It's about more than Chrysler and Indiana. When we see the law has no meaning, it sets a bad precedent." * * *

If Mourdock decides to file the motion, the pension plans' hired counsel, aggressive Florida attorney Tom Lauria, will work pro bono. But the state's Solicitor General would also work on the case. That could be problematic since some of Mourdock's own constituents oppose his fight. Had Indiana stopped the sale and the carmaker was liquidated, some of the state's 7,000 Chrysler jobs would have been at risk. Those voters let him hear it. "They thought I was trying to attack their jobs," Mourdock says.

That's the tightrope Mourdock walks. While some constituents want him to drop the fight, he and Lauria may keep going. * * *

Lauria says Justice Ginsberg denied the review without ruling on the merits of the case. So he wants to get a review. He plans to push the issue on three points. His first point is that the UAW and federal government are two of the purchasers of Chrysler, but they have conflicts of interest because they were also creditors before the bankruptcy started. So the sale could be overturned on those grounds. His second complaint is that if the court believes they are still legitimate buyers, then he wants the court to revisit how much every creditor got paid.

And last, Lauria still wants the Supreme Court to rule on whether the Treasury Dept. could loan to carmakers using TARP without consent from Congress. TARP was originally set up for banks. If not, then the government couldn't own a piece of Chrysler and the whole deal would have to be reconstructed. * * *

Having lost every round so far, Mourdock has to decide whether he has a shot at winning and if his constituents want him to keep fighting.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Government

Courts - Interesting Connecticut decision on private waivers of First Amendment free speech rights

Thomas B. Scheffey has an article today in The Connecticut Law Tribune that begins:

Establishing a new point of Connecticut case law, the state Supreme Court concluded that private waivers of First Amendment free speech rights are "presumptively enforceable."

Decisions on the validity of such waivers should be made on a case-by-case basis, taking into account the background and abilities of the person waiving the rights, the Supreme Court ruled.

The decision, written by Chief Justice Chase T. Rogers, came in a case involving a multimillionaire skin doctor and his ex-wife, who wanted to talk about their divorce on a television news magazine show.

But Rogers wrote that a confidentiality agreement in which Madeleine Perricone agreed not to talk about her divorce was an acceptable prior restraint on free speech. Even if such waivers don't specifically mention First Amendment rights, they are valid "as long as the waiver was intelligent and voluntary," Rogers wrote.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Courts in general

Law - More on "Amazon Threatens Cuts Over State Taxes "

Updating this ILB entry from June 19th, Geoffrey A. Fowwler of the WSJ has a story today headed "Amazon Warns Calif. Lawmakers on Sales Tax Bill ." It begins:

Amazon.com Inc. sent a letter to California legislators on Monday threatening to end its business with marketing affiliates in the state if legislation passes forcing the Seattle e-commerce company to collect sales tax from California customers.

The letter follows similar threats Amazon made last week in North Carolina and Hawaii, after those states moved closer to passing legislation that would force e-commerce companies to collect tax if they have online marketing affiliates – people who get a sales commission from links on their own Web sites – in the state. Amazon won't say how many people are in its affiliates program.

Amazon's letter to California Gov. Arnold Schwarzenegger and leaders of the state assembly and senate called the proposed tax legislation "unconstitutional." The proposed law, AB 178, "ultimately would require sellers with no physical presence in California to collect sales tax merely on the basis of contracts with California advertisers," wrote Amazon's vice president for global public policy Paul Misener in a copy of the letter reviewed by The Wall Street Journal.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to General Law Related

Ind. Law - "Public parks, private purposes" [Updated]

Andrea Neal, former editorial page editor of the Indianapolis Star, has a definitely worth-reading in full opinion piece today on the use of Military Park. It begins:

Long before it was fashionable to advocate for parkland and civic space, Indiana's founding fathers wrote the idea into our constitution. The framers didn't want future generations selling off prime public land: the Statehouse, Monument Circle or Military Park, in particular. So in Article 15, Section 9, they declared those properties "shall not be sold or leased."

That language is why Indianapolis activist Clarke Kahlo has challenged the fencing off of Military Park in Downtown Indy for special events that charge admission. "Essentially, Military Park has been privatized," Kahlo argues. "They're allowing it to be controlled by private entities contrary to the Constitution."

Donated to Indiana by Congress in 1827, Military Park was the city's first public park and site of the first State Fair in 1852. The 14-acre green space, referred to then as the Parade Ground, was used during the Civil War as a marshalling area for Union troops.

On any given day, you might find joggers or picnickers there, but some weekends it's closed off for functions. A recent example was the June 6 Vintage Indiana, "a festival of wine, food and fun," for which tickets cost $25. Next up, Eiteljorg Museum's Indian Market and Festival Saturday and Sunday. Tickets are $8 in advance, $10 at the gate. Then there's Rib America Fest 2009 on Labor Day weekend -- $5 general admission and "no food or beverages allowed." Organizations that rent the park pay fees based on the size of the crowd and their not-for-profit or commercial status.

Although the dictionary defines lease as "a contract granting use or occupation of property during a specified period in exchange for a specified rent," the state says short-term events are fine. "We believe these types of uses are not 'leases' and do not violate the Indiana Constitution," the attorney general's office said. Robert Whitt, executive director of White River State Park, said the commission collects about $250,000 a year renting out the park and other commission-operated facilities.

Marcia J. Oddi, editor of the Indiana Law Blog
, said a similar division of opinion existed at the constitutional convention of 1850-51.

For background, see this ILB entry from Feb. 8th, headed "Ind. Law - Is the State of Indiana violating the Constitution in its use of Military Park?."

[Updated 6/25/09] And don't miss the "Readers' Comments" at the end of this Star article.

Posted by Marcia Oddi on Wednesday, June 24, 2009
Posted to Indiana Government | Indiana Law

Tuesday, June 23, 2009

Ind. Law - What's in the Senate budget? [Updated Again]

Yesterday the Senate passed its version of HB 1001 and sent it back to the House. The House can concur in the Senate amendments, in which case the bill will go to the Governor. Or the House can disagree and send the bill to conference committee, to try to work something out between the two houses. At any time, however, the House still can withdraw its objections and agree to the Senate version.

Today Governor Daniels issued this press release:

The Senate compromise, while significantly different from either of my two proposals, protects taxpayers within the limits I’ve requested and I would sign it. I know there are many House Democrats who would prefer a budget that keeps Indiana in the black to one that takes us into bankruptcy, and we invite them to join this compromise now and bring the special session to a successful close. Mr. Speaker, please just free your followers to vote their conscience and let’s go home.
I've taken a look at the Senate version of 1001, just to see if it contains any surprises. "Taking a look" was not that simple, at this point the PDF version of the Engrossed Bill is nearly 30 MB, making it very difficult for most citizens to review, unless they first download the entire document.

I was able to download it and using "reduce file size" in Adobe Acrobat, turn it into an identical document of only 2.3 MB. I've posted it here. Don't forget that you can use the Adobe search function.

Here are some items that caught my eye as I skimmed through the over 400 page document. I didn't spend much time on the budget itself, but on the balance of the bill where the other provisions are packed in. (Note that the page numbers I use are those in the PDF document, rather than on the bottom of the bill's pages).

Definitions: p. 10, lines 4-6:
(1) "Augmentation allowed" means the governor and the budget agency are authorized to add to an appropriation in this act from revenues accruing to the fund from which the appropriation was made.

p. 81, lines 47-48

Total Operating Expense 1,522,791 1,560,016

p. 118-122, line 28 and on - SECTION 52 adds a department of child services ombudsman, who is appointed by the governor and reports directly to the commissioner. Serves "at the pleasure of the governor." See also beginning at p. 329, SECTION 339.

p. 129, line 3-27 - SECTION 60 creates a "retiree health benefit trust fund" for purposes of 4-9.1-1-7. "The money in the trust fund is appropriated to the budget agency for providing the retiree 27 health benefit plan developed under IC 5-10-8.5." [Updated Again: Read this closely, and in conjunction with this ILB entry from May 31st]

p. 129, line 4- - SECTION 62 - capital improvement board - state investment in obligations of

p. 135, line 17 - SECTION 74. Deals with assessment of golf courses.

p. 290, line 43, SECTION 254-256. Makes changes in the new law authorizing use of golf carts on city streets.

p. 302, line 12, SECTION 282 - virtual charter schools

p. 339, line 23 SECTION 360 - local official may waive compensation

p.. 372 (starting here or perhaps before), CIB related, continues through 388, at least

p. 398, line 20, SECTION 437 - creates big gaming study committee

p. 402, line 442, SECTION 442 - repeals CIB

Note. A number of items I've seen in prior versions are not included here. Also, the "Augmentation allowed" language seems pretty remarkable to me, given the constraints of Article 3, Sec. 1 and of Article 10, Sec. 3 of the Indiana Constitution. Finally, I highlighted the Notre Dame appropriations because of this April 20th ILB entry.

[Updated] I ran a search of the budget bill for the phrase "augmentation allowed" and found 199 instances, in addition to the definition itself. The augmentation concept, along with the longstanding authorization granted the Governor to elect to not allocate appropriations, found here in SECTION 30 at p. 104, line 37:

SECTION 30. [EFFECTIVE JULY 1, 2009] 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 2009-2011 biennium, if it is considered necessary to do so in order to prevent a deficit financial situation.
pretty much means that this budget, if passed, is only a starting point. Nothing is written in stone -- an appropriation may be augmented, or the allotment of an appropriation may be withheld, at the determination of "the Governor and the Budget Agency," sometimes with the "advisory recommendation" of the state budget committee.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Indiana Government | Indiana Law

Ind. Decisions - Supreme Court issues fourth opinion today

July 1st is right around the corner. . .

Today the Supreme Court issued a fourth opinion, a 6-page, 5-0 decision in the case of Lucio v. State. Justice Dickson writes:

The defendant, Juan Lucio, seeks reversal of his convictions for two counts of Murder and one count of Conspiracy to Commit Murder and the accompanying two sentences of life im-prisonment without parole and one sentence of fifty years arising from his role in the April, 2007 deaths of Rebecca Payne and George Benner in Carmel, Indiana. In this direct appeal, he presents a single issue, arguing that the trial court erred in denying his request for a mistrial when, in response to a juror-submitted question, a witness violated a pretrial order by testifying that she thought the defendant had met the alleged co-conspirator and murder triggerman in a county jail. We affirm the trial court. * * *

Concluding that the trial court properly responded to a witness's inappropriate answer to a jury question, and that the inadvertent answer was not thereafter used by the prosecution, we find no error in denying the defendant's motion for mistrial and therefore affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals court reverses South Bend cocaine conviction"

The Court of Appeals 2-1 decision yesterday in Tamica M. Webster v. State of Indiana is the subject of a story today in the South Bend Tribune:

SOUTH BEND — The Indiana Court of Appeals has reversed a woman’s cocaine possession conviction because the court says the search of her purse by police was unjust.

Tamica Webster was arrested in September 2007 during a traffic stop in South Bend in which an Indiana State Police officer pulled over Webster and her boyfriend on suspicion of speeding.

The police officer at first let Webster, who was not driving, walk toward a nearby gas station where she worked, according to the case summary, but later called her back because he believed she had the car’s registration in her purse.

The trooper than noticed that the woman’s purse appeared to be stretched and he believed she might have a gun. Webster also started acting strangely, clutching the bag and turning away from the officer after he repeatedly told her not to put her hands in her purse, according to the summary.

The officer then handcuffed Webster and searched the purse, where he found cocaine.

But the appeals court found that the degree of concern that Webster had violated the law was low and that the officer "asked Webster to come back to the traffic stop because he thought she had the vehicle registration, not because of suspicious criminal activity."

"The degree of intrusion was high because she complied with the officer's request to return to the traffic stop, which imposed on her liberty. When he ... searched her purse without a warrant, that was a severe intrusion on her ordinary activity," wrote appeals court Judge Michael Barnes.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (5):

In Kenneth E. Smith, Jr. and Cathy Smith, et al v. Gerhard King and Christine King, a 3-page opinion on rehearing, Judge Brown writes:

Jeffrey Harbrecht petitions for rehearing of this court's published opinion in Smith v. Harbrecht & King, 902 N.E.2d 878 (Ind. Ct. App. 2009), in which we affirmed the trial court's grant of summary judgment to Gerhard King and Christine King. On rehearing, Harbrecht raises two issues, which we restate as:

I. Whether this court erred by holding that Harbrecht waived the argument that King was performing work as a general contractor; and II. Whether a question of fact exists regarding King's duty to perform his work in a safe manner.

For the following reasons, we grant Harbrecht's petition for rehearing and clarify and affirm our prior opinion.

In Sheehan Construction Co., Inc., et al. v. Continental Casualty Co., et al. , a 16-page, 2-1 opinion, Judge May concludes:
The damage to the class members' homes was not “property damage” covered by the Continental and Indiana policies, and the trial court correctly granted summary judgment for the insurers. Sheehan's action against MJ for negligent failure to procure insurance was brought more than two years after Sheehan, in the exercise of ordinary diligence, could have discovered it might not have had the coverage it expected. Summary judgment for MJ was therefore correct. We affirm the trial court.

RILEY, J., concurs.
BROWN, J., dissents with separate opinion [that begins] I respectfully dissent. I conclude that summary judgment is improper because there is a question of fact regarding whether the Class's and Sheehan's claims are for “property damage” caused by an “occurrence.”

In William Groome and Vicki Groome v. Donlin Corp., et al, a 13-page opinion, Judge Friedlander writes:
In this consolidated appeal, William and Vicki Groome appeal the trial court's order setting aside tax deeds for royalty interests from an oil and gas lease relating to parcels of real estate owned jointly and/or individually by Donlin Corp., Kevin Masterson, Anne Nestrick Trust, Beverly Masterson Family Trust, Don Masterson Family Trust, and John Werner (the Appellees). The Groomes present the following restated issues on appeal:

1. Did the trial court lack subject matter jurisdiction to rule upon the Appellees‟ complaints to set aside the tax deeds? 2. Did the trial court err in determining that the Appellees were persons entitled to notice pursuant to Ind. Code Ann. § 6-1.1-25-4.5 (West, PREMISE through 2008 2nd Regular Sess.)? 3. If the Appellees were entitled to notice, does the evidence support a finding that they were not properly given notice?

We affirm.

In In the Matter of the Visitation of C.L.H.; B.L.H. v. G.L.H. and B.J.H., a 16-page opinion, Judge Najam writes:

B.L.H. (“Mother”) appeals from the trial court's order awarding G.L.H. (“Grandfather”) and B.J.H. (“Grandmother”) (collectively “Grandparents”) visitation of Mother's son, C.L.H. Mother presents a single dispositive issue for our review, namely, whether the trial court abused its discretion when it awarded Grandparents visitation with C.L.H. We reverse.

[See pp. 12-14 for overview of grandparents' visitation rights in Indiana.]

The decision to deny Grandparents visitation is not something that Mother took lightly. And, while Grandparents enjoyed a very significant relationship with C.L.H. during the first five years and eight months of his life, that fact is not the touchstone in determining C.L.H.'s best interests. See Woodruff, 762 N.E.2d at 228. Rather, the presumption is that Mother, a fit parent, has made a decision that is in C.L.H.'s best interests, and that decision deserves special weight under the law. We conclude that the trial court's findings do not support the conclusion that visitation is in C.L.H.'s best interests. Grandparents have failed to meet their burden and to rebut the presumption accorded to Mother. See Hicks, 884 N.E.2d at 876 (reversing trial court's grant of grandparents visitation where, contrary to trial court's finding, Father's decision to deny visitation was based on his reasonable concerns). Under the circumstances, we reverse the trial court's order awarding visitation to Grandparents.

In Jay B. Stokes v. State of Indiana , a 15-page, Judge May writes:

Jay Stokes was convicted of attempted armed robbery, possession of a handgun by a serious violent felon, and being an habitual offender, and was sentenced to serve sixty years. He argues 1) there should have been a mistrial because an alternate juror was involved in the jury deliberations; 2) the State improperly indicated to the jury Stokes had been involved in other crimes; 3) there was insufficient evidence he attempted to take anything from the liquor store he was accused of trying to rob; 4) there was insufficient evidence he was the person who committed the crimes that made him an habitual offender; 5) the court should not have admitted evidence of his prior convictions; and 6) his sentence is excessive.
We affirm
In Gabino Gonzalez v. State of Indiana , an 11-page opinion, Judge May writes:
Gabino Gonzalez drove his pickup truck into a school bus while intoxicated. A jury found him guilty of criminal mischief and operating while intoxicated. Before his trial, while he was attempting to negotiate a guilty plea, Gonzalez wrote a letter to the school corporation in which he apologized for the accident and admitted he had been drinking that day. The trial court allowed the State to enter that letter into evidence. Gonzalez argues on appeal that was error because the letter was hearsay and because a letter written as part of guilty plea negotiations is inadmissible at a trial.

The letter should not have been admitted and the error was not harmless. We accordingly reverse and remand for a new trial.

NFP criminal opinions today (12):

Stephen Taylor v. State of Indiana (NFP)

August Trotter v. State of Indiana (NFP)

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

Joseph Craig Cassel v. State of Indiana (NFP)

Jared Henson v. State of Indiana (NFP)

Tyshawna Carpenter v. State of Indiana (NFP)

Ralph Rogers v. State of Indiana (NFP)

Warren V. Graham Jr. v. State of Indiana (NFP)

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

Allen Parker v. State of Indiana (NFP)

Frank Jenkins, IV v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides three today

In Northern Indiana Public Service Co. v. United States Steel Corp. , a 12-page, 4-1 opinion, Chief Justice Shepard writes:

Northern Indiana Public Service Company and its customer U.S. Steel settled a rate and service dispute in 1999. In this case, U.S. Steel and asked the Indiana Utility Regulatory Commission to interpret the order it issued in 1999 approving a settlement between the parties. We affirm the Commission. * * *

They submitted the Settlement and Contract to the Indiana Utility Regulatory Commission, which approved it by an order dated July 8, 1999 after notice and an evidentiary hearing. Six years later, when a price adjustment provision in the Contract became effective, the parties disagreed on its application. NIPSCO maintained the price adjustment applied both to the Energy Charge (a fixed number of hours of use each month given by the agreement) and the Demand Charge (for energy use beyond the number of hours given for the Energy Charge’s fixed number). U.S. Steel insisted it applied only to the Energy Charge.

On November 17, 2006, U.S. Steel filed a complaint seeking to enforce its interpretation of the Contract. U.S. Steel then filed its motion for summary judgment. After briefing and oral argument, the Commission granted U.S. Steel’s motion for summary judgment, an unusual procedure for the Commission, on May 9, 2007, pursuant to 170 Ind. Admin. Code 1-1.1-26(a) (2007). NIPSCO appealed to the Court of Appeals, which reversed. N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 881 N.E.2d 1065 (Ind. Ct. App. 2008). We granted transfer, 898 N.E.2d 1223 (Ind. 2008)(table). * * *

The Commission found that the language of the Contract unambiguously supported U.S. Steel’s interpretation that the Adjustment applied only to the Energy Charge, that the definitive Contract superseded any earlier expressions of intent, and that the Term Sheet did not make the Contract ambiguous or demonstrate a contrary intent. (App. at 13-17.) In reaching these conclusions, the Commission applied utility and contract law consistent with established principles. * * *

None of the Commission’s conclusions run afoul of reasonable application of the well-established principles of contract law.

We affirm the Commission’s order.

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., would have denied transfer, believing the analysis and conclusion of the Court of Appeals to be correct.

In James H. Helton, Jr. v. State of Indiana, a 7-page, 5-0 opinion, Justice Boehm writes:
This is an appeal from the denial of post-conviction relief. The petitioner alleges that defense counsel rendered ineffective assistance by failing to move to suppress evidence prior to his guilty plea. The petitioner did not establish what other evidence of guilt was or was not available. He therefore failed to meet his burden of proof to establish that he was prejudiced by counsel’s alleged omission.
In Frank Dennis v. State of Indiana, a 7-page, 5-0 opinion, Justice Boehm writes:
This is a belated direct appeal from sentences for multiple crimes related to two 1997 murders. Life without parole was imposed, so the appeal is directly to this Court. Because the trial court did not enter a sufficient sentencing statement to support the sentence of life without parole, we vacate that sentence and remand for entry of a sixty-five-year term to run consecutive-ly to the defendant‘s other sentences for an aggregate sentence of 190 years. We otherwise af-firm the sentences. * * *

The sentence of life without parole for the murder of Shirley Newsom is vacated, and the case is remanded with instructions to impose a term of sixty-five years on that count to run con-secutively to the sentences on the other counts. Dennis‘s sentences are otherwise affirmed.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Ind. Sup.Ct. Decisions

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

Cunningham v. Masterwear Corp (SD Ind. Judge MCKinney) is a 7-page opinion involving the Cunningham's, whose photographic studio and later living quarters were located "next door to a building that until 1991 had contained a dry-cleaning business operated by defendant Masterwear." Judge Posner continues:

In December 2003, the EPA warned them that their building contained perchloroethylene (PCE) vapors in a concentration of 200 parts per billion and that “this amount of the compound could be significant and pose a health concern over the long term.” The vapors were apparently the result of improper storage of chemicals by Masterwear. Upon receiving the letter the plaintiffs moved out of the building and put it up for sale. (It was sold the following year.) They claim not to have had the symptoms of which they complain before they lived in the building and that after they moved out the symptoms diminished.

They seek damages both for the damage to their health and for what they contend is the depressed price at which they were forced to sell the property because of its contamination. The district court granted summary judgment for the defendants after disqualifying the plaintiffs’ expert medical witness under Fed. R. Evid. 702 and ruling that the hearsay rule barred the plaintiffs from testifying about the valuation of their property by appraisers. * * *

Houser [plaintiffs' expert] thus presented no evidence from which a trier of fact could infer that the plaintiffs’ exposure to PCE is likely to have contributed significantly (or for that matter at all) to their ailments.

The alleged impairment of the value of the plaintiffs’ property presents a separate issue—contamination can reduce property values without endangering anybody’s health. But like the health issue, causation turns out to be the plaintiffs’ Achilles heel. * * *

The critical question is how much they could have sold the building for had it not been for the contamination. Suppose that during the period in which the value of the plaintiffs’ property fell by 22 percent (from $135,000 to $105,000), it would have fallen by 12 percent had there been no contamination; then only a 10 percent change in the value of the property would be attributable to the contamination. The plaintiffs needed evidence by a real estate agent or real estate appraiser to establish the effect of the contamination on the value of their property. They did not attempt to present any such evidence.

In short, they failed to prove either personal injury or property damage, and the district court was therefore right to dismiss the case.

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

Environment - "Justices Say Waste Can Be Dumped in Lake"

Updating this ILB entry from yesterday, Leslie Kaufman of the NY Times reports today:

The Supreme Court ruled Monday that the Clean Water Act does not prevent the Army Corps of Engineers from allowing mining waste to be dumped into rivers, streams and other waters.

In a 6-to-3 decision that drew fierce criticism from environmentalists, the court said the Corps of Engineers had the authority to grant Coeur Alaska Inc., a gold mining company, permission to dump the waste known as slurry into Lower Slate Lake, north of Juneau.

“We conclude that the corps was the appropriate agency to issue the permit and that the permit is lawful,” Justice Anthony M. Kennedy wrote for the majority.

The corps permit, issued in 2005, said that 4.5 million tons of waste from the Kensington mine could be dumped into the lake even though it would obliterate life in its waters. The corps found that disposing of it there was less environmentally damaging than other options.

Environmental advocacy organizations sued, saying the Bush administration was violating 30 years of tradition under the Clean Water Act in which such waste was regulated under the much more stringent standards of the federal Environment Protection Agency. In 2007, the United States Court of Appeals for the Ninth Circuit, in San Francisco, agreed and invalidated the permit.

The Supreme Court overturned that decision Monday in Coeur Alaska Inc. v. Southeast Alaska Conservation Council, No. 07-984, saying there was nothing in the Clean Water Act that prevented the corps from making the decision.

Dissenting were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

Environmentalists said they worried that the ruling would set a precedent for dumping by mining and other industries.

“If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America,” said Trip Van Noppen, president of the environmental advocacy group Earthjustice, whose lawyer argued the case before the court.

Elizabeth Bluemink reports today in the Anchorage Daily News in a lengthy story - here are some quotes:
On Monday, Kensington's supporters -- including the entire Alaska congressional delegation and Gov. Sarah Palin -- hailed the Supreme Court decision as a positive step for Juneau and the state.

Coeur Alaska Inc., operator of the Kensington mine, announced plans to begin producing gold in the last half of 2010.

But environmentalists say their fight is not over.

About 150 members of the U.S. House of Representatives are co-sponsoring legislation this year seeking to reverse the Bush administration policy that the Supreme Court relied on in its ruling Monday. Also, a coalition of environmental groups are pleading with the Obama administration to cancel the Bush policy.

"If the Obama administration does nothing, it has busted the door wide open for destructive mining practices in other places," said Tom Waldo, a Juneau environmental attorney who argued the case all the way up to the Supreme Court.

He said the ruling will allow any developer of a project -- from Pebble to a coal-fired power plant in the Midwest -- to get around federal water-quality standards by petitioning the U.S. Corps of Engineers to redefine its waste as fill material, Waldo said.

That allows for easier, cheaper disposal: when industrial waste is considered fill, it doesn't have to meet state water-quality standards at the point of discharge; however, the water downstream still must meet water-quality standards.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Environment

Courts - "SCOTUS Affirms Reimbursement for Special Education"

Updating this ILB entry from yesterday, Tamar Lewin of the NY Times has a story today on the implications of the decision. Some quotes:

In a decision that could help disabled students obtain needed services and cost school districts millions of dollars, the Supreme Court ruled on Monday that parents of special-education students may seek government reimbursement for private school tuition, even if they have never received special-education services in public school. * * *

The issue in the Forest Grove case was whether a 1997 amendment to the Individuals with Disabilities Education Act (or IDEA) prohibited private-school tuition reimbursement for students who never received special-education services in public school.

The amendment says tuition may be available for students with disabilities “who previously received special-education” services in public school, if the school did not make a free and appropriate public education (or FAPE) available in a timely manner.

Forest Grove, backed by school-boards associations across the country, argued that the amendment precluded reimbursement for those, like T. A., who never received special-education services in public school.

But the high court, in a 6-to-3 ruling, rejected that argument.

“We conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received special education or related services through the public school,” Justice John Paul Stevens wrote in the majority opinion.

Justice Stevens said the school district’s interpretation would produce a result “bordering on the irrational.”

“It would be strange for the act to provide a remedy, as all agree it does, where a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether,” he wrote.

He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.

In his dissent, Justice David H. Souter, joined by Justices Antonin Scalia and Clarence Thomas, said that the disabilities law was designed to promote cooperation between school districts and families in developing an individualized education plan for each disabled student. The dissent also discussed the high costs of private-school placements.

“Special education can be immensely expensive, amounting to tens of billions of dollars annually and as much as 20 percent of public schools’ general operating budgets,” Justice Souter wrote. “Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools.”

The NYT provides this link to the opinion in Forest Grove v. T.A.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Courts in general

Ind. Courts - More on: "State lawyers ask for $109 million judgment in Pastrick case"

Supplementing this ILB entry from yesterday, today Andy Grimm of the Gary Post-Tribune reports in a story headed "Ex-mayor owes city $3 or $109M":

Former Mayor Robert A. Pastrick owes East Chicago damages totaling somewhere between $3 and $108,998,876.30, say attorneys in the landmark civil racketeering case against the legendary Northwest Indiana political boss.

In filings entered Monday in U.S. District Court in Hammond, lawyers for state Attorney General Greg Zoeller laid out a case that Pastrick, former aide James Fife III and former city councilman Frank Kollintzas owe East Chicago taxpayers millions paid for street and sidewalk paving, tree-trimming and other work performed at city expense in the run-up to the 1999 Democratic primary.

A total of $32 million includes $1.6 million in fees paid to lawyers who defended a dozen city officials eventually convicted of federal criminal charges in the sidewalk scheme, and money paid to Fife and other city consultants with ties to Pastrick's political

Under racketeering statutes, Judge James Moody can triple the damage amount, for a total of nearly $109 million, including interest.

Pastrick's attorney, Michael Bosch, said Zoeller's legal team failed to prove their case that the eight-term mayor ran city government as a criminal racket that enriched political allies and cronies, and argued the state deserved only nominal damages of $1 -- $3 if Moody chose to triple the amount.

The day before Pastrick and Fife were set to go to trial, the pair entered a motion for default judgment by Moody, meaning they would not defend themselves in court. Kollintzas, who was found guilty in a federal criminal trial for his role in the sidewalk scheme and fled to Greece in 2004, did not appear in court.

Moody must decide, based on testimony earlier this month by witnesses for the state, how much Pastrick, Fife and Kollintzas must pay in damages, though sources close to the case say Pastrick and Fife likely will file bankruptcy to avoid paying a significant

Zoeller also asked for Moody to order a "forensic audit" of the books of East Chicago Second Century, a for-profit foundation set up by Pastrick allies Tom Cappas and Peter Manous that has received million from the city's casino revenue since 1998 under a deal brokered by Pastrick.

J. Lee McNeely, a Shelbyville attorney for Second Century, said federal investigators have already pored over the foundation's finances and called the state's filing "ridiculous."

"That pleading is so flawed that it defies imagination," McNeely said. "We are not a party to that lawsuit."

Moody has not set a date for his ruling.

Posted by Marcia Oddi on Tuesday, June 23, 2009
Posted to Ind Fed D.Ct. Decisions

Monday, June 22, 2009

Ind. Courts - "Lebanon City Court has hired a collection agency"

From the story in the Lebanon Reporter:

Chet Klene, CEO of Eagle Accounts Group LLC, and City Court Judge Tamie Morog recently explained to the city council how the arrangement will work.

Klene said there is no cost to taxpayers. Eagle Accounts makes money by keeping a 30 percent markup on fees and court costs, which it collects from the defendants. The original fines and fees go to the city court.

“There is zero out-of-pocket cost to the city,” Klene said.

Morog said her court clerk works only 32 hours a week, not enough time to keep up with paperwork and chase down defiant defendants.

“I guess I could issue body attachments on everybody,” Morog said. “But that doesn’t seem to be the right thing to do at this time.”

A body attachment is an arrest order issued after a defendant does not appear at a “show cause” hearing, which determines why a person should not be convicted of contempt of court charges.

Morog cited the weak economy as one factor in her reluctance to have defendants arrested.

Klene said most of the collections are for traffic tickets issued to college students or out-of-state drivers. Eagle Accounts tracks the defendants with a skip-tracing program.

“It’s just sitting down and trying to find them, whereas your court and clerk are probably overwhelmed,” Klene said.

“It’s just good, old-fashioned bloodhound work,” he said.

Collected money will be sent to city court weekly, Klene said.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Indiana Courts

Ind. Courts - "State lawyers ask for $109 million judgment in Pastrick case"

Dan Hinkel reports today in the NWI Times:

Lawyers for the state of Indiana asked a federal judge Monday for a $109 million judgment against former East Chicago Mayor Robert Pastrick, top aide James Fife III and missing former city councilman Frank Kollintzas.

Pastrick's lawyer, Mike Bosch, suggested the judge award $3.

Hammond federal Judge James Moody ordered the lawyers to write the proposals regarding damages Pastrick, Fife and Kollintzas could owe for their alleged roles in the 1999 sidewalks-for-votes scandal that led to convictions against several city officials.

Fife and Pastrick were never charged criminally in the matter, but neither man mounted any defense against the state of Indiana's civil lawsuit, which sought to hold the defendants accountable for money spent on the sidewalks-for-votes scandal.* * *

The state's legal team, led by private Chicago lawyer Patrick Collins, proposed Moody rule the "racketeering enterprise" run by the defendants caused $32,187,242 in damage to the city. State lawyers argued Moody can triple that amount, tack on $12,437,150.30 in interest and levy a total of $108,998,876.30 against the men.

In a filing less than 1/4 the size of the state's proposal, Bosch said the state had proven little about the damages allegedly caused. Bosch wrote that Moody cannot "guess" about the damages. He proposed Moody should award $1 in damages, then triple that amount to $3.

The state's lawyers also renewed their call for Moody to order a "forensic accounting" of money received by Second Century and the Foundations of East Chicago, recipients of vast sums of money under Pastrick's casino deal.

The nonprofit Foundations get 2 percent of the Ameristar Casino and Hotel's revenues, while Second Century, a for-profit company, takes 0.75 percent. The Foundations have been the focus of a court fight over the money's distribution to churches and other groups. Second Century's use of the funds remains largely mysterious. The company is run by Pastrick allies Thomas Cappas and Michael Pannos.

The NWI Times includes links to the state of Indiana's proposed findings of fact and conclusions and those filed by counsel for former East Chicago Mayor Robert Pastrick in the matter of State of Indiana v. Pastrick et al.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "It's the Law: Fireworks have some restrictions'"

Ken Kosky's NWI Times' "It's the Law" column today, June 22nd, looks at fireworks.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Indiana Law

Law - "Howrey Introduces Apprenticeship Program for Associates" [Updated]

This is interesting. Jeff Jeffrey of the Blog of Legal Times did the report on Howrey LLP that begins:

Starting this fall, Howrey will begin selling recruits on a new program at the firm in which associates will spend their first two years serving as “apprentices” before taking on significant client work.

As part of the two-year program, associates will spend the majority of their time at the litigation-heavy firm attending training seminars where they will learn the practical skills of lawyering, said managing partner Robert Ruyak in an interview.

During their first year at the firm, associates will take classes on legal writing and research and will work on pro bono projects to give them hands-on experience without charging clients. In the second year of the program, associates will be embedded at client sites for several months at a reduced billing rate of between $150 and $200 an hour. They will also continue to take classes on litigation skills such as trial tactics, cross examination, and mediation and arbitration.

Approaching the problem from a different direction is this article by Paul Lippe of AmLaw Daily, headed "Welcome to the Future: Time for Law School 4.0."

See this WSJ Law Blog entry, posted by Ashby Jones, for much more on the new Howrey program.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to General Law Related

Ind. Law - More on "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 May 13th, where I wrote about the passage of SEA 554, the GAO has today released a 44-page report titled "MEDICAID: Source of Screening Affects Women’s Eligibility for Coverage of Breast and Cervical Cancer Treatment in Some States."

Indiana is mentioned throughout the report. Here is a quote beginning on p. 3 [p. 7 of the PDF]:

To identify alternatives available to low-income, uninsured women who need treatment for breast or cervical cancer, but who are not covered under the Treatment Act, we obtained general information from our Web-based survey of Early Detection Program directors. For a more in-depth understanding of these alternatives, we conducted case studies of three states: Florida, Indiana, and Virginia. These states were selected because they are among the states that do not extend Medicaid eligibility under the Treatment Act beyond the minimum, women whose screening services were paid for with CDC funds. These states also have low rates of low-income, uninsured women screened for breast and cervical cancer by the Early Detection Program when compared to the national average. In each state, we interviewed Early Detection Program directors and other officials,10 representatives of cancer advocacy groups such the American Cancer Society and Susan G. Komen for the Cure (Komen for the Cure),11 and other relevant organizations and providers. For more information on our methodology, see appendix I.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Indiana Government | Indiana Law

Courts - Still more on what is a "debt relief agency" for purposes of the BAPCPA

Updating earlier ILB entries, Adam Liptak of the NY Times writes today in his "Sidebar" column under the heading "Free-Speech Case for a Debt-Ridden Age ." A quote:

[T]he Supreme Court did just agree to hear a free-speech case that captures the tenor of our times. It concerns bankruptcy.

One of the plaintiffs in the case is Robert J. Milavetz, a 73-year-old lawyer from Minnesota. In the 1960s and 1970s, he represented conscientious objectors and people accused of violating obscenity laws. The new free-speech battleground, he says, is whether the government can gag lawyers seeking to help their clients arrange their financial affairs.

In 2005, Congress enacted a law that seems to bar lawyers from advising their clients to take on more debt if they are considering bankruptcy.

“Any lawyer with a First Amendment background would immediately recognize the First Amendment problems in this statute,” Mr. Milavetz said.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Courts in general

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

For publication opinions today (1):

Tamica M. Webster v. State of Indiana is an 11-page, 2-1 opinion where the majority reverses Tamica Webster's conviction for Class C felony possession of cocaine. Judge Barnes concludes:

Trooper Parchman’s warrantless search of Webster’s purse violated her rights under Article 1, Section 11 of the Indiana Constitution. The evidence obtained as a result of the search should not have been admitted into evidence. We reverse.
Cjief Judges Baker dissents, concluding:
In sum, I believe that Trooper Parchman’s actions were reasonable. As a result, the trial court did not abuse its discretion in admitting the cocaine into evidence and I would affirm Webster’s conviction.
NFP civil opinions today (3):

Herman Button v. Sue James (NFP) - "The trial court improperly threatened Button with imprisonment for his failure to propose a plan to pay the judgment, and any order requiring him to pay a judgment must be based on Button‟s ability to pay it. We reverse and remand."

Brian Holtzleiter v. Angela Holtzleiter (NFP) - "Appellant-Respondent, Brian Holtzleiter (Brian), appeals the trial court’s Decree of Dissolution of Marriage, dissolving his marriage to Appellee-Petitioner, Angela Holtzleiter (Angela). We affirm in part, reverse in part, and remand with instructions."

James Ashburn and Lynette Ashburn, et al v. Memorial Hospital of South Bend, Dr. Jeanne E. Ballard, M.D., et al (NFP) - "We conclude that the trial court abused its discretion in striking Dr. Hegyi’s affidavit. As such, the trial court erred in entering summary judgment in favor of Dr. Ballard and the Group. We remand that claim for trial. We further conclude that the trial court properly entered summary judgment in favor of Memorial, as the record contains no evidence that Dr. Ballard failed to satisfy her duty of care with respect to obtaining informed consent."

NFP criminal opinions today (6):

Juan Hernandez v. State of Indiana (NFP)

Cantrell Byrd v. State of Indiana (NFP)

Cary L. Patrick v. State of Indiana (NFP)

Douglas Cure v. State of Indiana (NFP)

Phillip R. Benson v. State of Indiana (NFP)

Guiseppi Bailey v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Supreme Court to decide federal sex offender law"

James Vicini reports today for Reuters:

The U.S. Supreme Court said on Monday that it would decide whether Congress may adopt a federal law that keeps sex offenders in custody indefinitely after they complete their prison sentences.

The high court agreed to hear an Obama administration appeal seeking to reinstate a 2006 law providing for the continued detention of "sexually dangerous" convicted federal inmates who have served their prison terms.

A U.S. appeals court based in Virginia struck down the law for exceeding the limits of congressional authority and intruding on police powers Constitution reserves for the states, many of which have similar laws.

Here is the SCOTUSBlog entry, with links to all the filings.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 19, 2009

Here is the Clerk's transfer list for the week ending June 19, 2009. It is four pages long.

Four cases were granted transfer last week, see these ILB entries from June 18th and June 17th for details.

One case (see this June 16th entry - last case) was granted transfer with opinion.


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. Note that the search is now current through the May 22nd list.

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, June 22, 2009
Posted to Indiana Transfer Lists

Ind. Courts - Commission on Judicial Qualifications has issued a Public Admonition against the Honorable Roger L. Huizenga, Walkerton Town Court in St. Joseph County

Here is the release; here is the admonition.

From the release:

In one incident, Judge Huizenga was investigated for his actions that took place November 14, 2007. On that day, a defendant approached Judge Huizenga in his office about tickets she received for speeding and an expired license plate infraction. Judge Huizenga informed the defendant that she would have to pay the speeding ticket, but the expired license plate infraction would be dismissed if the license plate was renewed within thirty days. The defendant agreed to the offer but later failed to renew her plate, which resulted in the suspension of her driver’s license. No deputy prosecutor was present for the conversation between Judge Huizenga and the defendant. The conversation is considered ex parte and is not allowed. Ex Parte is a Latin word defined as "by or for one party" and refers to situations in which only one party and not the other appears before a judge. Except for limited exceptions not applicable to this matter, the Indiana Code of Judicial Conduct prohibits a judge from having a conversation with one party about substantive matters of the case when the other party is not present and is not given an opportunity to be heard.

Judge Huizenga acknowledges that this conduct violated Canons 1 and 2 of the Code of Judicial Conduct, which requires judges to ensure the fairness, impartiality, and integrity of the judiciary. He also admits that he violated Canon 3B(8), which forbids judges from initiating, permitting, or considering ex parte communications.

In a separate incident, Judge Huizenga was investigated for actions that took place from November 1995 through March 13, 2009 when Judge Huizenga employed his wife as the court clerk. In 1998, the Commission issued an Advisory Opinion setting out guidelines and restrictions for judges considering hiring relatives or friends. In that opinion, Indiana judges were advised to contact the Commission to discuss the potential employment of relatives and further were informed that “the employment or appointment of a spouse likely will never be appropriate.” Judge Huizenga did not contact the Commission to ask about the propriety of his wife’s continued employment with the court. However, after the initiation of the Commission’s investigation, Judge Huizenga did cooperate with the Commission by encouraging his wife to resign, which she ultimately did.

Judge Huizenga acknowledges that this conduct violated Canon 3C(4) and Rule 2.12, which state that a judge should avoid nepotism and favoritism.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Indiana Courts

Courts - SCOTUS releases three of final ten opinions this morning [Updated]

Details to follow - one was the voting rights case (Court did not strike down - opinion here) and another was the Coeur Alaska case (opinion here).

Check SCOTUSBlog for the most up-to-date info.

[More] From Reuters, by James Vicini, a story headed "Miner Coeur gets OK to dump waste into Alaska lake." Some quotes:

The Corps of Engineers, not the federal Environmental Protection Agency, has the authority to permit the slurry discharge, and the Corps acted in accordance with the law in issuing the discharge permit to Coeur, Justice Anthony Kennedy wrote in the Supreme Court's majority opinion. * * *

Both Coeur and the state of Alaska appealed to the Supreme Court. The federal government supported their appeals.

Environmentalists argued that modern mines had never been allowed to dump tailings into lakes, and the appeals court ruling confirmed a rule of law in place for more than 30 years.

Writing for the six-member court majority, Kennedy said deference must be given to the reasonable decision by the Corps of Engineers.

Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter dissented.

Officials at Earthjustice, one of three environmental groups involved in the case, expressed disappointment over the ruling.

"The Clean Water Act was intended to halt the practice of using lakes, rivers, and streams as waste dumps," said Tom Waldo, who argued the case. "Today's decision does not achieve these purposes."

The officials said the Bush administration rule giving the Corps of Engineers authority in such matters had reversed thirty years of successful regulation under the Clean Water Act. They urged President Barack Obama to act immediately to repeal the rule.

See also "Court OKs dumping gold mine waste in lake" by H. Josef Herbert of AP.

Joan Biskupic of USAToday has a long story that begins: "The Supreme Court on Monday declined to decide whether a key provision of the 1965 Voting Rights Act is constitutional, sidestepping by an 8-1 vote the dilemma at the heart of a closely watched case."

The third decision is the focus of this AP story by Jesse J. Holland, headed "Court says public must pay for private special ed." The story begins:

The Supreme Court has ruled that parents of special education students who opt for private school instead of trying the public system cannot be barred from seeking public reimbursement for their tuition costs.

The court ruled 6-3 Monday in favor of a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.

The opinion is Forest Grove School District v. T. A. (08-305).

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Courts in general

Law - "Concord Online Law School Places Second in National Moot Court Competition"

The team included Marjorie Daily from Indiana, and lost out to Standford University, according to this story in Welt Online, a German publication:

The moot court team of Concord Law School of Kaplan University won second place in the Fourth Annual Constance Baker Motley National Moot Court Competition in Constitutional Law on Saturday, June 20. The Concord team—Marjorie Daily and Thomas Fleming—fell to a team from Stanford University to become the first fully online law school to ever win the runner up position in this competition held during the American Constitution Society’s 2009 Annual Convention in Washington.

"The faculty, administration and students at Concord Law School are extremely proud of the moot court team and their performance in this competition,” said Barry Currier, J.D., President and Dean of Concord Law School. "Concord has been providing working professionals with the flexibility and convenience of a high-quality online legal education for more than 10 years. Their performance here demonstrates the breadth and depth of the legal education we provide and speaks to the quality of our student body.”

Daily of Indiana and Fleming of Colorado presented their arguments around questions of whether U.S. citizens can invoke the jurisdiction of federal courts to challenge warrantless wire tapping conducted by the federal government. Sixty-five teams competed in the event. The final round included only two teams—one from Concord and the other from Stanford. As the second-place team, Daily and Fleming took home a $2,000 cash prize.

Concord Law School of Kaplan University boasts an enrollment of 1,500 students across the country and around the world. Nearly 900 have completed the JD and EJD programs.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to General Law Related

Ind. Law - Barnes and Thornburg expands again

Tom Spalding reports in the Indianapolis Star:

Indianapolis law firm Barnes & Thornburg has acquired a 22-attorney firm in Minneapolis, establishing a presence in a major city outside the state for the third time this year.

B&T worked out an agreement with The Parsinen Law Firm P.A. to take over the practice there effective July 1. The deal was announced today.

B&T has offices in Elkhart, Fort Wayne and South Bend. B&T this year expanded into Atlanta and Columbus, Ohio. Minneapolis is its 10th office in the U.S.

"Even before the economy went south, we gave a great deal of thought as to what we wanted to accomplish," said B&T Managing Partner Alan A. Levin. "We wanted to broaden our footprint."

Other locations outside the state are Washington D.C., Grand Rapids, and Chicago.

See earlier expansion stories from April 13th and April 6th.

See today's lengthy B&T press release here.

Posted by Marcia Oddi on Monday, June 22, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/22/09):

Thursday, June 25th

Next week's oral arguments before the Supreme Court (week of 6/29/09):

Next Thursday, July 2nd

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 6/22/09):

Next week's oral arguments before the Court of Appeals (week of 6/29/09):

Next Tuesday, June 30th

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, June 22, 2009
Posted to Upcoming Oral Arguments

Sunday, June 21, 2009

Ind. Gov't. - Improving the child welfare system

Chirs Worden, "a family law attorney and former public defender for parents in CHINS cases before the Marion County Juvenile Court," has a "My View" column in the Indianapolis Star today. Here are some quotes:

Tim Evans' June 14 story about the tragic death of Jalen Blake is a clarion call for improving Indiana's child welfare system. But sadly, Jalen's story is nothing new. Each new death generates a wave of outrage that ultimately dwindles while achieving little substantive change. Will you let it happen again?

All of us can do three things right now to improve the child welfare system.

• Contact your legislators and urge them to vote for a special session budget that fully funds guardian ad litem (GAL) and court-appointed special advocate (CASA) programs now. * * *

• Donate your time by serving as a GAL/CASA. Organizations like Child Advocates in Marion County have in-house supervisors, but they need community volunteers to perform the legwork. * * *

• When you talk with your legislators, ask them to support the creation of a real ombudsman for the Indiana Department of Child Services. The ombudsman's job would be to investigate politically sensitive cases like that of Jalen Blake to ensure that any DCS misconduct or nonfeasance, if any, is rooted out. Respectfully, this investigative function will never be fulfilled adequately without true independence for any ombudsman office we create.

While I applaud state Rep. Charlie Brown for soldiering on this fight while others stood silent, the bill he introduced during the regular session permitted the governor to appoint and remove the ombudsman at his pleasure. Subsequently, in changes proposed by DCS, the ombudsman would serve under the DCS commissioner.

True independence requires that an ombudsman be appointed by a commission composed of the governor and legislative leaders. An ombudsman should have an independent budget and subpoena authority. The ombudsman's salary should not be subject to change during his or her term, which should be four years. Finally, the ombudsman should not be removable during his term except for misconduct. Only with true institutional independence can the ombudsman serve the best interests of children as his or her sole master.

The Star's lead editorial today urges:
Let's insist that our leaders, from the governor down to his appointees within DCS, honestly examine how and why the system failed, not just this time but also so many times before.

Let's pressure state lawmakers to set up an independent ombudsman to provide real accountability over DCS. Yes, creation of a new office will divert money at a time when resources are incredibly tight. But the price is minimal, especially when weighed against the incalculable costs of children suffering from unimaginable abuse and neglect.

Let's vow also to not leave the job of safeguarding children merely to the government. It's a task that requires many skilled hands and open hearts. Good foster parents able to nurture wounded children are always in demand. Adoptive parents able to provide a safe and loving family are precious but too few. Dedicated volunteers who stand as guardian ad litems or court-appointed advocates can help blaze a path through a legal thicket that often leaves children's best interests in the brambles.

Sometimes the complex task of guarding children in distress simply requires the work of good neighbors, who take the time to meet families in their neighborhood, who help overwhelmed parents cope with demands large or small, and who react when things appear amiss.

It's too late for Jalen. Too late for TaJanay. For Mason. For Donnie. For Kaitlyn. For Travis. For Kimberly. For Destiny. For Kalab. For Christine. For Miyanna.

But there's still time, still hope, for thousands of other children in Indiana who live at risk of abuse, neglect and even death.

They are our children, and every elected leader, every state worker, every Hoosier must not relent in the drive to secure their safety.

Posted by Marcia Oddi on Sunday, June 21, 2009
Posted to Indiana Government

Ind. Gov't. - "Attorneys dodging Porter County RDA battle"

Bob Kasarda reports today in the NWI Times:

Dan Whitten said political pressure has made it tough for him and the other members of the Porter County Council to find a qualified law firm willing to represent them in their attempt to pull out of the Northwest Indiana Regional Development Authority.

Two of the three Indianapolis-based firms that initially showed interest later balked, saying they were warned by either state or local officials against taking the county's side in the hotly disputed case, he said.

One of those firms was Bose McKinney & Evans, which backed out after being contacted by Hammond Mayor Thomas McDermott Jr., Whitten said.

McDermott said he did ask Bose McKinney & Evans to drop Porter County as a client in the case because the firm is an affiliate of Bose Public Affairs Group, which has served the past four or five years as a lobbyist for Hammond. * * *

Whitten said the county will soon ask a judge to decide if a member can walk away from RDA. He down played predictions by some that the county will rack up huge legal costs in the battle.

"We're not talking about the trial of the century here," he said.

Posted by Marcia Oddi on Sunday, June 21, 2009
Posted to Indiana Government

Ind. Gov't. - "Troubled database delays aid to victims"

Jeff Wiehe reports in the Fort Wayne Journal Gazette today:

Some victims who’ve applied for money from the state’s Violent Crime Victim Compensation Fund have been waiting more than three years to find out whether they’ll be paid, underscoring a nearly decade-long problem that has plagued the agency responsible for the fund.

A recent State Board of Accounts audit of the Indiana Criminal Justice Institute showed claims from victims of violent crime for money dating to January 2006 had not been addressed.

T. Neil Moore, the institute’s executive director, said the backlog of claims is the result of a faulty database that officials hope will be fixed either late this summer or early in the fall. The institute – which has a history of lagging behind on payments out of the fund – has been playing catch-up and getting money to eligible people who made claims before 2006, Moore said.

“The database is a big issue,” said Moore, who was Fort Wayne police chief from 1988 to 1997. “I will not be satisfied until a correction of the fund is fully implemented.”

Created in 1978, the fund was designed to keep victims without health insurance, sick leave or life insurance from bearing the brunt of medical or burial costs. The institute is payer of last resort for victims of violent crimes.

While part of the fund is set up for such victims, part also pays for treatment of victims of sex crimes and helps keep places like the Fort Wayne Sexual Assault Treatment Center operating.

The institute had more than $1.4 million in funds available to pay approved victims of violent crime as of Feb. 28, according to the Board of Accounts audit, which was released last month and covered financial activity from June 2006 to Jan. 31, 2009.

A previous Board of Accounts audit three years ago showed the institute had claims from victims of violent crimes dating to 2001 that had not yet been approved for payments.

That audit also found no new claims for victims of violent crimes had been entered into the institute’s database as of June 2006 and eligible claims for sex-related crimes had not been approved dating to 2005. * * *

In 2006, The Journal Gazette reported the institute’s lack of staff and money, high turnover, bad computer system and confusion about what money actually feeds into the fund led to years of disarray. The agency began seeking to settle some claims by paying out about 70 cents on the dollar.

According to state law, the fund is fueled by government grants and a percentage of court fees, work release money, and restitution from criminal cases, and 75 percent of punitive damage awards in civil cases.
* * *

A full report on a solution for the database was presented to the institute’s board during Moore’s first meeting as executive director. Although that report was well received, Moore said the board asked him to find a cheaper solution, causing a delay in fixing the problem.

Moore said it’s unclear how long it would take a claim to be processed if the database was working. The Victim Compensation Unit, a four-person division in the institute that handles claims for the fund, must go through each claim to determine whether an individual is eligible.

Money from the fund has been paid out for claims of victims of violent crime each year, but those claims were made before 2006. So far this year, Moore said, $20,000 has been paid out of the fund for such victims, as opposed to $1.2 million last year.

“That clearly signals to us we have to get moving, we have to get this fixed,” he said.

Some victims’ advocates in the state have been frustrated by the institute’s tardiness. Advocates usually only show a victim how to apply for money and rarely hear back from victims, who do apply, according to several officials from area victims’ assistance programs.

“What I do, I still refer (victims) to the fund if I think it’s appropriate,” said Karen Carty, the Adams County Victims Advocate. “I just warn them, they’re the payer of last resort, and they haven’t paid in a long time. I don’t want them to get their hopes up.”

I went to the Indiana Criminal Justice Institute website and this page for the Victim Compensation Division. The application is here. Unfortunately, it can not be filled out online.

Here is the most recent State Board of Accounts audit - see p. 6. Here is the earlier audit, see pp. 5-6 (PDF numbers).

Posted by Marcia Oddi on Sunday, June 21, 2009
Posted to Indiana Government

Ind. Law - "Loan paperwork discovered in Mishawaka shopping center trash"

From the South Bend Tribune, this story by Jim Meenan:

MISHAWAKA — The attorney general's office is investigating how at least 80 files of personal loan-application information ended up in a Dumpster behind Town & Country Shopping Centre last week.

The Tribune retrieved the files after a man looking for a box discovered them and alerted a reporter.

When David Heatherly reached into the garbage receptacle behind a former loan office, he could not believe what he saw.

There, right before his eyes, were files of loan applications, complete with names, Social Security numbers and even bank account numbers. Some files were thin, about 10 pages, others an inch or two thick.

Tax returns, copies of checks, credit reports, good-faith estimates, signed disclosure notices, certificates of survey — all were among the files.

None of it was cut, shredded or blacked out. Rather, there lay complete folders with all sorts of personal information, staring him in the face.

"What if it was my records?" wondered Heatherly, a Mishawaka resident. "How would I feel?"

They are now in the hands of the Indiana attorney general's office.

To leave unshredded documents such as that in a trash receptacle is against the law, said Bryan Corbin, public information officer for the attorney general.

"A person who disposes of the unencrypted, unredacted personal information of a customer without shredding, incinerating, mutilating, erasing or otherwise rendering the information illegible or unusable commits a Class C infraction," he said, quoting from a 2006 statute from House Bill 1101.

If more than 100 customer files are left or the person is a repeat offender, it becomes a class A infraction, he added.

That was the 2006 identity law, and a person and/or company would receive a ticket for disposing of such records in that fashion. That would be prosecuted by the county prosecutor.

It also required companies that have a security breach to notify their affected customers by e-mail or mail, phone or fax without unreasonable delay, Corbin said. If more than 500,000 are affected, the database owner may elect to make disclosure on its Web site or report to the media.

The punishment would be a ticket for a fine for up to $500 for a Class C infraction or $10,000 for a Class A infraction or possibly a civil action resulting in a fine of up to $150,000.

A newer version of the law takes effect July 1, and it expands upon and amplifies the old law, Corbin said. "It closes loopholes and fills in missing pieces," he said. [ILB - that would be HB 1121 from 2009]

"It enhances personal information security," Corbin said. "The business will be required to implement and maintain reasonable security procedures for documents, records and electronic devices with customers' personal information."

Corbin admits that persuading local police to go after such criminals can be a question of resources and understanding the law. * * *

The attorney general's office now has a team that investigates incidents like the files being left in the receptacle in Mishawaka.

The Identity Theft Unit of the Indiana attorney general's office was created in January 2008. * * *

Corbin urges people who have been wronged in such fashion to contact the attorney general's office.

"They could sue, but they would probably be better off to contact the attorney general's office," Corbin said. "It can file suit on behalf of all the consumers affected. As the attorney general's office, we are the advocate of consumers.

"It is a much more powerful and effective way than hiring your own lawyer and pursuing it on your own vs. the state pursuing it on behalf of all the consumers and using greater resources," Corbin said.

Part of the problem, Corbin says, is that people are still learning how to determine when they have either been victims or seen wrongdoing in the identity theft realm.

The new law has provisions in it to inform the public how to spot identity theft and how to recover if they have been a victim, he said.

Readers may recall stories earlier this year headed "Goshen lawyer's confidential files found in trash."

Posted by Marcia Oddi on Sunday, June 21, 2009
Posted to Indiana Law

Ind. Law - "Jeffersonville Attorney Larry Wilder apologizes for actions" [Updated]

Updating this ILB entry from June 18th, Matt Thacker reported yesterday in the Jeffersonville News & Tribune:

Jeffersonville attorney Larry Wilder is apologizing after police found him asleep in a neighbor’s trash can Wednesday morning.

“I take responsibility for my conduct,” Wilder said Friday. “I’ve made a mistake. I’ve embarrassed myself. I’ve embarrassed my family, and I’ve embarrassed my clients.”

Wilder said a client called on Tuesday and invited him to go to Jeff Ruby’s restaurant in Louisville because a member of his firm had passed a brokerage exam and wanted to celebrate. Wilder said he was picked up and dropped off in a limousine, but says he does not remember having more than three or four drinks.

“I can’t tell you what happened. I wish I could,” he said, explaining that he cannot remember anything after 11:30 p.m. Tuesday.

He said the next thing he remembers after being at the restaurant is Jeffersonville Police Department Officer Scott Oliver getting him out of the trash can and walking him home. His neighbor had called 911 and reported a man in his trash can.

JPD Chief Tim Deeringer said earlier this week Wilder was not charged with a crime and that he cooperated with police.

“Anybody that knows me, if you ask them, I’m not a drinker,” Wilder said.

Wilder said it is time to move forward from the incident, but fired back at those critical of his actions.

“I think that those individuals who have chosen to revel in my embarrassment are certainly satisfied with what they’ve achieved, so they should be pleased,” Wilder said.

According to media reports, Deeringer has said that an officer took photos with his cell phone of Wilder in the trash can. Those pictures were sent to the media by anonymous sources. Deeringer could not be reached for comment Friday.

In a second, longer story, David A. Mann and Matt Thacker report on why the story "went viral" -- i.e. attracted both local and national attention. The story ends:
For his part, Wilder himself said it’s time to put the story to rest.

“Those folks who think they gained some piece of enjoyment from this, I hope they’ve enjoyed,” Wilder said.

“I think that those individuals who have chosen to revel in my embarrassment are certainly satisfied with what they’ve achieved, so they should be happy with what they’ve achieved.

“I accept my responsibility for being less than smart for what I did.”

[Updated] Mayor apologizes to Wilder's family: A story from Matt Thacker dated today reports:
Jeffersonville Mayor Tom Galligan on Sunday apologized to Larry Wilder’s family for pictures taken of the city council’s attorney passed out in a trash can Wednesday morning.

Galligan said it is still under investigation who took and distributed the photographs, but Jeffersonville Police Chief Tim Deeringer confirmed they were taken by a camera issued by the police department.

“When someone becomes a police officer in the city of Jeffersonville, they take an oath to protect and serve the people of this city,” Galligan said at a press conference on Sunday afternoon. “Earlier this week, one or two officers ignored that oath and allowed their personal or political motivations to interfere with their work.” * * *

Galligan said he called the press conference because several citizens approached him with concerns that a similar situation could happen to them if police officers wanted to embarrass them.

He said police officers should treat everyone with “dignity and professionalism” and called the unknown officer who took the photos a “renegade.” * * *

City Council President Connie Sellers, who attended the press conference, said the actions of a couple of police officers reflects poorly on the department. She would not comment on whether Wilder could be removed as the council’s attorney, saying it would be discussed by the council as a whole in executive session on Wednesday at 6 p.m. at City Hall.

Sellers said she believes the story would not have gained so much attention if not for the leaked photographs.

“I think it’s a bigger story with the pictures,” she said. “I think the pictures are what make the story.”

Posted by Marcia Oddi on Sunday, June 21, 2009
Posted to Indiana Law

Saturday, June 20, 2009

Ind. Decisions - What Constitutes "Practicing Law"?

The Supreme Court on June 19th* posted a disciplinary order file-stamped and signed April 30th: In the Matter of Douglas W. Patterson. The Court fines Patterson $500 for practicing law after he was suspended for three years from such practice. From the opinion:

This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law, see Miller v. Vance, 463 N.E.2d 250, 251 (Ind. 1984), but it is clear the core element of practicing law is the giving of legal advice to a client. See State ex rel. Indiana State Bar Ass'n v. Northouse, 848 N.E.2d 668, 672 (Ind. 2006); State ex rel. Disciplinary Comm'n v. Owen, 486 N.E.2d 1012, 1013 (Ind. 1986). The practice of law includes making it one's business to act for others in legal formalities, negotiations, or proceedings. See Matter of Mittower, 693 N.E.2d 555, 558 (Ind. 1998). In Miller v. Vance, this Court concluded that lay employees of banks were not engaged in the practice of law when performing the routine service of filling in information on standard real estate mortgage forms. See 463 N.E.2d at 252. The Court, however, cautioned that a non-attorney "may not give advice or opinions as to the legal effects of the instruments he prepares or the legal rights of the parties." Id. at 253.

At least some of the activities Respondent admits he undertook during his suspension constitute the practice of law. The Proposal was not a routine transaction. Respondent's reviewing the Proposal to ensure accuracy with respect to the Owners' exemption rights, ensuring the Proposal's description of the bankruptcy process was accurate, and advising the Owners that the Proposal offered unsecured creditors more than they would receive if the Owners filed for bankruptcy require detailed knowledge of state exemption law and federal bankruptcy law. Thus, these actions constitute the practice of law under the circumstances of this case.

* The Court appears to have had some "glitch" in posting recent Orders to the website. This follows on a glitch about this same time last year in transmitting cases to the COA judges after being fully briefed.

Posted by Marcia Oddi on Saturday, June 20, 2009
Posted to Ind. Sup.Ct. Decisions

Friday, June 19, 2009

Courts - "In-Chambers Opinions: A Footnote to the Chrysler Case"

Tony Mauro has posted a really interesting item this afternoon in The Blog of Legal Times on the obscure-to-most world of Supreme Court "in chambers" opinions. A quote:

You'll recall that several challenges to the sale, brought by consumer groups and pension funds that claimed they would be harmed by the sale of Chrysler to Fiat and others, went before Justice Ruth Bader Ginsburg in her role as circuit justice. In that role, which we explored in this article this week, she referred the stay applications to the full court. After a few suspenseful days of consideration, the Court issued an unsigned per curiam opinion denying the stay and explaining why.

The opinion quoted from a recent and never-before-cited precedent that was no doubt unfamiliar to virtually all Court-watchers: Conkright v. Frommert,. Why is it so obscure? It was written by Justice Ginsburg in April as an "in-chambers" opinion, a sort of one-justice ruling that is rare and hard to categorize -- so much so that until 40 years ago, they were not included in the U.S. Reports. Ginsburg's in-chamber opinion in April was the first written by any justice in two years.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Courts in general

Ind. Gov't - Senate working on bill to keep state gov't running even without a budget [Updated]

So reports the AP this afternoon, in a brief story that begins:

The Indiana Senate is working on a proposal that would keep state government running even if lawmakers can't agree on a new budget before the current one expires June 30.
Here it is, SB 1.

[Updated] Deanna Martin of the AP has a more comprehensive story here in the South Bend Tribune.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Indiana Government

Ind. Courts - "Wells Fargo sues Lauth executives, wives"

Jeff Swiatek has a report in the Indianapolis Star that begins:

Wells Fargo Bank has sued eight principals of Carmel developer Lauth Group and four of their wives, alleging the executives illegally transferred "a significant portion of their assets" to the spouses or family foundations before loans they had personally guaranteed with the bank went into default.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In James Martin v. State of Indiana , a 7-page opinion, Judge Barnes concludes:

Here, there was testimony establishing that Martin created unreasonable noise in the work release facility for at least four virtually continuous hours. Employees at the facility clearly were disturbed by this conduct, which it is reasonable to infer went well beyond the normal sounds one would hear in such a facility. Major Dickerson could hear Martin's tirade at his desk forty yards away from the holding cell, which had a solid steel door with a glass window. Major Dickerson and one other employee had to interrupt their regular duties to address Martin's situation. Clearly, even if Martin's speech was “political” his disturbance was more than a mere fleeting annoyance and it interfered with the duties of the facility's employees. This was sufficient evidence to establish that Martin abused his free speech rights under the Indiana Constitution. Even if one is engaging in protected political speech, this “does not obviate one's responsibility to act in a civilly responsible manner.” Blackman, 868 N.E.2d at 588. Martin did not act in such a manner.

Conclusion. There is sufficient evidence to support Martin's conviction for disorderly conduct, and that conviction does not violate Article 1, Section 9 of the Indiana Constitution. We affirm.

James Holsclaw v. State of Indiana - "By pleading guilty, Holsclaw gave up his right to challenge his conviction on direct appeal. Pursuant to the terms of his written plea agreement, Holsclaw gave up his right to challenge his sentence on direct appeal. We affirm."

In Donna P. Masotto v. State of Indiana, a 7-page opinion, Judge Robb writes:

Donna Masotto appeals her conviction, following a bench trial, of battery on a law enforcement officer, a Class A misdemeanor. For our review, Masotto raises a single issue, whether sufficient evidence supports her conviction. Concluding the evidence is sufficient, we affirm.

Officer Calloway returned to the living room to attempt to get Masotto’s identification from Vasquez. At this point, Masotto came out of her room, completely naked, and walked toward the officers cursing and telling them to get out of the apartment. At that point, the officer-in-charge decided the officers should leave the apartment and return the next day to issue the citation. As the three officers walked out the front door, Masotto pushed Officer Mathewson, who was last in line, in the back. Officer Mathewson then felt the door hit him on the heel. All three of the officers then returned to the apartment and subdued and arrested Masotto.

On March 31, 2008, the State charged Masotto with battery on a law enforcement officer, a Class A misdemeanor, and disorderly conduct, a Class B misdemeanor. The trial court conducted a bench trial on November 5, 2008, after which it convicted Masotto of battery on a law enforcement officer, but acquitted her of disorderly conduct. The trial court sentenced Masotto to 365 days with 355 suspended to probation and the remaining ten days fulfilled by time served with good time credit. Masotto now appeals. * * *

Even accepting Masotto’s argument that the officers acted unlawfully when they entered her apartment, this does not excuse her actions. The officers did not attempt a forceful entry; they were invited in by Vasquez. In addition, Masotto was not resisting the officer’s entry or her arrest; her actions can most generously be characterized as assisting their departure. Such a parting shot falls squarely within the boundaries of the conduct the battery on a law enforcement officer statute seeks to prevent. Masotto battered Officer Mathewson while he was engaged in his official duty. As a result, the evidence supports her conviction.

NFP civil opinions today (2):

The Term. of the Parent-Child Rel. of A.D. and I.M.; and J.D. and R.M. (NFP)

Carolyn Lange v. Sisters of St. Francis Health Services, Inc. d/b/a St. Clare Medical Center (NFP) - "According to Sharp, Slagle told her 'they had only recently (within approximately the past 10 days) received a copy of the Order, but they only received that copy after noticing on www.doxpop.com that a ruling had been issued.” * * *

"According to our Supreme Court, Trial Rule 72(E) 'plainly states that only if the CCS [Clerk's Chronological Case Summary] does not contain evidence that a copy of the court's entry was sent to each party may a party claiming not to have received such notice petition the trial court for an extension of time to initiate an appeal.' Collins, 644 N.E.2d at 118 (emphasis added)."

For more on Lange, see Doug Masson's comments here, at Masson's Blog.

NFP criminal opinions today (2):

State of Indiana v. Jerry L. Taylor (NFP)

Kevin Payton v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Ind. court reinstates student's convictions"

The Indiana Supreme Court's decision Thursday in the case of Christopher Bailey v. State of Indiana (ILB summary here) is the subject of a brief AP story today. Some quotes:

The Indiana Supreme Court has reinstated convictions of battery and disorderly conduct against an Indianapolis high school student who confronted the assistant principal and dean of students in the school cafeteria.

The unanimous decision Thursday by the Supreme Court reversed a ruling last year by the Indiana Court of Appeals.

The Supreme Court's ruling said evidence showed Christopher Bailey was guilty in the 2007 confrontation at Perry Meridian High School that began when an assistant principal, who was monitoring breakfast service in the cafeteria, asked Bailey to pull up his pants. He refused and then pushed through her extended arm as she tried to direct him toward the dean's office.

Bailey was convicted in a Marion County bench trial and spent eight days in jail. The rest of his 180-day sentence was suspended to probation.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Ind. Sup.Ct. Decisions

Environment - Purdue's awaited CAFO study may be disappointment to all

Justin L. Mack of the Lafayette Journal Courier has this story today, headed "Results of Purdue CAFO study mixed." Some quotes:

The two-year study, funded by Purdue Extension and the Purdue College of Agriculture, focused on swine and dairy CAFOs in Benton, Cass, Huntington, Jasper, Jay, Randolph, Wabash and Wells counties.

Researchers interviewed CAFO operators and county officials county to gauge attitudes towards CAFOs. They also analyzed tax documents and environmental records to see how these operations impacted local governments.

Ayres said overall results were mixed.

"It was very difficult to gauge attitudes on odor, runoff, water quality, property value and relationship and trust," she said. "We hope to study the human impact of CAFOs further if resources become available."

According to the study, about a third of the CAFO operators within the eight counties studied were interviewed. * * *

Benton County resident Joe Hiscox said he doesn't agree with the study's results.

"I live near two proposed CAFOs and I have been fighting against them for nearly two years," he said. "I think the whole presentation was pretty vague. They had a lot of information, but they failed to answer a lot of questions and they didn't interview a single neighbor of a CAFO."

The study itself does not appear to be avaiable yet at the Purdue CAFO site.

Here is a second story from the Journal Courier, apparently written prior to the report's release.

Here is a copy
of the Purdue press release.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Environment

Law - "Amazon Threatens Cuts Over State Taxes "

Geoffrey A. Fowler reports today in the Wall Street Journal - here are some quotes:

Cash-strapped states trying to force retailers to collect taxes on online sales are spurring efforts by Internet retailer Amazon.com Inc. to avoid being swept under the proposed laws.

North Carolina is close to passing a law that would force online retailers to collect the state's 4.5% sales tax from marketing affiliates, people who get a sales commission from online customer referrals. Amazon, of Seattle, Wash., told its North Carolina marketing affiliates on Wednesday that it would stop doing business with them by July 1 if the law takes effect. Cutting the affiliates would enable Amazon to avoid collecting tax on sales in the state.

"We believe the way North Carolina is going about collecting the sales tax is unconstitutional," said Amazon spokeswoman Patty Smith. "It isn't appropriate for us to have to comply with an unconstitutional burden." * * *

New York passed an Internet sales tax law last year, which Amazon challenged in court but lost. While the retailer appeals that ruling, it is collecting taxes from New York customers. States including Maryland, Minnesota, and Tennessee have considered then scrapped similar proposals.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to General Law Related

Ind. Decisions - "Case closed: Appeals court rules in Nettle Creek's favor"

The 7th Circuit's May 29th opinion in the case of Lucero v. Nettle Creek School Corp. is the subject of a story today by Natalie Root of the Richmond Paladium-Item. It begins:

HAGERSTOWN, Ind. -- After years of defending itself against allegations of wrongdoing by one of its teachers, the Nettle Creek School Corporation has reached the end of a long journey.

The U.S. Court of Appeals for the Seventh Circuit, Chicago, recently upheld a 2008 decision by an Indiana U.S. District Court that found in favor of the school corporation in a lawsuit originally filed by teacher Sharon Lucero in 2005.

Lucero filed the lawsuit after she was moved from teaching honors and regular senior English to seventh-grade English for the 2004-05 school year.

The lawsuit brought 11 different claims alleging the violation of her civil rights -- allegations of sexual harassment, a hostile work environment, breach of contract, administrative retaliation, violation of the school board's Just Cause and Appeal Policy, and discrimination on the basis of sex, race, color and national origin. The allegations related to incidents that happened during the year she taught senior English and for about a year following that time.

Superintendent Joe Backmeyer said, "Obviously, we're glad that it's at an end. ... The federal court in Indianapolis granted summary judgment for us, and then (Lucero) chose to appeal it, which meant simply trying the same oral arguments over the same material, only in front of a three-panel judge in Chicago. So it just vindicates and shows that the corporation did not err."

The conflict between Lucero and her school administration began before she filed the lawsuit in 2005. She filed a similar grievance that went to arbitration and two similar discrimination charges with the Equal Employment Opportunity Commission. In addition, an unfair labor practice complaint was filed with the Indiana Education Employment Relations Board (IEERB) by the Nettle Creek Classroom Teachers Association in 2004 on behalf of Lucero. All were resolved in the favor of the school corporation.

Here is a list of earlier ILB entries on the case.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - Cases still awaiting decision in this SCOTUS term

Ten cases remain, see the list at SCOTUSBlog.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to Courts in general

Law - Most looked-up NYT word is a legal term

See the NY Times column, "Big, Fancy Words," here, written by Philip B. Corbett. I expect the #1 word on the list will not stump many lawyers, but some of the others certainly may.

Posted by Marcia Oddi on Friday, June 19, 2009
Posted to General Law Related

Thursday, June 18, 2009

Ind. Decisions - Supreme Court decides one today

In Christopher Bailey v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

Christopher Bailey, convicted of battery and disorderly conduct as the result of an early morning confrontation in his high school, has argued on appeal that there is insufficient evidence to support his convictions. The Court of Appeals agreed and reversed both convictions. We granted transfer and now affirm on both counts, concluding that the evidence demonstrates Bailey intentionally touched the assistant principal in a rude, insolent, or angry manner and also engaged in tumultuous conduct with the dean of students. * * *

I. The Evidence to Support Battery. To convict Bailey of battery, the State was required to prove he “knowingly or intentionally touche[d] another person in a rude, insolent, or angry manner.” Ind. Code § 35-42-2-1 (2008). * * *

How close Bailey was to Assistant Principal Brewer at the moment she extended her arm is a legitimate question of fact bearing on whether Bailey committed a knowing touching. Here, the testimony by the school staff and by Bailey provided the trier of fact with sufficient evidence to conclude Bailey was aware that Assistant Principal Brewer’s arm barred his way and knowingly pushed through it. We conclude the State proved a knowing touching in a rude, insolent, or angry manner.

II. The Evidence on Disorderly Conduct. To convict Bailey of disorderly conduct, the State was required to prove he recklessly, knowingly, or intentionally engaged in fighting or in tumultuous conduct. Ind. Code § 35-45-1-3(a)(1) (2008). Tumultuous conduct is defined as conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property. Ind. Code § 35-45-1-1 (2008). Bailey contends his actions do not rise to the requisite level to fulfill the statutory definition of tumultuous conduct.

There are relatively few Indiana decisions examining tumultuous conduct in the context of the sufficiency of the evidence to support a disorderly conduct conviction. * * *

It was reasonable for the trier of fact to conclude that, but for the officer’s arrival, Bailey’s conduct would have escalated. Although Bailey did not produce a weapon as B.R. did, his clinched fists and the testimony of Dean Knight (“I felt like he was ready to hit me”) were sufficient to conclude serious bodily injury was likely to result.

The trier of fact could reasonably infer that serious bodily injury would result had Officer Hunter not arrived given Bailey’s anger in approaching Dean Knight, throwing his coat and drink, his verbal tirade, and his clinched fists. The evidence was thus sufficient to convict.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Jeffersonville attorney Larry Wilder found asleep in trash can" [Updated]

David A. Mann reports this afternoon in the Jeffersonville News & Tribune in a lengthy story - here are some quotes:

Jeffersonville attorney Larry Wilder was found asleep by police in his neighbor’s overturned city garbage can Wednesday morning, after neighbors called police when they woke to find their trash strewn on the ground and a man inside the receptacle.

Jeffersonville Police Chief Tim Deeringer said Wilder was cooperative when police arrived at the home on Elk Pointe Boulevard and was able to walk back to his home — next door.

Wilder’s son and daughter, both adults, were home and able to take care of him from there, Deeringer said.

No arrest was made as a result of the incident. * * *

Wilder represents the Jeffersonville City Council and has acted as the city’s attorney on several high profile cases, including the legal wrangling regarding the city’s annexation.

He recently presented arguments before the Indiana Court of Appeals in an American Civil Liberties Union lawsuit against Jeffersonville over a ban on sex offenders in city parks.

In 2008, he was the highest paid of Jeffersonville’s six city attorneys, receiving $107,000 in tax dollars. That’s four times more than the next highest-paid city attorney.

He’s also attorney for the Greater Clark County Schools system, as well as operating his own private practice, located on Court Avenue in Jeffersonville.

Jeffersonville City Councilman Ron Grooms said the incident was “an embarrassment.”

[Updated 6/19/09] Ben Hershberg of the Louisville Courier Journal also has a story. Some quotes:
The president of the Jeffersonville City Council said she will call a special meeting next week to discuss the future of the council's lawyer, who was found Wednesday lying in a neighbor's garbage can after what he called a night of celebratory drinking.

Larry Wilder was found by the neighbor around 7 a.m. Wednesday.

"It is really embarrassing," Connie Sellers said. But she said she sees the incident as a personal mistake and doesn't think it should affect Wilder's professional relationship with the council, while others saw it differently.

Wilder apologized for any embarrassment he caused. "I apologize to my children more than anyone," he said.

Officers helped Wilder walk across the street to his house after being called by a neighbor. No charges were filed.Police Chief Tim Deeringer said his officers used their discretion in simply helping Wilder home because he was cooperative and wasn't a threat to himself or anyone else.

Conrad Embry, 80, the neighbor who called police, saw his garbage can on its side and someone lying in it when he took is dog out for a walk about 7 a.m.

"If I'd known it was Larry Wilder, I wouldn't have called the police," Embry said. He said Wilder "has been a wonderful neighbor."

In an interview Thursday, Wilder acknowledged he went out Tuesday night with a group of friends to celebrate after one of them passed a real-estate licensing exam, and that he had been drinking. After dinner in Louisville, he said, the group went to Fourth Street Live.

"I was not driving," Wilder said. "It's a private matter, made public because I am a public person."

Wilder said he was driven home in a client's limousine. He declined to identify the client. He also said he remembered little of what happened after leaving Louisville.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Indiana Courts

Ind. Courts - List posted of lawyers suspended for failing to pay registration fees or comply with CLE requirements

The Supreme Court has today made available a 27-page order, file stamped May 5th, headed: "Order of suspension of certain attorneys for failure to pay attorney registration fees and/or failure to comply with continuing legal education requirements." You may access it here.

The Order provides:

The Court finds that the attorneys listed on Exhibit A, which is attached to and expressly made a part of this order, have not complied with the Admission and Discipline Rules mentioned above, the basis or bases of their noncompliance being listed to the immediate right of each attorney's bar number. Accordingly, this Court finds that such attorneys should be and therefore ARE SUSPENDED from the practice of law in the State of Indiana.

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed and/or any reinstatement fees that must be paid for reinstatement, the Court directs that the proscription against the actual practice of law will go into effect at 11 :59 p.m. on Thursday, June 4, 2009. The delay from the date of this order to the suspension date is for the sole purpose of allowing time for copies ofthis order to be sent, received, and acted upon by the suspended attorneys. Any attorney whose name appears on Exhibit A may be reinstated by complying with the applicable reinstatement procedures and by paying any applicable penalties.

[Note: A reader points out that many on the list may have been reinstated by now. Perhaps one can check this via the Roll of Attorneys, if it is current.]

Because the document posted on the Courts site is scanned and thus not searchable, the ILB has produced a searchable version, which you may access here.

Note also that the pages of the Court's document are not numbered. You may find your county by using the search box in the ILB version; for instance "Marion County" is located at p. 11 of the PDF document. Or you may search for a specific name.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Indiana Courts

Environment - "EPA Announces Public Health Emergency in Libby, Montana"

From a press release from US EPA:

WASHINGTON – U.S. Environmental Protection Agency Administrator Lisa P. Jackson today announced the agency has determined that a public health emergency exists at the Libby asbestos site in northwest Montana. Over the past years, hundreds of asbestos-related disease cases have been documented in this small community, which covers the towns of Libby and Troy. * * *

This is the first time EPA has made a determination under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that conditions at a site constitute a public health emergency. This determination recognizes the serious impact to the public health from the contamination at Libby and underscores the need for further action and health care for area residents who have been or may be exposed to asbestos. Investigations performed by the Agency for Toxic Substance and Disease Registry have found the incidence of occurrence of asbestosis, a lung condition, in the Libby area staggeringly higher than the national average for the period from 1979-1998. EPA is working closely with the Department of Health and Human Services, which is making available a short-term grant to provide needed asbestos-related medical care to Libby and Troy residents. * * *

“This is a great day for Libby. This is a town that was poisoned by W.R. Grace, then had to wait year after year as the last administration failed to determine that public health emergency exists. But today is a new day,” said Sen. Baucus. “Today is the day that Administrator Jackson did the right thing and made this vital determination. Today is the day that Secretary Sebelius declared that people in Libby will get the health care they need. Today is the day that after years of work we were able to succeed in getting this done. Yet, we won’t stop here. We will continue to push until Libby has a clean bill of health.”

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Environment

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

For publication opinions today (1):

In Melisa L. Mathews v. State of Indiana, a 7-page opinion, Chief Judge Baker writes:

Appellant-respondent Melisa L. Mathews appeals the revocation of her probation following a fact-finding hearing at which she was not present, arguing that her right to due process under the Indiana and United States Constitutions was violated. Mathews also contends that the trial court erred in ordering Mathews to serve three years and 216 days imprisonment after revoking her probation. We affirm in part and remand with instructions that the trial court explain how it calculated Mathews’s sentence and, if necessary, recalculate the amount of time she is to serve. * * *

As a probationer in a civil probation revocation proceeding, Mathews’s due process rights are no greater than that of a criminal defendant. Applying the stricter criminal standard, we must consider whether Mathews knowingly and voluntarily waived her right to be present at the September 18, 2006, fact-finding hearing. Our Supreme Court has stated that while failure to appear in court is not dispositive of a defendant’s intent to waive her right to be present, the trial court may examine the facts and determine that a knowing and voluntary waiver has occurred and proceed in absentia. Freeman 541 N.E.2d at 535. Our Supreme Court then noted that the best evidence of a knowing and voluntary waiver is the presence of the defendant in court when the trial court scheduled the date of the hearing or trial. Lampkins, 682 N.E.2d at 1273. * * * Under these circumstances, we find that the trial court did not err in determining Mathews had knowingly and voluntarily waived her right to be present at the fact-finding hearing and proceeding in absentia. Thus, Mathews’s due process claim fails.

As for the duration of the sentence * * * It is unclear from the record how the trial court calculated Mathews’s sentence. It is also unclear from the record whether Mathews earned and received credit for completion of both her G.E.D. and alcohol rehabilitation classes while incarcerated. We remand this issue with instructions that the trial court report back to us within thirty days, explaining how it calculated Mathews’s sentence and, if necessary, recalculate the amount of time she is to serve. A hearing is not necessary and the trial court should rule on the documents in the record.

NFP civil opinions today (2):

Adriana L. VanCleave v. Robert T. VanCleave (NFP) - "These findings support the trial court’s conclusion that an award to Father of T.’s primary physical custody would be in T.’s best interests. Affirmed."

Carla Cunningham v. Review Board of Indiana Dept. of Workforce Development (NFP) - "Appellant-petitioner Carla Cunningham appeals the decision of the Indiana Unemployment Insurance Review Board (Review Board) dismissing her appeal as untimely. Finding no error, we affirm."

NFP criminal opinions today (3):

Charles Thompson v. State of Indiana (NFP)

Joshua R. Barnett v. State of Indiana (NFP)

Janna Caywood v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Three cases granted transfer June 16th

Updating yesterday's ILB entry, the ILB has received information that a fourth case was granted transfer June 16:

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Indiana Transfer Lists

Courts - SCOTUS rules defendant has no constitutional right to obtain postconviction access to the State’s evidence for DNA testing

Here is the opinion, handed down this morning, in District Attorney's Office v. Osborne.

Here is SCOTUSBlog's Lyle Denniston's initial take on the opinion - the entry is headed "Court rejects DNA access claim."

Here is an AP story by Mark Sherman that begins:

The Supreme Court said Thursday that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Courts in general

Ind. Courts - More on: Vanderburgh County judge delays Hatch Act ruling

Updating this ILB entry from Jan. 9th that included this quote from the Evansville Courier & Press:

The next move in a Vanderburgh County Republican Party lawsuit seeking to oust a newly elected Democratic officeholder is to wait.

Pending the outcome of a guiding case in Terre Haute, Ind., a local judge Thursday delayed indefinitely his ruling on whether County Commissioner Steve Melcher was ineligible to seek office last year under the Little Hatch Act.

Today Eric Bradner writes in the C&P:
In a decision expected to resolve questions about a Vanderburgh County official's election as well, the Indiana Supreme Court ruled this week that Terre Haute Mayor Duke Bennett was eligible to hold that position even though he had worked for a nonprofit agency that received federal funding before taking office.

It ended a 19-month saga over whether Bennett should be disqualified from the office under the federal Little Hatch Act, which restricts political activity of federal employees and some employees who work for agencies that receive federal funding. The state high court's decision is expected to settle a dispute over a Vanderburgh County Commissioner's election, too.

The Vanderburgh County Republican Party has argued that Steve Melcher, who was elected to the County Commissioners in November, was ineligible for the office.

Melcher is facilities director for the Community Action Program of Evansville, a nonprofit agency that runs a federally funded Head Start early childhood and health program. * * *

On Tuesday the Indiana Supreme Court ruled Bennett can keep the office even though he violated the federal law while he was a candidate. A Vanderburgh County court has delayed ruling on whether Melcher was eligible for his office until Bennett's case was decided. Circuit Judge Carl Heldt said he would revisit the county GOP's challenge to Melcher's election after that decision was delivered.

Previously, attorneys for Melcher and the Vanderburgh County Republican Party had agreed the Indiana Supreme Court decision in Bennett's case should settle the Melcher dispute as well.

In his opinion June 16th, Justice Dickson wrote:
Clearly this disqualifier is inapplicable to establish ineligibility in a post-campaign election contest. From the time Burke filed his election contest action to Bennett's anticipated assumption of the position of Mayor, it is undisputed that Bennett was no longer a candidate. From the undisputed facts, it was thus impossible for Burke to establish that Bennett "is subject to" and "would violate" the Little Hatch Act "by becoming or remaining" a candidate, the elements for disqualification under section (5)(c) of the disqualification statute, upon which Burke predicated his election contest.
Evansville had two "copy-cat" lawsuits, both filed by defeated candidates, according to this Nov. 22, 2008 ILB entry. "County Commissioners President Jeff Korb dropped his lawsuit days after filing it," according to a story quoted in this Nov. 30, 2008 ILB entry.

Here is a list of all the ILB "Little Hatch Act" entries.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: "Ex-lawyer gets 2 years in deadly DUI," may serve 11 months

Updating this ILB entry from June 3rd, the Supreme Court, in a "Published order of interim suspension upon notice of guilty finding," dated June 11th, states:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), files a "Notice of Guilty Finding and Request for Suspension," asking that Respondent [Terry J. Record] be immediately suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon careful consideration of all materials submitted, now finds that Respondent has pled guilty to operating a motor vehicle while intoxicated causing death, a class C felony.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective fifteen (15) days from the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action. [Emphasis in the original]

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "A scared juror led to a mistrial Wednesday morning in an Allen County felony murder case"

Some quotes from Rebecca S. Green's story in the Fort Wayne Journal Gazette:

Testimony went into the early evening Tuesday, with jurors leaving the Courthouse about 5:45 p.m. After the jury left the building, one of the 11 female jurors was approached by a man as she neared her car in the parking garage.

According to statements made during Wednesday’s court proceedings, the man said something to the juror about how she would sleep Tuesday night. The juror believed he might have been affiliated with Gray’s family, having seen him in the courtroom that day.

The juror took the statement as a threatening gesture, but when she came to the Courthouse on Wednesday morning for the second day of the trial, she shared what happened with fellow jurors rather than with court officials.

The jury discussed it among themselves while other court hearings were held, Allen Superior Court Judge Fran Gull said.

The conversations were discovered, and prosecutors and defense attorneys met in Gull’s chambers to discuss the situation, Gull said.

After everyone was assembled in the courtroom and the jury still sequestered in the jury room, Gull tried to bring the juror out to question her about what had happened and what she said to the other jurors.

But the juror would not enter the courtroom, telling a police officer she was afraid the man was in the gallery.

“She’s afraid,” Gull said. “And she cannot remain a juror on this case.”

Allen County Deputy Prosecutor Steve Godfrey requested a mistrial.

“The state deserves a fair trial,” Godfrey said. “So does the defense.”

Gray’s attorney, Michelle Kraus, said he was adamant the person who approached the juror was not a member of his family.

“I appreciate that,” Gull said. “But she has the perception she was threatened by the defendant’s family. I can’t remove that perception. It has become a reality to her.”

The obviously frustrated attorneys set a new trial date for mid-August, around the time Gray was to stand trial on an unrelated robbery charge.

After the hearing, while the jury was led out by armed county police officers, Gull said it might be time for a change in Allen Superior Court policy about jury trials.

While some counties, particularly smaller ones, are able to provide constant supervision for jurors, such as escorting them to lunch and keeping them together at all times, that has not been a luxury Allen County could afford in all cases, Gull said.

But, she said, the possibility for such confrontations exists on any case, no matter how small.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Trooper resigns after Facebook controversy"

Bob Segal of Indianapolis Ch. 13 Eyewitness News reports:

For more than two months, State Police have been investigating officer Chris Pestow for what he posted on Facebook. The state trooper used the Internet site to publicly brag of heavy drinking, to post photos of his banged-up police car, and to show another police officer holding a gun to his head. That was just the beginning. But Wednesday, it resulted in the end of a career for this ISP officer.

Trooper Pestow resigned Wednesday.

State Police tell 13 Investigates top commanders were prepared to announce punishment for Pestow any day. And the state trooper was likely going to be fired.

ISP Major Carlos Pettiford says Pestow was well aware of what was in store. "He had a pretty good idea, yes," Major Pettiford said. "I believe the superintendent was going to give a pretty stiff discipline. Office Pestow chose to resign instead of withstanding that particular discipline."

ISP says it confirmed what 13 Investigates discovered. The state trooper was posting on his Facebook page late at night while on duty. He faced internal charges including violating department policy, improper use of department equipment and four violations of conduct unbecoming an officer.

Still, beneath all the controversial comments and photos, State Police say it was the trooper's questionable judgement that forced them to take action. It all might have been avoided if only the officer had decided not to post all the material on the Internet.

"This is a very serious issue. (It's) very serious as you can tell officer Pestow chose to resign. If you don't want to see it on the 11:00 news, don't put it on your Facebook page, " Pettiford said.

Ealier ILB entries have involved high school students' Facebook and MySpace postings.

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Indiana Law

Ind. Courts - Two stories of county courthouse repairs

Bob Kasarda reported yesterday in the NWI Times:

VALPARAISO | It turns out the water problems at the Porter County Courthouse are not likely the result of a leaky roof after all.

It appears the problem lies with the limestone structure itself, particularly the top 3 feet, said Stephen Kromkowski, architecture division manager with the DLZ firm.

Kromkowski told the county commissioners Tuesday evening there are sections of the building where the mortar is loose or missing, and where the stone is pulling away. The limestone is also absorbing water, he said.

The commissioners responded by agreeing to have DLZ prepare the documents necessary to seek competitive bids for the repair work.

The rainwater infiltration at the courthouse is causing the most problems on the fifth floor, at the two entrances, on the balcony and porches, and in the mechanical room, Kromkowski said.

The water damage was also blamed earlier this year for contributing to an ongoing mold problem in the building, which led to the removal of wallpaper and treatment of the walls.

Tuesday's report frustrated Porter County Commissioner Bob Harper, who said millions were spent less than 15 years ago to renovate the building.

"Hancock auditor faces charges: State Police say she received $54,000 from contractor" is the headline to an Indianapolis Star story today by Bill McCleery. Some quotes:
GREENFIELD, Ind. -- The Hancock County auditor was arrested Wednesday on charges that she took more than $50,000 through an unauthorized contract with her cousin's construction company.

Linda J. Grass, who used to belong to one of the county's most prominent political families, was arrested in her office at the Hancock County Courthouse about 2 p.m. and held in the county jail. She faces felony counts of bribery, corrupt business influence, theft, conflict of interest and obstruction of justice.

Indiana State Police said Grass, a Republican elected auditor in 2006 after two terms as county clerk, allegedly "solicited money as an elected official in exchange for a government contract'' -- specifically, a contract with Franklin-based Barger Contracting for exterior repairs on the Hancock County Courthouse. * * *

As a result of her dealings with Barger Contracting, Grass allegedly "received cashier's checks from Barger payable to her totaling approximately $54,000 that she deposited in her personal checking account,'' according to a news release announcing the arrest.

State Police investigators said Barger Contracting owner James Barger is a cousin of Grass'.

Emery said the Hancock County Commissioners formally requested the investigation earlier this year "after discovering questionable claims had been submitted to them for payment between August of 2008 and December of 2008 for courthouse repairs.

"The Hancock County Commissioners began seeing claims being submitted by James Barger, doing business as Barger Contracting, for Hancock County Courthouse repairs. The commissioners believed the claims were for work they had never approved.''

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Indiana Courts

Courts - Why was it Justice Ginsburg who could decide the Indiana Chrysler appeal?

Tony Mauro of The National Law Journal has an article today headed "Circuit Assignments May Give Most High Court Justices 'Home Court' Advantage" that includes the answer to this question. Some quotes:

The last-minute challenges to the Chrysler Group LLC sale last week focused a rare spotlight on a little-known aspect of the Supreme Court's work: the justices' circuit assignments.

A throwback to the days when justices rode the circuits, federal law calls for individual justices to be assigned to the various federal circuits to handle emergency applications. Justice Ruth Bader Ginsburg received the Chrysler filings because the bankruptcy originated in the 2nd U.S. Circuit Court of Appeals, which is assigned to her. * * *

Justice John Paul Stevens handles his beloved 7th Circuit, where he was once a judge, and Chief Justice John Roberts Jr. handles both the D.C. Circuit, where he once sat, and the 4th, where he lives. (The chief justice is traditionally assigned the D.C. and 4th circuits.)

Posted by Marcia Oddi on Thursday, June 18, 2009
Posted to Courts in general

Wednesday, June 17, 2009

Environment - "Asphalt plant ordinance gets Jeffersonville City Council consideration"

David A. Mann of the Jeffersonville News & Tribune reported June 16th in a story that begins:

The Jeffersonville City Council is considering an ordinance that would regulate asphalt plants on everything from hours of operation to opacity of emissions.

The ordinance was introduced during a Monday night council meeting. The council did not act on it, opting instead to give members time to mull it over before it’s brought up for a vote.

For months, the Mac Asphalt plant has been a subject of the council’s attention, as residents from the nearby Jefferson Court neighborhood have voiced complaints about soot, odor and noise. If passed, the ordinance would be the first piece of actual legislation based on those complaints.

Jeffersonville Planning Director Jim Urban said that the plant was there legally. Even though it’s a nonconforming use of the land, it was permitted to be there by former planning Director Chester Hicks, Urban said.

The plant has added water to keep down dust. It has added a chemical to keep the smell under control. And plant officials have built a berm between it and the neighborhood.

“Anytime we’ve asked the asphalt plant to comply with an issue they have done so,” Urban said.

Pat Barrow, a Jefferson Court resident who has led opposition to the plant, disagreed with that statement, saying that noise and odor have persisted. Barrow also said she questions the integrity of the permit the plant is operating under because it never went up for a public hearing.

“The permit, to me, doesn’t hold the same validity as someone who went through the process.”

Urban believed the ordinance was “probably way above and beyond what needs to happen.”

Councilman Keith Fetz said he asked attorney Larry Wilder to make the ordinance stringent, so that the body could see how far it could go to regulate the plant.

Fetz said he expected changes before it passed.

“When putting together the ordinance, I did a lot of research across the country,” Wilder said. “What you chose to do is your collective business as a body.”

Posted by Marcia Oddi on Wednesday, June 17, 2009
Posted to Environment

Ind. Decisions - Supreme Court posts two today

In Susana Henri v. Stephen Curto, a 15-page, 5-0 opinion, Justice Dickson writes:

Presenting contentions of improper conduct of jury deliberations and insufficient evi-dence, the plaintiff challenges a jury verdict adverse to her civil damage claim for rape and in favor of the defendant's counterclaim for tortious interference with his university contract as a result of his expulsion. Having granted transfer, we affirm the trial court. * * *

The parties presented their evidence to a five-women, one-man jury, which found against Ms. Henri on her claim and in favor of Mr. Curto on his counterclaim, awarding him damages of $45,000. Ms. Henri appealed, and a divided panel of the Court of Appeals, issuing three separate opinions, reversed and remanded for a new trial because of errors during the jury's deliberations. Henri v. Curto, 891 N.E.2d 135 (Ind. Ct. App. 2008). We granted transfer.

Ms. Henri's appellate claims relate to the following: (1) whether the jury received impro-per external communications; (2) whether the trial court failed properly to assist the jury at an impasse; and (3) whether sufficient evidence supports Mr. Curto's counterclaim. Mr. Curto's re-sponse seeks appellate attorney fees.

In Indiana Department of Revenue v. Kitchin Hospitality, LLC, an 11-page, 3-2 opinion, Justice Sullivan writes:
Indiana tax law was amended in 1992 to exempt hotels from paying sales tax on “tangible personal property” purchased by hotels that guests use up or otherwise consume such as soap, shampoo, tissue paper, and plastic cups. Kitchin Hospitality, LLC, a hotel operator, contends that a 2003 amendment to the tax law had the effect of extending this exemption to its purchases of electricity, water, and gas as well. We find that the exemption does not extend to utilities be-cause it is the hotel itself, and not its guests, that uses up and consumes electricity, water, and gas * * *

We hold that the Section 35 Exemption of I.C. § 6-2.5-5-35(2) applies to items used up or otherwise consumed by guests. Because Kitchin, and not its guests, use up or otherwise con-sumed the utilities, Kitchin is not entitled to the Section 35 Exemption for the utilities used in its Indiana hotels.

Conclusion. We reverse the judgment of the Indiana Tax Court and affirm the decision of the Indiana Department of Revenue denying Kitchin exemption from sales tax under I.C. § 6-2.5-5-35.

Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with a separate opinion in which Rucker, J., concurs:

I dissent, believing that the facts and law of this case warrant our deferring to the deter-mination of the Tax Court which was created “to consolidate tax-related litigation in one court of expertise.” State v. Sproles, 672 N.E.2d 1353, 1357 (Ind. 1996).

Posted by Marcia Oddi on Wednesday, June 17, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

Eric D. Smith v. Jill Matthews and Linda Vannatta - "Eric Smith, an inmate at the New Castle Correctional Facility appeals pro se from the trial court’s order granting summary judgment in favor of Jill Matthews and judgment on the pleadings in favor of L.A. Vannatta. For our review, Smith raises two issues, which we restate as: 1) whether the trial court erred when it granted summary judgment in favor of Matthews; and 2) whether the trial court erred when it granted judgment on the pleadings in favor of Vannatta. Finding no error, we affirm.

"[E]ven accepting all of Smith’s allegations in his pleading as true, he has failed to state a claim for which 42 U.S.C. section 1983 provides a remedy. As a result, the trial court did not err when it granted judgment on the pleadings in favor of Vannatta".

Brian Ross v. State of Indiana - "Brian Ross appeals his conviction for class D felony maintaining a common nuisance and his convictions and sentences for two counts of class A felony dealing in cocaine. We affirm.

"Issues: 1. Whether the evidence was sufficient to support Ross.s convictions. 2. Whether Ross.s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B)."

James Whatley v. State of Indiana - "James Whatley appeals his conviction for murder. Whatley raises two issues, which we restate as:

"I. Whether the trial court’s admission of testimony that Whatley had been using drugs and visited Relax Inn to deliver drugs constituted fundamental error; and II. Whether the evidence is sufficient to sustain his conviction.

"We affirm."

NFP civil opinions today (6):

Eric D. Smith v. Stanley Knight, et al (NFP) - "As Smith's complaint has no arguable basis in law or fact, we find that the trial court properly dismissed it pursuant to Indiana Code section 34-58-1-2."

Gloria K. O'Shell v. Indiana State Employees Appeals Commission, et al. (NFP) - "None of O'Shell's arguments establish that SEAC had jurisdiction over her complaint, nor do they show that the final order of dismissal was contrary to law. Furthermore, O'Shell did not have a property interest in her public employment that would have entitled her to due process protections in the appeal of her unfavorable performance appraisal. Accordingly, SEAC correctly dismissed O'Shell's complaint, and the trial court properly upheld SEAC's determination. Affirmed."

James C. Ascough v. Sue Ann Ascough (NFP) - "James C. Ascough (“Husband”), appeals the trial court’s decree that dissolved his marriage to Sue Ann Ascough (“Wife”), and raises the following restated issues: I. Whether the trial court’s unequal property division was an abuse of discretion under the circumstances before it; and II. Whether the trial court’s decree was internally contradictory and incomplete and, therefore, erroneous. We vacate and remand."

P & H Motors, Inc., Vivian K. Aichele, and Frances A. Tucker v. Paula M. Dailey (NFP) "P&H Motors, Inc. (“P&H”), Vivian Aichele, and Frances Tucker (collectively, “Appellants”) appeal a September 18, 2008 judgment of partition. Appellee Paula Dailey has filed a motion for attorneys’ fees. We affirm the judgment and deny the request for attorneys’ fees.

"The parties present various issues, which we restate as follows: I. Whether Appellants’ notice of appeal was timely; II. Whether Dailey had an interest in the disputed properties that would support the partition of the properties pursuant to Indiana Code Section 32-17-4-1; III. Whether the court committed reversible error by finding that the other two-thirds owners were Aichele and Tucker, despite a quitclaim to P&H; and IV. Whether Appellants’ appeal is frivolous and/or brought in bad faith such that an award of attorneys’ fees would be appropriate."

Eric D. Smith v. J. David Donahue, et al (NFP) - "Eric D. Smith, an inmate in the Indiana Department of Correction (“DOC”), appeals the dismissal of his complaint. We affirm. * * *

"Here, Smith suggests that to pursue administrative remedies would be fruitless as prior grievances have been rejected or no remedies have been provided; therefore, the DOC would inevitably rule against him in the future. Nevertheless, that would not amount to futility. See id. Because Smith has failed to exhaust his administrative remedies or show futility, the trial court lacked subject matter jurisdiction over his complaint. Accordingly, it properly dismissed the complaint."

In Lorene Kitts v. Howard K. Kitts (NFP), a 9-page, 2-1 opinion, Judge Kirsch writes:

Lorene Kitts (“Lorene”) appeals the trial court’s division of marital property in her dissolution with Howard K. Kitts (“Howard”). Lorene raises the following restated issue: whether the trial court abused its discretion by making an equal division of the marital estate. We reverse and remand with instructions. * * *

We hold that in light of the significant income disparity between the parties that an equal division of the marital assets is neither just, nor reasonable and that the trial court abused its discretion in ordering an equal division. We remand with instructions to re-distribute the marital estate providing that Lorene is entitled to receive eighty per cent (80%) of the marital estate and Howard, twenty per cent (20%). * * *

In light of our decision to remand for a re-distribution of the marital estate, we believe that Lorene will have sufficient property to support herself rendering maintenance unnecessary.

Lorene finally argues that the trial court erred by using the coverture fraction value of Howard’s GM pension when dividing the marital estate. In the list of marital assets and their division between the parties, the trial court listed the GM pension with a value of $3,786.05. Lorene suggests that the trial court should have used $29,610.44, the present value of the accrued pension benefits as of the date of separation. Lorene argues that by using the coverture fraction value of the pension, the trial court made an unequal division of the assets. * * *

In this case, Lorene accepted the coverture fraction value of the pension at trial. Consequently, we do not find that the trial court abused its discretion in the treatment of Howard’s GM pension because Lorene invited the error.

Reversed and remanded with instructions.

NAJAM, J., concurs.
BAKER, C.J., concurs in part and dissents in part with separate opinion. [which concludes] Under these circumstances, I believe it was improper for the majority to conclude that the evidence in the record—of which there was none, including on the cost of the insurance coverage she is requesting—sufficed to find an abuse of discretion and reverse. Even more disconcerting is the majority’s decision to award Lorene more than she requested—she merely asked that Howard continue to pay for her to remain on his health insurance plan; the majority has gone several steps farther and, on no basis whatsoever that I can see, made its own calculations and ordered Howard to pay her monthly maintenance of $660 for the rest of her life. Thus, I would affirm the trial court in this—and every regard.

NFP criminal opinions today (6):

Robert Martin Baker v. State of Indiana (NFP)

Dean F. Bigelow v. State of Indiana (NFP)

Roderic Childress v. State of Indiana (NFP)

Lloyd Singleton v. State of Indiana (NFP)

Accie Smith v. State of Indiana (NFP)

Austin Knight v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 17, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Gun Rulings Open Way to Supreme Court Review"

John Schwartz of the NY Times writes today in a story that begins:

A year ago, the United States Supreme Court issued a landmark decision establishing the constitutional right of Americans to own guns. But the justices did not explain what the practical effect of that ruling would be on city and state gun laws.

Could a city still ban handguns? The justices said the District of Columbia could not, but only because it is a special federal district. The question of the constitutionality of existing city and state gun laws was left unanswered.

That left a large vacuum for the lower courts to fill. Supporters of gun rights filed a flurry of lawsuits to strike down local gun restrictions, and now federal appeals courts have begun weighing in on this divisive issue, using very different reasoning.

One court this month upheld Chicago’s ban on automatic weapons and concealed handguns, while in April a California court disagreed on the constitutional issue.

The differing opinions mean that the whole issue of city and state gun laws will probably head back to the Supreme Court for clarification, leading many legal experts to predict a further expansion of gun rights.

The 7th Circuit's opinion in the Chicago case, NRA v. City of Chicago, is summarized in this ILB entry from June 2nd. See also this ILB entry from June 3rd.

Posted by Marcia Oddi on Wednesday, June 17, 2009
Posted to Courts in general

Ind. Decisions - Three cases granted transfer June 16th

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer was been granted June 16th in three cases. Links below are to COA opinions:

Posted by Marcia Oddi on Wednesday, June 17, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - "The long and contentious battle to settle Terre Haute’s 2007 mayor’s election is over"

So reads the lede today to this story by Arthur E. Foulkes in the Terre Haute Tribune-Star. The case, of course, is Kevin D. Burke v. Duke Bennett, summaried in this ILB entry yesterday. Some quotes from the lengthy story:

The Indiana Supreme Court on Tuesday handed down a unanimous decision, affirming Duke Bennett as the elected mayor of the city. * * *

The Indiana Supreme Court heard the case of Burke v. Bennett on May 28 in the state capitol building in Indianapolis. On Tuesday, less than three weeks later, the court handed down a 5-0 ruling that agreed with a ruling made more than a year ago by Vigo County Superior Court Judge David Bolk. Bolk’s ruling stated Bennett could lawfully take office as mayor despite violating the Hatch Act while he was a candidate.

Tuesday’s high court decision, written by Justice Brent Dickson, stated that Burke’s challenge to Bennett’s candidacy under the Hatch Act came too late. According to Indiana law, Dickson wrote, a Hatch Act violation can only prevent someone from becoming a candidate for office or remaining a candidate. It does not apply to someone after an election is over since that person is no longer a candidate, the court found.

“Clearly this disqualifier is inapplicable to establish ineligibility in a post-campaign election contest,” Dickson’s six-page decision states.

After making this narrow legal point, Dickson then draws on what he calls “the long-standing respect for the right of the people to free and equal elections and the reluctance of this Court to remove from office a person duly elected by the voters.” Dickson then quotes a 1958 Indiana Supreme Court decision in which it was stated that the “will of the people in the choice of public officers may not be defeated by any merely formal or technical objections.” * * *

The Indiana Supreme Court is the third court to hear Burke v. Bennett. After Bolk’s 2007 ruling that Bennett could take office, Burke appealed that ruling to the Indiana Court of Appeals. In November, the appeals court overturned Bolk’s decision and called for a special election to settle the matter. Both Burke and Bennett appealed that ruling to the Indiana Supreme Court.

The high court’s decision apparently will be the final judicial ruling in the case. Burke said Tuesday he has no plans to appeal the ruling. The next step would have been to appeal the case to the U.S. Supreme Court.

“I’ve done all I can do,” he said, sitting on the front porch of his Collett Park neighborhood home. “I don’t see any more steps.” Burke had said earlier he would not appeal an Indiana Supreme Court ruling. “I meant what I said.”

Posted by Marcia Oddi on Wednesday, June 17, 2009
Posted to Ind. Sup.Ct. Decisions

Tuesday, June 16, 2009

Ind. Gov't. - Current Insurance Commissioner to head Indiana Utility Regulatory Commission

From a news release:

Governor Mitch Daniels today announced the appointment of Department of Insurance (DOI) Commissioner Jim Atterholt to the Indiana Utility Regulatory Commission (IURC) to fill the vacancy left by the resignation of Greg Server. Bedford native and current DOI Chief Deputy Commissioner Carol Cutter will succeed Atterholt at the department.
Note: A reader has pointed out that my headline is wrong. Jim Atterholt will join the IURC, which is chaired by David Lott Hardy.

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to Indiana Government

Ind. Decisions - Supreme Court issues four more this afternoon

In Byron K. Breaston v. State of Indiana, an 8-page, 5-0 opinion, Justice Sullivan writes:

Following unrelated criminal trials, Byron Breaston received habitual offender enhancements to his sentences. He was ordered to serve these habitual offender enhancements consecutively. Starks v. State held that it was improper for the trial court to order consecutive habitual offender enhancements at a single criminal trial. 523 N.E.2d 735, 737 (Ind. 1988). Smith v. State applied this holding to separate sentencing proceedings. 774 N.E.2d 1021, 1024 (Ind. Ct. 2 App. 2002), trans. denied. As such, it was incorrect to impose consecutive habitual offender enhancements in the present case. * * *

We reverse the trial court’s imposition of consecutive habitual offender enhancements, and remand this case to the trial court with instructions that the trial court order the habitual offender enhancement in this case to be served concurrently with the prior enhancement and to re-sentence Breaston in accordance with this opinion. No hearing is required. In all other respects, we summarily affirm the opinion of the Court of Appeals, pursuant to App. R. 58(A)(2).

In John D. Farris v. State of Indiana, a 5-page, 5-0 opinion, Justice Sullivan writes:
Breaston v. State [decided today], holds that consecutive habitual offender enhancements are improper where the enhancements arise from separate trials on unrelated charges. This case presents a somewhat easier question than Breaston: whether consecutive habitual offender enhancements are improper where the enhancements arise from separate trials on related charges. Precedent dictates that they are. Because John Farris’s counsel did not object to the imposition of consecutive habitual offender en-hancements and Farris’s sentence was improperly enhanced by 30 years, we find that Farris received ineffective assistance of counsel and is entitled to post-conviction relief.
From Tommy Pruitt v. State of Indiana, a 4-page, 4-1 Per Curiam opinion:
As discussed in our opinion, see Pruitt, 903 N.E.2d at 905, “[we] will disturb a post-conviction court’s decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” Id. (citing Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001) (quoting Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 528 U.S. 1083 (2000))). Our review of the PC court’s findings and conclusions do not lead us to an opposite conclusion than that reached by the PC court.

Pruitt’s petition for rehearing is denied.

Shepard, C.J., and Dickson, Sullivan, and Boehm, JJ., concur
Rucker, J. dissents: For the reasons set forth in my dissenting opinion in Pruitt v. State, 903 N.E.2d 899, 940 (Ind. 2009), I would grant rehearing, vacate the judgment of the post-conviction court, and remand this cause with instructions to impose a term of years.

In Term. of Parent-Child Rel. of J.M.; A.S. & A.M. v. IDCS, a 9-page, 5-0 opinion, Justice Sullivan writes:
This is the second case that we have decided in recent weeks in which we have held that the involuntary termination of the parental rights of incarcerated parents was not warranted. See R.Y. v. Ind. Dep't of Child Servs., 904 N.E.2d 1257 (Ind. April 24, 2009). The fact that we have reached such a conclusion in such close proximity is coincidence and not a reflection of any presumption as to the outcome of such cases. * * *

Our recent opinion in R.Y. v. Ind. Dep't of Child Servs. sets forth at some length the relevant constitutional and statutory framework, as well as the burden of proof and standard of appellate review, governing proceedings to terminate parental rights. 904 N.E.2d at 1259-61. We will not repeat that discussion here; the interested reader is directed to that decision.

In this case, the trial court denied the State's petition to terminate parental rights based on its conclusion that the State failed to present clear and convincing evidence that the conditions which resulted in J.M.'s removal would not be remedied or that continuation of the parent-child relationship poses a threat to J.M.'s well-being. The Court of Appeals reversed, finding the trial court's judgment to be “clearly erroneous.” In re J.M., 895 N.E.2d at 1236-37. Mother and Father contend that the Court of Appeals erred by failing to apply the correct standard of review. More specifically, they argue that the Court of Appeals (1) failed to make the determination that the trial court's findings (regarding Mother and Father's dates of release from incarceration and their ability to provide a stable and appropriate life upon release) were clearly erroneous before making its own contrary findings; and (2) failed to rely on the evidence most favorable to the trial court's judgment. * * *

We hold that [the] conclusion of the trial court is not clearly erroneous. We reach that result after examining the following four reasons that the trial court gave for concluding that there is a reasonable probability that the conditions which resulted in J.M.'s removal will be remedied and that continuation of the parent-child relationship does not pose a threat to J.M.'s well-being. * * *

There was evidence in the record to support the trial court's findings, and these findings supported the trial court's judgment denying the State's petition to terminate the parental rights of Mother and Father. The trial court's judgment was therefore not clearly erroneous. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides three, including Terre Haute mayor case and CAFO case

Kevin D. Burke v. Duke Bennett, a 6-page, 5-0 opinion, Justice Dickson writes:

Duke Bennett became the Mayor of Terre Haute, Indiana, after defeating the incumbent, Kevin Burke, in the November 6, 2007 general election. On November 19, 2007, Burke filed this action to contest the election, asserting that Bennett was ineligible. Following a bench trial, the trial court rejected Burke's challenge and declared Bennett elected as the qualified candidate who received the highest number of votes. The Court of Appeals reversed and remanded for a new election. Burke v. Bennett, 896 N.E.2d 505 (Ind. Ct. App. 2008). We granted transfer and now affirm the trial court's confirmation of Bennett's election as Mayor. * * *

The parties disagree on whether, during the pre-election campaign, the connection between Bennett's work for the Hamilton Center and its Head Start program was sufficient to subject him to the candidacy limitations of the Little Hatch Act. We need not resolve this dispute to decide this case, the outcome of which is controlled by the language of the Indiana disqualification statute. * * *

The disqualification statute provides two reasons why Burke cannot prevail in this election contest. First, as he is seeking to use the statute not to prevent Bennett's candidacy but to prevent his assumption of office, the statutory disqualifiers are to be assessed as of the time the office is to be assumed. Among its supporting findings, the trial court found: "At the time of taking mayoral office, Bennett will no longer be employed at the Hamilton Center. Thus, when he is assuming office, he will no longer be employed by the Hamilton Center and, consequently, will not be subject to the Little Hatch Act." Burke does not contest this finding. Second, when as here an election victor's Little Hatch Act involvement is being asserted to establish disqualification, the issue is not whether a successful candidate was subject to the Act or had been in violation of it when the candidate became or remained a candidate. Rather, it is whether the election winner is subject to the Act and whether he would violate it by becoming or remaining a candidate. This ground for disqualification requires proof that a person would, in the future, violate the Act by becoming or remaining a candidate. Clearly this disqualifier is inapplicable to establish ineligibility in a post-campaign election contest. From the time Burke filed his election contest action to Bennett's anticipated assumption of the position of Mayor, it is undisputed that Bennett was no longer a candidate. From the undisputed facts, it was thus impossible for Burke to establish that Bennett "is subject to" and "would violate" the Little Hatch Act "by becoming or remaining" a candidate, the elements for disqualification under section (5)(c) of the disqualification statute, upon which Burke predicated his election contest.

In Elizabeth Thomas v. Blackford County Area Board of Zoning Appeals and Oolman Dairy, LLC, a 4-page, 5-0 opinion, Justice Boehm writes:
We affirm the trial court’s conclusion that a property owner lacked standing to challenge a Board of Zoning Appeals ruling, and we address the procedural steps available to raise standing issues. * * *

This case is governed by the framework set out in Bagnall. Indiana Code section 36-7-4-1003(a) requires that a person be “aggrieved” to seek judicial review of a board of zoning appeals’s decision. * * *

Thomas’s contention that she was aggrieved hinged on her claim that the proposed CAFO would significantly impair the value of her home. * * *

The trial court evaluated this conflicting evidence and concluded that Thomas had not established that she was an “aggrieved party.” We cannot say this conclusion was clearly erroneous and therefore affirm the trial court.

In Brenda Spar v. Jin S. Cha, M.D., a 14-page, 5-0 opinion, Justice Boehm writes:
We hold that, with possible exceptions not relevant here, incurred risk is not a defense to medical malpractice based on negligence or lack of informed consent. We also hold that the plaintiff‘s consents to prior surgeries were admissible to counter her lack-of-informed-consent claim to the extent that claim was based on failure to inform her of typical risks in the procedure. We reverse and remand for a new trial.

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (7):

In Highland Springs South Homeowners Association, Inc. v. Vanessa Reinstatler, a 14-page opinion, Judge Robb writes:

Highland Springs South Homeowners Association (“HOA”) filed a complaint for injunctive relief against Vanessa Reinstatler, seeking to keep her from building an addition to her home in the Highland Springs South subdivision. HOA appeals the trial court's order dismissing its complaint with prejudice as premature. HOA also appeals the trial court's subsequent denial of its motion to amend to conform to the evidence. HOA raises several issues, of which we find the following dispositive: whether the trial court properly granted summary judgment to Reinstatler and dismissed HOA's complaint. We also address HOA's contention that the trial court erred in denying its motion to amend its complaint to conform to the evidence. Concluding that the complaint is not premature and should not have been dismissed and that the trial court abused its discretion in denying HOA's motion to amend, we reverse and remand to the trial court for further proceedings. * * *

HOA's complaint was not premature, as there is the present existence of an actual threat that Reinstatler will begin construction of a room addition in violation of the restrictive covenants. HOA's motion to amend its complaint to conform to the evidence should have been granted, as the evidence supports the amendment and Reinstatler will not be prejudiced thereby. We therefore reverse the trial court's dismissal of HOA's complaint and remand to the trial court to grant HOA's motion to amend and to proceed to the merits of HOA's complaint for injunctive relief.

In Gangloff Industries, Inc. v. Generic Financing and Leasing Corp., a 13-page opinion, Judge Robb writes:
Gangloff Industries, Inc. appeals the trial court's judgment on Generic Financing and Leasing Corp.'s complaint for immediate possession and damages filed after Gangloff took possession of a certain truck of which Generic claimed ownership. Gangloff raises six issues for our review, which we consolidate and restate as two: 1) whether the agreement between Generic and Robert Bougher was a lease or a security interest in the truck, and 2) if it was a security interest, whether the possessory lien Gangloff asserted took priority. Concluding that the agreement is a security interest and that Gangloff's possessory lien had priority, we reverse and remand.
In Saundra Smithson and Clyde Smithson v. Howard Regional Health System, an 8-page opinion, Judge Kirsch writes:
Saundra Smithson (“Saundra”) and Clyde Smithson (“Clyde”) (collectively “the Smithsons”) appeal from the trial court’s order granting summary judgment in favor of Howard Regional Health System (“Howard Regional”) in the Smithsons’ premises liability case based on negligence against Howard Regional after Saundra slipped and fell on black ice in the hospital parking lot. Of the many issues presented for our review, the following issue is dispositive: whether the trial court erred by granting summary judgment in favor of Howard Regional after finding that the Smithsons had failed to comply with the notice provisions of the Indiana Tort Claims Act (“the Act”). We reverse and remand for further proceedings. * * *

Howard Regional contends that the trial court’s order granting summary judgment in its favor was proper based on the Smithsons’ failure to comply with the notice requirements of the Act. The Smithsons argue that the trial court erred by granting summary judgment because the purposes of the notice requirements under the Act were fulfilled. In other words, Howard Regional, a governmental entity, was provided with the opportunity to investigate an incident for the purposes of making liability determinations and preparing a defense. The Smithsons also claim that Howard Regional is estopped from arguing that it is a governmental entity because of its failure to identify itself as a county hospital. However, assuming that Howard Regional is a county hospital, the Smithsons argue that they have substantially complied with the notice requirements of the Act. * * *

Here, Howard Regional knew that Saundra had fallen in the parking lot, that she had sustained personal injuries from that fall, and the nature and extent of those injuries. Additionally, Howard Regional admitted and treated Saundra for those injuries, and was aware of the Smithsons’ phone number and address. * * * Further, a Howard Regional social worker prepared a report in which she noted that Clyde “states that he expects [Howard Regional] to cover the bills associated with [Saundra’s] care [secondary] to [her] fall in the parking lot. [Howard Regional] has not agreed to accept financial responsibility.” Id. at 133. On January 3, 2006, within 180 days of Saundra’s fall, the Smithsons’ attorney sent a letter of representation to Howard Regional seeking copies of Saundra’s medical records arising from her fall. Id. at 159. On the same date, the attorney sent a letter to Howard Regional’s insurance carrier * * * Consequently, assuming that Howard Regional is a governmental entity, the notice requirements of the Act have been substantially complied with in the present case. Furthermore, notice to Howard Regional was sufficient notice to the government. The trial court therefore erred by granting summary judgment in favor of Howard Regional on the issue of compliance with the notice provisions of the Act. * * *

Because we have found that the Smithsons’ have substantially complied with the notice provisions of the Act, we remand this matter to the trial court for a determination of the remainder of the issues raised by the parties in their respective motions for summary judgment. We reverse the trial court’s entry of summary judgment in favor of Howard Regional on the issue of compliance with the notice provisions of the Act and remand for further proceedings consistent with this opinion.

In Illinois Bulk Carrier, et al. v. Robert W. Jackson, et al. , a 28-page opinion, Judge Crone writes:
Illinois Bulk Carrier, Inc. (“IBC”), and Illiana Disposal Partnership, doing business as Allied Waste Services of Northwest Indiana (“Allied Waste”) (collectively “Appellants”), bring this interlocutory appeal of the denial of their summary judgment motions on the personal injury complaint filed against them by Robert W. Jackson and Daniel Jackson, minors, by their next friends Robert D. Jackson and Margie Jackson; Suzanna R. Postma and Jolene Postma, minors, by their next friends Jeff Postma and Tina Postma; Jeff Postma; Tina Postma (collectively “Appellees”); and Kirk Shule. We reverse.

Issues: I. Whether Allied Waste and IBC have demonstrated that as a matter of law neither is liable for the negligence of Wireman Trucking & Excavating, Inc. (“Wireman”), and its employee, Allan Irvine, under the Federal Motor Carrier Safety Regulations; and II. Whether Allied Waste and IBC have demonstrated that as a matter of law neither is liable for the negligence of Wireman and its employee, Irvine, under Indiana common law. * * *

BRADFORD, J., concurs.
BROWN, J., concurs in part, dissents in part with separate opinion.

In U. S. Bank, N.A. v. Integrity Land Title Corp. - "We hold that the trial court abused its discretion in denying U.S. Bank’s motion to correct error and motion for relief from judgment as to U.S. Bank’s contract claim against Integrity but did not abuse its discretion in denying the motions as to U.S. Bank’s tort claim. Because the stricken material at issue is substantially similar to material designated on summary judgment, we decline to reach the issue of whether the trial court abused its discretion in granting Integrity’s motion to strike. Accordingly, we affirm in part, reverse in part, and remand for further proceedings. "

State of Indiana v. Robin Montgomery - "We therefore grant the petition for rehearing and affirm our earlier decision remanding this case to the trial court."

Robbie Lynn Flickner v. State of Indiana - "After due consideration of the trial court's decision, we cannot say that the six-year sentence with two and one-half years suspended to probation imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender. For the foregoing reasons, we affirm Flickner's sentence for nonsupport of a dependent child as a class C felony."

NFP civil opinions today (1):

Estate of Theresa G. Cappelleti v. George F. and Palma M. Petriella (NFP)

NFP criminal opinions today (5):

Derrick Whitson v. State of Indiana (NFP)

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

Robert Dupree White v. State of Indiana (NFP)

Donald Tyrone Shell v. State of Indiana (NFP)

Eugene Cardwell v. State of Indiana (NFP)

Ebony Bell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - "Federal Judge slams Bose McKinney's actions in suit, orders it to pay half plaintiff's legal costs"

A lengthy Indianapolis Star story today by Jeff Swiatek begins:

A federal judge has sanctioned the prominent Indianapolis law firm of Bose McKinney Evans for failing to promptly disclose documents while representing an Evansville paint company sued for contaminating a neighbor's property.

Larry J. McKinney, a judge in U.S. District Court in Indianapolis, ruled that the law firm must pay half the neighbor's legal costs. He criticized the firm for having "failed in its responsibility to be candid with the court by making statements in court filings that it knew were misrepresentations at best and false at worst."

This June 10th ILB entry quotes from the 66-page order issued by Judge McKinney on June 5th.

See also this June 11th ILB entry.

The ABA Journal has a second story here, dated June 15th.

Greg Andrews of the Indiana Business Journal had a lengthy story Saturday.

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to Ind Fed D.Ct. Decisions | Indiana Courts | Indiana Law

Law - "Virtual Contacts and Personal Jurisdiction"

Robert S. Friedman and Mark E. McGrath write today in the New York Law Journal in an article that begins:

Since the 2007 New York Court of Appeals decision in Fischbarg v. Doucet courts in New York and around the country have continued to grapple with personal jurisdiction issues involving electronic contacts such as Web sites, e-mails and instant messages (collectively, e-contacts). Our articles in 2007 and 2008 discussed many of the decisions of interest, and we provide an update here in this evolving area.

In addition, this article analyzes how courts are handling jurisdictional questions attendant to the next generation of technology, such as forms of "cloud computing," including virtual data rooms and social networks. As these technologies continue to develop and opportunities arise to increase revenue, companies risk having to defend themselves in far-off jurisdictions never before contemplated.

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to General Law Related

Ind. Gov't. - "Bill seeks audit of FSSA modernization" [Updated]

Jake Grovum reports today in the Indianapolis Star:

It's been two years since Indiana began an ambitious plan to modernize the Family and Social Services Administration, and a bill introduced in the legislative special session aims to tackle the many problems some say stem from the overhaul.

Critics of the $1.16 billion modernization drive say it has created a digital bureaucracy, filled with difficulty and frustration for some of the most vulnerable Hoosiers. These people have been stripped of personal caseworkers, been forced to deal with long response times and even seen benefits dropped amid increasing complications as a result of the shift, critics say.

Add the current financial crisis to the mix and it's a recipe for disaster, said Rep. Gail Riecken, D-Evansville. Riecken has authored a bill seeking an audit of the program in an attempt to fix the problems reported to her.

"When folks are asking for food stamps, they need them today, not three months from now," Riecken said. "You're seeing people's benefits stopped for a few months. * * *

A hearing on the bill is scheduled for this afternoon before the House Ways and Means Committee.

The bill is HB 1003, one of three bills intorduced in the special session.

See also this ILB entry from April 3rd.

[Updated 6/18/09] From today's Indianapolis Star:

A measure to audit the partial privatization of many data collection and management functions for state welfare programs likely won't become law during the legislature's special session.

The bill's author, Rep. Gail Riecken, D-Evansville, said Wednesday that she had withdrawn the bill because lawmakers were busy working to draft a state budget. She said she still would try to have its provisions included in the budget. But Riecken said that with Gov. Mitch Daniels' opposition to the bill, it's unlikely she would succeed.

In that light, Riecken said she will push to establish a legislative committee to look at what's happening in the Family and Social Services Administration.

Posted by Marcia Oddi on Tuesday, June 16, 2009
Posted to Indiana Government

Monday, June 15, 2009

Ind. Courts - Justice Dept. settles lawsuit against Harrison County sheriff alleging sex discrimination

From a press release today issued by the Justice Department:

“Women in the workplace have the right to earn a living without being subjected to sexual harassment, especially from their supervisors,” said Loretta King, Acting Assistant Attorney General for the Civil Rights Division. “The Civil Rights Division is pleased that the sheriff of Harrison County will adopt a policy against sex discrimination, provide training to its employees as to the requirements of Title VII, and provide Ms. Decker and Ms. Graham with the relief to which they are entitled.”
More from the release:
WASHINGTON – The Justice Department announced today that it has entered into a consent decree with Harrison County, Ind., Sheriff George Michael Deatrick, in his official capacity, the Harrison County Board of Commissioners and the Harrison County Council that, if approved by the U.S. District Court for the Southern District of Indiana, will resolve the Department’s complaint filed in March 2009 under Title VII of the Civil Rights Act of 1964, as amended.

Title VII prohibits discrimination in the workplace on the basis of race, color, sex, national origin and religion, as well as retaliation for filing a charge of discrimination.

The complaint alleged that Sheriff Deatrick subjected Deana Decker and Melissa Graham, former employees of the Sheriff’s Department, to sexual harassment by touching them in a sexual and offensive manner and directing sexually-charged comments to them in violation of Title VII. After Decker and Graham filed discrimination charges against Deatrick with the Equal Employment Opportunity Commission, the complaint alleged that the sheriff retaliated against them by brandishing a gun and staring at them in order to intimidate and frighten them.

Under the terms of the consent decree, the sheriff, the council and the commissioners must pay $375,000 to Decker and Graham as part of the settlement reached with the Department and a separate lawsuit with the former employees. The consent decree also requires the sheriff to retain an Equal Employment Opportunity (EEO) trainer to conduct annual mandatory courses focused on preventing sex discrimination and retaliation and to appoint an EEO monitor to evaluate the practices of the sheriff in preventing sex discrimination and retaliation, investigate complaints concerning sex discrimination and retaliation, and report on the findings of the investigations to the Department of Justice.

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Ind Fed D.Ct. Decisions | Indiana Courts

Courts - More on effort to abolish "Missouri plan" in Tennessee

On May 27, 2007, the ILB had this entry, headed "Tennessee's 'Missouri plan' for judicial selection expires."

Today an unsigned opinion piece in the WSJ begins:

Tennessee is moving the dial on how it chooses judges, changing parts of the so-called merit selection method that has governed the state for decades. Under a new plan approved by the legislature on Friday, the lawyers who have dominated judicial selection are getting put back in their place.

The extraordinary influence of the bar is a hallmark of the judicial selection method used by more than two dozen states. Sometimes called the Missouri Plan for its state of origin, a slate of potential nominees is chosen by a judicial nominating commission and presented to the Governor for a pick. Designed to reduce the pull of politics on judges, the plan instead gave power to lawyers who sat on the commissions and pushed state courts to the left.

Tennessee's "Missouri plan" looks to have been quite different from Indiana's. For instance, in Indiana interviews of applications by the Judicial Nominating Commission are open to the public, they are not conducted behind closed doors.

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Courts in general

Courts - "Is Sonia Sotomayor Mean?" An ILB suggestion

Nina Totenberg of National Public Radio had a nearly 8-minute story this morning headed "Is Sonia Sotomayor Mean?" Some quotes:

Judge Guido Calabresi, former Yale Law School dean and Sotomayor's mentor, now says that when Sotomayor first joined the Court of Appeals, he began hearing rumors that she was overly aggressive, and he started keeping track, comparing the substance and tone of her questions with those of his male colleagues and his own questions.

"And I must say I found no difference at all. So I concluded that all that was going on was that there were some male lawyers who couldn't stand being questioned toughly by a woman," Calabresi says. "It was sexism in its most obvious form."

And what if such criticism came from a woman lawyer? Well, says Calabresi, women can be just as sexist as men in their expectations of how a woman judge should act.

Totenberg plays some quotes from both Sotomayor and, for comparison, Chief Justice Roberts and Justice Scalia. (These can best be appreciated by listening to the piece, rather than reading the transcript.) Totenberg concludes:
So, if Sotomayor sometimes dominates oral arguments at her court — if she is feisty, even pushy — then she would fit right in at the U.S. Supreme Court.
A suggestion to Nina from the ILB. Great report! But you might also want to listen some other Circuit Court judges, for instance, from the 7th Circuit, to see how their questioning stacks up against that of Judge Sotomayor. For instance, take a listen to this one-hour oral argument in the wine shipping case, Baude v. Heath. At the time (Feb. 25, 2008), I wrote:
Listen to the oral arguments here, but not if you are faint of heart. They are pretty eye-opening in-so-far as what it can be like to appear before a panel that includes Easterbrook and Posner.
Nina, you might conclude Judge Sotomayor would fit right in at the 7th Circuit too.

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP) [Corrected]

For publication opinions today (3):

In Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Division II, Indianapolis-Marion County, Indiana, a 14-page opinion, Judge Robb writes:

Edward Rose of Indiana, LLC (“Edward Rose”), appeals the trial court’s decision affirming the Metropolitan Board of Zoning Appeals, Division II, Indianapolis Marion County’s (the “BZA”) denial of Edward Rose’s petition for a variance. On appeal, Edward Rose raises one issue, which we restate as whether the trial court properly affirmed the BZA’s denial of Edward Rose’s petition for a variance. Concluding the trial court’s affirmation of the BZA’s denial was not improper, we affirm. We also address the trial court’s admission of supplemental evidence pursuant to Indiana Code section 36-7-4-1009. * * *

Indiana Code section 36-7-4-918.5(a) requires a petitioner to establish the following three elements to obtain a variance:

(1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community; (2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and (3) the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.

As mentioned above, the trial court concluded Edward Rose established the first two elements as a matter of law, and the BZA does not challenge this conclusion on appeal. The BZA’s concession means this appeal turns on whether Edward Rose established the third element as a matter of law. Regarding this element, it is undisputed that strict application of the zoning ordinance will result in removal of the Sign. We therefore frame this dispositive issue as whether Edward Rose proved as a matter of law that removal of the Sign will result in practical difficulties in the use of the property. * * *

To summarize, Edward Rose offered some evidence to permit a reasonable person to find that removal of the Sign will result in practical difficulties in the use of the property. On appeal from the trial court’s affirmation of the BZA’s denial, however, Edward Rose must show that no reasonable person could conclude otherwise. As the foregoing discussion indicates, the evidence was conflicting on the issue of practical difficulties, which compels a conclusion that the trial court’s affirmation of the BZA’s decision was not improper.

[The court also looked at the evidence issue and wrote on p. 10:] To summarize, we offer the foregoing discussion to clarify the proper role of a trial court when conducting certiorari review pursuant to Indiana Code section 36-7-4-1009 and to suggest some situations where supplemental evidence is and is not appropriate in conducting that review. Although we are skeptical of the trial court’s decision to admit the supplemental evidence in this case, we emphasize the BZA does not challenge that decision by way of cross-appeal. Accordingly, we proceed to determine whether, in light of the evidence presented during the BZA hearing and the supplemental evidence presented during the certiorari hearing, Edward Rose proved as a matter of law that removal of the Sign will result in practical difficulties in the use of the property.

In Fabian Gomez v. State of Indiana , a 9-page opinion, Judge Kirsch writes:
Gomez argues that the trial court erroneously allowed the State to amend the charging information to add a count of murder. He specifically contends that the amendment of the charging information was not timely filed because, under the version of Indiana Code section 35-34-1-5 in effect at the time Gomez committed the instant offense, the State could only make a substantive amendment to the charging information thirty days prior to the omnibus date, and the State.s amendment occurred several months after the omnibus date. Although Indiana Code section 35-34-1-5 was subsequently amended to allow substantive amendments to the charging information at any time prior to trial, Gomez asserts that this change to the statute was a substantive change, which cannot be retroactively applied because it implicates the prohibition on ex post facto punishments. He therefore claims that the prior version of the statute applies here, and the State.s amendment of the charging information was not timely under the statute. * * *

Generally, the prohibitions against ex post facto clauses prohibit Indiana from enacting a law that imposes a punishment for an act that was not punishable at the time it was committed or imposes additional punishment to that then prescribed. Ramon v. State, 888 N.E.2d 244, 251 (Ind. Ct. App. 2008). However, these prohibitions do not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. Id. The clause is not designed to limit legislative control of remedies and modes of procedure which do not affect matters of substance. Id. Although it may work to the disadvantage of a defendant, a procedural change is not ex post facto. Id. A statutory revision is procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date, if it neither changes the elements of the crime nor enlarges its punishment. Id. at 252.

In Ramon, this court held that the application of the revised Indiana Code section 35-34-1-5 did not violate the ex post facto provisions of the Indiana and United States Constitutions because the statutory amendment was procedural. 888 N.E.2d at 252. In reaching this determination, we concluded that the revised statute defined the procedures the State must follow in order to amend a charging information and that the revision did not create any new crimes, change the elements of any crime, or alter any sentencing statutes. * * *

Therefore, based on the holdings of both Hurst and Ramon, this court has found that the legislative revisions to Indiana Code section 35-34-1-5 were procedural and did not implicate the ex post facto provisions of the Indiana and United States Constitutions. The amended version of the statute may accordingly be applied retroactively, and was applicable in the present case, allowing the State to amend its charging information to add the count of murder approximately ten months before the trial. * * *

Here, the time period between the amendment of the charging information and the jury trial was approximately ten months and gave Gomez the opportunity to prepare for the murder charge. Gomez cannot show that he was prejudiced by the added charge as he had ample notice of the new charge and a significant amount of time to prepare a defense for the trial. The trial court did not err when it granted the State.s request to amend its charging information.

In Rahn Davidson v. State of Indiana , a 9-page opinion, Sr. Judge Barteau writes:
Defendant-Appellant Rahn Davidson appeals his conviction of residential entry, a Class D felony, Ind. Code § 35-43-2-1.5. We affirm. * * *

Davidson was cohabitating with Sarah Ciriello. The relationship ended, and Ciriello moved to another residence. However, she allowed Davidson to store some of his belongings in the attached garage of her new residence. Subsequently, Davidson went to Ciriello’s new residence to obtain his belongings from the garage. While Davidson was still gathering all of his things, Ciriello left for work and gave Davidson permission to finish collecting his things from the garage but gave him instructions not to enter the house. Davidson kicked in the kitchen door and used the kitchen phone to call Ciriello’s cell phone.

Based upon this incident, Davidson was charged with residential entry. Following a bench trial, he was convicted of the charge. It is from this conviction that Davidson now appeals. * * *

Davidson claims that because he had no intent to commit theft or another crime once inside the dwelling, his actions did not constitute residential entry. In addition, Davidson advances the argument that because an attached garage is considered part of a dwelling, he did not commit residential entry by forcing his way into the kitchen. * * *

The offense of residential entry requires only a knowing or intentional breaking and entering of the dwelling of another, and does not require the intent to commit a felony. See Ind. Code § 35-43-2-1.5. Thus, Davidson’s argument on this issue fails. * * *

At trial, Ciriello testified that the door separating the garage from the house had a deadbolt lock on it, and she had locked the door on that particular morning. Ciriello had given Davidson permission to enter the garage, but he did not have permission to enter the residence. This evidence shows there was a clear demarcation (i.e., a locked door) between the garage and the kitchen, and Davidson had permission only to enter the garage. Thus, where there is an evident boundary, for example a door that locks and was locked at the time of the incident, the area is not only a part of the whole dwelling, but also a separate structure or enclosed space. Therefore, we hold that the locked kitchen in Ciriello’s residence constitutes a separate structure or enclosed space for purposes of Ind. Code § 35-41-1-10, and thus Davidson’s unlawful entry into the kitchen constitutes the offense of residential entry.

NFP civil opinions today (1):

In the Paternity of N.S.S.; K.H. v. D.S. (NFP)

NFP criminal opinions today (3):

Leonard Olden v. State of Indiana (NFP)

Danyon McClure v. State of Indiana (NFP)

Kyle T. Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In Jim Atterholt, Commissioner of the Indiana Dept. of Insurance v. Geneva Herbst, Personal Rep. of the Estate of Jeffrey A. Herbst, a 2-page, 5-0 opinion in a petition on rehearing, Justice Boehm writes:

Plaintiff has petitioned for rehearing, contending that our opinion incorrectly states that its holding applies to cases tried to judgment as well as to claims that have been settled by agreement between the plaintiff and the health care provider or its insurer. Plaintiff contends that ordinary principles of collateral estoppel and finality render any judgment reached after trial conclusive as to the amount of damages and therefore our holding should be limited to cases where the Fund is free to contest the award of damages by reason of the provisions contained in the Act that expressly authorize the Fund to contest petitions for “excess damages.” These provisions, by their terms, are limited to cases settled by agreement. Ind. Code § 34-18-15-3 (2004).

In this case, because the underlying case was settled, the damages remained subject to ob-jection by the Fund. We agree with plaintiff that in the ordinary case the amount of damages awarded by a judgment after trial is conclusive as to this issue. Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 400, 404 N.E.2d 585, 602 (1980). We did not intend to imply that the issue necessarily or even frequently remains open after a trial. We were not presented in this case with the question under what circumstances, if any, an issue as to the extent of the Fund’s liability may be left unresolved by a judgment in the underlying medical malpractice case. We express no opinion on that issue. Our opinion is restricted solely to the evidentiary question whether, if the extent of the Fund’s liability is in issue, the Fund may offer evidence relevant to the extent of damage which may include the patient’s risk of harm that preexisted the alleged malpractice.

The original, March 10th opinion, is here.

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS agrees to hear two cases on interesting issues

Reports this morning are that among the cases the Supreme Court has agreed to hear are:

United Student Aid Fund v. Espinosa (08-1134) - where the issue, according to Lyle Denniston at SCOTUSBlog, is "whether an individual who owes on a student loan may wipe out the debt — at least partly — in a bankruptcy without showing that the debt posed an 'undue hardship.'"

[More] See more about the student loan case here on the ABA news site.

Stop the Beach Renourishment v. Florida (08-1151), where, according to Denniston's entry, "Court will consider putting constitutional limits on states’ authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines."

Jonathan Adler at The Volokh Conspiracy writes that this is:

a challenge to the constitutionality of Florida's Beach and Shore Preservation Act. Specifically, the petition challenges the Supreme Court of Flordia's conclusion that the law does not deprive upland owners of littoral rights without just compensation in violation of the Fifth Amendment's takings clause. The Florida Supreme Court's 5-2 decision is here.

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 12, 2009

Here is the Clerk's transfer list for the week ending June 12, 2009. It is five pages long.

One case was granted transfer, In the Matter of N.E.; N.L. v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc.., discussed in this ILB entry June 11th.


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. Note that the search is now current through the May 22nd list.

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, June 15, 2009
Posted to Indiana Transfer Lists

Law - "The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims"

Marci A. Hamilton, a FindLaw columnist and professor at Benjamin N. Cardozo School of Law, has this lengthy June 11th article titled "The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims." The introduction:

When the California legislature passed amendments to its statute of limitations on child sex abuse in 2002, no one knew that its members were initiating a revolution for child sex abuse survivors. The key innovation was the "window" legislation, which gave survivors one year (2003) to file claims even if the statute of limitations for their claims already had expired. In this column, I'll consider the growing influence of this important law and its supporters.
Here are two earlier ILB entries, from April 4, 2008, and Jan. 25, 2009, that mention the impact of the statute of limitations in Indiana abuse cases.

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to General Law Related

Ind. Law - "It's the Law: Beware of 'sexting'"

Ken Kosky's NWI Times' "It's the Law" column today, June 15th, looks at "sexting."

Teenagers who use their cell phones to send sexually suggestive pictures of themselves or receive such pictures from a friend could find themselves facing child pornography charges.

Teens face the possibility of having to serve prison time and register as a sex offender.

The texting of sexual pictures has become such a phenomenon that it has been given a name – sexting. A national survey found 20 percent of teens have texted or posted online nude or semi-nude photographs of themselves.

Porter County Prosecutor Brian Gensel said Indiana's possession of child pornography law states it is illegal to make or transfer sexual material involving a child under 18 years of age. The offense is a felony, punishable by up to eight years in prison. It is a felony, punishable by up to three years in prison, to possess sexual material involving a child under 16 years of age.

Young people could also face federal charges.

Valparaiso attorney Bryan Truitt said if a girl sends naked pictures of herself to her boyfriend, the girl could be charged with distributing child pornography and the boy could be charged with receiving child pornography. In each case, the charge carries a mandatory minimum sentence of five years in prison. Possession of child pornography carries a prison term of up to 10 years federally, Truitt said.

There is, however, some resistance against prosecuting teens for sexting.

Truitt said there is a case from Pennsylvania in which some teens shared pornographic pictures of themselves and faced charges. The American Civil Liberties Unit requested an injunction to stop the prosecution and a federal judge recently granted it, Truitt said.

Gensel, who belongs to the National District Attorneys Association, said the association's trade publication recently featured a column on sexting which highlighted Montgomery County, Ohio, Prosecutor Mathias Heck Jr.'s implementation of a "diversion program" for sexting cases.

Young people who enter the diversion program undergo education on appropriate sexual boundaries and related topics, do community service and relinquish their cell phone for a period of time. If the program is successfully completed, the charges are dismissed or never filed.

Gensel said none of the police agencies in Porter County have brought him any sexting cases to prosecute, but he agrees with Heck that there needs to be some "tempering" of prosecution so some foolish, consenting behavior doesn't have long-term ramifications on young people's lives.

The ILB had this entry March 27th on the Scranton Pa. case.

Here is a news story on the Montgomery County, Ohio diversion program. And here is a June 4th story from the Rutland Vermont Herald on "a new law that provides prosecutors discretion to divert 'sexting' cases from the criminal docket to the juvenile courts."

Posted by Marcia Oddi on Monday, June 15, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/15/09):

Tuesday, June 16th

Next week's oral arguments before the Supreme Court (week of 6/22/09):

Next Thursday, June 25th

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 6/15/09):

Next week's oral arguments before the Court of Appeals (week of 6/22/09):

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 Monday, June 15, 2009
Posted to Upcoming Oral Arguments

Sunday, June 14, 2009

Ind. Law - "Indiana executions at slowest pace in 15 years"

Tom Coyle of the AP has a long story today on Indiana death penaly executions; the story is currently available from both the Chicago Tribune and Indy Star websites (also the South Bend Tribune). Some quotes:

SOUTH BEND, Ind. — Indiana has gone two years without an execution for the first time since the mid-1990s, when it put five inmates to death, and prosecutors say the decline could be a sign of things to come.

“We’re running out of death row inmates,” said Clark County Prosecutor Steven Stewart, who maintains a pro-death penalty Web site.

Indiana, which reinstated the death penalty in 1977, has handed down 93 death sentences since 1980, including 35 between 1984 and 1988. But the last person put to death was Michael Lambert, who was executed on June 15, 2007, for fatally shooting a Muncie police officer 16 years earlier. Only two death sentences have been imposed since 2004.

The decline is part of a larger national shift away from the death penalty. The number of people sentenced to death in the U.S. dropped from 326 in 1995 to 115 in 2007, according to U.S. Department of Justice statistics.

Prosecutors and death penalty experts say time and money issues are driving the decline, which has prompted several states to move to abolish the death penalty.

Here is Clark County Prosecutor Steven Stewart's pro-death penalty Web site. See particularly "Indiana Death Row 1977-2008."

Posted by Marcia Oddi on Sunday, June 14, 2009
Posted to Indiana Law

Law - "Obama Administration Plans to Scale Back Real ID Law"

Spencer S. Hsu reports today in the Washington Post:

Yielding to a rebellion by states that refused to pay for it, the Obama administration is moving to scale back a federal law passed after the Sept. 11 terrorist attacks that was designed to tighten security requirements for driver's licenses, Homeland Security Department and congressional officials said.

Homeland Security Secretary Janet Napolitano wants to repeal and replace the controversial, $4 billion domestic security initiative known as Real ID, which calls for placing more secure licenses in the hands of 245 million Americans by 2017. The new proposal, called Pass ID, would be cheaper, less rigorous and partly funded by federal grants, according to draft legislation that Napolitano's Senate allies plan to introduce as early as tomorrow.

The rebranding effort follows months of talks with the National Governors Association and poses political risk for Obama as well as Napolitano, a former NGA chairwoman who wants to soothe strained relations with the states without appearing to retreat on a recommendation by the 9/11 Commission. * * *

As governor of Arizona, Napolitano called Real ID "feel-good" legislation not worth the cost, and she signed a state law last year opting out of the plan. As secretary, she said a substitute would "accomplish some of the same goals."

Eleven states have refused to participate in Real ID despite a Dec. 31 federal deadline.

"The department's goal is to fix, not repeal" Real ID, allowing all jurisdictions to comply by year's end, said a DHS official, who spoke on the condition of anonymity before a formal announcement.

"If the law cannot be implemented, it is hard to claim that it increases security," said David Quam, lobbyist for the NGA.

The new plan keeps elements of Real ID, such as requiring a digital photograph, signature and machine-readable features such as a bar code. States also will still need to verify applicants' identities and legal status by checking federal immigration, Social Security and State Department databases.

But it eliminates demands for new databases -- linked through a national data hub -- that would allow all states to store and cross-check such information, and a requirement that motor vehicle departments verify birth certificates with originating agencies, a bid to fight identity theft.

Instead, it adds stronger privacy controls and limits such development to a pilot program in Mississippi. DHS would have nine months to write new regulations, and states would have five years to reissue all licenses, with completion expected in 2016. * * *

The new plan would still let people get licenses with fake documents, said Rep. F. James Sensenbrenner Jr. (R-Wis.), who authored the 2005 legislation. "We go right back to where we were on Sept. 10, 2001," he said, "Maybe governors should have been in the Capitol when we knew a plane was on its way to Washington wanting to kill a few thousand more people."

Pass ID also penalizes states that have spent millions to digitize their records, rewards laggards with federal funds and makes new requirements unenforceable, foes said.

For example, the new bill kills provisions that would have required the new IDs to board airplanes and that IDs that did not comply with the requirements feature a different color or design.

Meanwhile, privacy groups also objected, saying Real ID should just be killed.

"We don't want to end up with National ID Lite," said Chris Calabrese, counsel to the technology and liberty program at the American Civil Liberties Union.

Jim Harper, director of information policy studies at the libertarian Cato Institute, said the plan is "a lot softer" but will still leave more Americans' personal data subject to theft and misuse.

Sens. Daniel K. Akaka (D-Hawaii) and George V. Voinovich (R-Ohio), the bill's sponsors, are seeking support from Sens. Joseph I. Lieberman (I-Conn.) and Susan Collins (Maine), the chairman and ranking Republican, respectively, on the Senate homeland security committee, and other centrist lawmakers. So far, no other Republicans have signed on.

John Gramlich had a story in Government Technology on April 23rd that began:
Congress and the Obama administration are considering ceding key ground in a long-running battle between the federal government and the states over Real ID, the 4-year-old federal program that requires all states to start issuing more secure driver's licenses by the end of the year.
Computerworld's Jaikumar Vijayan wrote June 1 under the headline "Oregon joins list of states saying no to Real ID: State won't adopt Real ID unless feds reimburse costs, lawmakers say." Some quotes:
Oregon is one step closer to becoming the latest in a growing number of states to reject the Real ID Act, which sets a national standard for driver's licenses.

Lawmakers in Oregon's House of Representatives approved a bill on Friday that would prohibit agencies from spending state money to implement the requirements of the Real ID Act unless the federal government reimburses them the money.

The bill, which now heads to the governor for his signature, would also prevent the state Department of Transportation from implementing requirements of the Real ID Act unless it can demonstrate specific security controls for protecting driver's license data. The bill passed the Senate in April.

If signed into law, the bill would make Oregon one of more than two dozen states with measures either rejecting or opposing the Real ID mandate, put in motion by former President George W. Bush.

The American Civil Liberties Union (ACLU), which has been tracking state opposition to the bill, currently lists more than a dozen states that have passed statutes prohibiting the implementation of Real ID.

The most recent of those rejections was by Minnesota which in May signed into law a statute that prohibits Real ID implementation. Others include Arizona, Arkansas, Idaho, Maine, Montana, New Hampshire, South Carolina and Washington.

In addition, another 10 have passed resolutions denouncing Real ID, while anti Real-ID legislation has been introduced in five other states.

The growing number of states blocking Real ID is sure to increase the pressure on the U.S. Department of Homeland Security (DHS), which is responsible for overseeing the standard, to either drop the initiative or somehow make it more acceptable to states. It's a particularly tricky balancing act for the Obama administration because DHS Secretary Janet Napolitano was among the first to reject Real ID as former governor of Arizona.

Here is the chart "tracking state opposition to the bill" referenced in the story.

Posted by Marcia Oddi on Sunday, June 14, 2009
Posted to General Law Related

Ind. Gov't. - "Was Kalispell, Montanna's prospective new city manager, Matt McKillip, reluctant to produce public information while he was mayor of Kokomo, Ind.?"

Remember all the ILB entries in 2006 about a high school student who had to go to court to prevail in an open records fight with Kokomo's then- Mayor Matt McKillip?

Now read this story published June 11th in the Daily Inter Lake, "Northwest Montana's News Source." Reporter John Stang writes:

Was Kalispell's prospective new city manager, Matt McKillip, reluctant to produce public information while he was mayor of Kokomo, Ind.?

The Kokomo Tribune newspaper says yes.

McKillip says no.

When the Kalispell City Council interviewed the five finalists for city manager on June 3, it asked each candidate about promoting transparency in the local government.

All five gave very pro-transparency answers.

McKillip told the Kalispell council that he helped improve city government openness in Kokomo.

However from 2005 to 2007, the Kokomo paper wrote several stories about clashing with him and his administration on obtaining public records. The Tribune also wrote several times about McKillip not returning numerous phone calls for comments and elaborations.

In a Saturday interview, McKillip said he returned phone calls and produced public records in a timely fashion —and that some delays in providing information to the Tribune were due to the Kokomo city attorney's decisions.

"I got along well with the Tribune," McKillip said — except for reporter Scott Smith, who covers the Kokomo city government. McKillip described Smith's work as 'very inaccurate reporting, very biased reporting."

Tribune managing editor Jeff Kovaleski said Smith is an experienced, veteran reporter. ""We stand by his reporting and his accuracy, and we wish Matt all our best wishes in his future endeavors." * * *

The city lost a 2005-06 open-records legal battle over a teenage boy seeking a list of e-mail addresses that received the city's electronic newsletters.

The high school student, Ryan Nees, told the Tribune he wanted to compare the city's list with a list of e-mail addresses that receive McKillip's political e-mails — after receiving such a political e-mail.

But on Saturday, McKillip said that Nees wanted to use the requested list for the boy's own political e-mails. "Overwhelmingly, the public told us not to share the list," McKillip said.

The Tribune reported the city administration told Nees it would not provide him such a list, but he could hand-copy it. The boy filed a lawsuit in the county circuit court — and won. The city attorney decided not to appeal.

The newspaper reported the city spent $23,000 defending itself and had to pay an additional $11,000 for Nees' attorney fees.

McKillip said if he could do it over, he would have pushed for an appeal —believing his side would have won.

McKillip lost a 2005-06 dispute with the Indiana State Public Access Counselor's Office over charging $1 per page to photocopy city documents when the Kokomo City Council reduced the charge to 25 cents a page.

McKillip argued in 2006 that the $1-per-page fee was needed to cover copying labor costs, the Tribune reported. In 2005, the Tribune obtained an informal opinion from the state's public access counselor's office that $1 per page was excessive. The paper reported most county agencies charged 20 cents a page.

Posted by Marcia Oddi on Sunday, June 14, 2009
Posted to Indiana Government

Saturday, June 13, 2009

Environment - "EPA secrecy on coal-ash list worries lawmakers: Some of 44 'high hazard' sites might be in Kentucky, Indiana"; My thoughts

James S. Bruggers writes today in the Louisville Courier Journal:

The Environmental Protection Agency has identified 44 "high hazard" coal-ash piles across the country but is not letting the public know where they are.

That's prompted calls by U.S. Rep. John Yarmuth, D-Louisville, and Sen. Barbara Boxer, D-Calif., to make them public.

"I would want to know if my house and family was near one of these ash piles," said Yarmuth, acknowledging that his district contains two coal-fired power plants that store ash in ponds, one of which was previously identified as "high hazard" by Kentucky officials. "I don't understand what the great national security interest is. If they are worried about potential terrorists, that would seem to be a stretch."

Kentucky and Indiana are leading producers of ash from coal-fired power plants. Both states have numerous ash sites where the waste is stored, often in ponds near power plants.

He said the secrecy troubles him, especially since the Obama administration has promised a more open government.

EPA spokeswoman Adora Andy said the decision to withhold the list came after the agency received a recommendation from the Army Corps of Engineers. * * *

Corps spokesman Gene Pawlik said his agency was consulted because it oversees management of a national dam inventory. He said it did not recommend secrecy, but advocated the information be made public judiciously in each community where the coal-ash piles are located.

"We don't release a consolidated list of information ... as a single document," he said. Instead, he said, the Corps recommends making the information available to emergency responders and local officials, and the public through community meetings.

But Pawlik added that ash ponds could be a target for terrorists.

"A lot of times, when you are talking about those sorts of targets, who knows what is in somebody's mind?"

Coal-ash safety became a national concern in December, after a 5.4 million-cubic-yard ash pile at a Tennessee Valley Authority plant near Knoxville, Tenn., collapsed, covering several hundred acres, damaging numerous homes and properties, and polluting a tributary of the Tennessee River. The cleanup cost is estimated at nearly $1 billion.

Newly appointed EPA administrator Lisa Jackson promised a national survey of ash impoundments and federal regulations to ensure their safety and protection of the environment. The EPA has identified hundreds of places where ash is stored.

Boxer said that this week, EPA began to notify local officials, including first responders, about the "high hazard" sites, and was deploying teams to determine whether there were any imminent dangers.

EPA officials would not say whether any local meetings would be held.

Both Boxer and Yarmuth commended the EPA for its review of the ash impoundments. Yarmuth said the agency's scrutiny could help Louisville residents feel more secure about the local ash impoundments.

Rob Elstrow, spokesman for the Indiana Department of Environmental Management, would not say whether any of the ash piles in Indiana were on the EPA list.

Kentucky environmental regulators have not been made aware of whether any Kentucky sites are on the reported list of 44, said Karen Wilson, spokeswoman for the Kentucky Energy and Environment Cabinet.

My thoughts: The ILB has had a number of entries over the years reporting concerns about coal ash, its disposal, and impoundments and retention ponds. Public concerns have heightened after the massive coal ash spill last December at a Tennessee Valley Authority power plant in Kingston, Tennessee. (See this entry about the impact of the spill six months later.)

This Jan. 9th ILB entry quoted from an AP analysis showing that Indiana ranks at the top of states storing the most coal ash in ponds. But IDEM has been quoted in a number of stories stating that it does not maintain a comprehensive list of coal ash impoundments. Apparently, no one regulates them.

Now EPA has created a list of "the 44 most 'high hazard' coal-ash piles across the country but is not letting the public know where they are."

Apparently the feds fear these impoundments are so dangerous that terrorists will target them. So they will keep the list of them secret. Pretty incredible. And what about nuclear and chemical plants?

Of course, it is difficult to rally people state-wide, or regionally, to get changes made if the damning information is held "hush hush" and provided only on a "need to know" basis.

Posted by Marcia Oddi on Saturday, June 13, 2009
Posted to Environment

Courts - Two interesting look-backs today on the Chrysler bankruptcy

Charles Lane, economics columnist for the Washington Post, has a column, dated June 14th, headed "A Rescue that Overreached?" A few quotes:

Nationalizing General Motors, and part of Chrysler, may or may not turn out to be a good deal for the taxpayers. I have a different concern, though: Was it constitutional?

With hundreds of thousands of jobs on the line, this may seem a churlish question. Then again, the temptation to bend the rules of democracy is always greatest in a crisis. It wasn't so long ago that a president claimed the power to do all sorts of questionable things -- from waterboarding to electronic surveillance -- because the country faced a crisis. * * *

In other words, sometimes the president can get away with stretching his authority because Congress would rather not be held accountable for formally defining it.

The GM-Chrysler deals appear to be such an instance. But the constitutional ambiguity surrounding this use of TARP may prove tolerable only as long as the policy itself is. If GM and Chrysler start gobbling up even more funds -- or if additional non-financial companies get bailouts -- more Americans might question the president's power to select certain firms for federal rescue. Fortunately, the TARP statute expires at the end of this year. Let's hope the next version is a little less open to interpretation.

"Creditors Cry Foul at Chrysler Precedent " is the heading to this story today in the WSJ, reported by Ashby Jones and Mike Spector. Some quotes:
Chrysler Group LLC's restructuring is altering the bankruptcy landscape well beyond the auto industry.

Within days of a bankruptcy-court judge's approval of the government's plan to sell Chrysler to Fiat SpA and leave creditors with big losses, a lawyer in the bankruptcy case of the National Hockey League's Phoenix Coyotes invoked Chrysler in trying to push through the speedy sale of the team.

Should the judge approve that move and allow the Coyotes to be sold quickly, as Chrysler was, it could put some creditors out in the cold, leaving the NHL and other investors without the kind of input typically afforded by bankruptcy law. * * *

The Obama administration's plan for pushing through Chrysler's restructuring has been criticized by some for going too quickly, which led to an end run around creditors, who got little say in the process. A few creditors objected in court, saying their rights were being denied, but they lost at all levels, including at the Supreme Court.

The Obama administration maintains that it used established bankruptcy procedures, and that extraordinary measures were needed to prop up an industry that could cripple the U.S. economy if it collapsed.

Lawyers who represent banks, hedge funds and other creditors fear the Chrysler precedent could be used to allow companies to get around established rules for reorganizations, and not just in extraordinary circumstances.

The point of contention with Chrysler was a procedure called a "363 sale," which refers to a section of the U.S. Bankruptcy Code. Such sales are typically used to shed assets in bankruptcy proceedings, such as a building or subsidiary that needs to be sold quickly to maximize its value, and can be done without creditor approval. But critics said Chrysler used the procedure to restructure the entire company.

General Motors Corp., which filed for bankruptcy protection June 1, plans to conduct a similar sale to sell its "good" assets to a new GM with fewer brands and less debt.

Lawyers are seizing on these examples to invoke the need for speed, claiming emergency circumstances.

Posted by Marcia Oddi on Saturday, June 13, 2009
Posted to Courts in general

Ind. Courts - More on: "Ex-Clark court workers sue: Two claim firings politically based"

Updating this ILB entry from June 4th, Braden Lammers writes today in the New Albany News & Tribune in a lenthy story:

Clark County Circuit Court Judge Dan Moore, along with Clark County, has been named in a lawsuit by two former court employees.

Jeremy Snelling, a former bailiff, and Chanelle Vavasseur, a former court reporter, filed separate suits May 13 against the county and Moore, claiming when he took office in January, they were fired without reasonable cause.

The complaint alleges that the dismissal was made on the sole ground of the plaintiffs’ political affiliation, therefore violating their civil rights under United States Code, said Rick Fox, attorney for Snelling and Vavasseur.

Vavasseur’s suit includes an additional complaint alleging violation of civil rights because she is black.

The former employees are seeking damages for lost salary, reimbursement for the Public Employee Retirement Fund, life insurance and health insurance benefits. * * *

Indiana also has been listed in the suit because the plaintiffs were state employees. Because the state is a defendant, the case has been moved to a federal U.S. District Court in New Albany.

Posted by Marcia Oddi on Saturday, June 13, 2009
Posted to Indiana Courts

Ind. Courts - State's high court to hear Gary case on whether districts must clear ice, snow when school's out

The Gary Post-Tribune reports that Tuesday the Supreme Court will hear oral arguments in the case of Gary Cmty. Sch. Corp. v. Lolita Roach-Walker:

to consider whether school districts must inspect and clear their sidewalks of snow and ice even when school is not in session.

The plaintiff in the case, Lolita Roach-Walker, fell on a sidewalk at Bailly Middle School on Saturday, Feb. 5, 2005, while attending an event held by the Gary Historical and Cultural Society for her foster children.

Roach-Walker suffered injuries to her knee, wrists and back.

Attorneys for the school district argued she fell due to her own negligence.

A jury found Gary Community School Corp. liable after the trial judge refused to apply statutory immunity to the school district. The jury awarded the plaintiff $90,000, and the school district filed this appeal.

The Gary Community School Corp. contends Indiana Code protects schools from liability for a "temporary condition of a public thoroughfare ... that results from weather."

See also this ILB entry from June 8th.

Posted by Marcia Oddi on Saturday, June 13, 2009
Posted to Upcoming Oral Arguments

Friday, June 12, 2009

Law - "Government Data and the Invisible Hand"

The article referenced here, about how to use infotech to make government more transparent, is about the federal government, but it is equally applicable to state government.

And appropriate here, I think, is a quote I heard recently: "Yesterday's transparency is today's opacity."

Posted by Marcia Oddi on Friday, June 12, 2009
Posted to General Law Related | Indiana Government

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

For publication opinions today (1):

In Keland L. Brown v. State of Indiana , a very split opinion, Judge Najam writes for the majority:

In sum, this panel unanimously agrees that the trial court did not err in not assigning mitigating weight to Brown's guilty plea and that Brown's ten-year sentence is not inappropriate. But there is no majority opinion on the amount of credit time to which Brown is entitled. Because two of the three panel members agree that Brown's credit time began to accrue not later than April 10, 2008, the day on which he was arrested for the crime he was ultimately sentenced on, we remand this matter to the trial court with instructions that it award Brown credit for time served beginning on that date. Affirmed in part and reversed and remanded in part.

BAKER, C.J., concurs in part and dissents in part with separate opinion.
KIRSCH, J., concurs in part and dissents in part with separate opinion.

[CJ Baker's dissent begins, on p. 9:] I agree with my colleagues' conclusion that the trial court did not abuse its discretion in not recognizing Brown's guilty plea as a significant mitigating factor. Moreover, I agree that Brown's ten-year sentence is appropriate when considering the nature of his offense and his character. However, I part ways with the determination that Brown is entitled to pretrial credit time against his sentence.

[J. Kirsch's dissent begins, on p. 12:] I concur in the decision of the lead opinion affirming Brown's sentence and awarding him credit time from April 10, 2008 forward, but I respectfully dissent from the decision denying Brown credit time prior to such date.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Terry Proctor v. State of Indiana (NFP)

Terry Hedges v. State of Indiana (NFP)

Christopher Mitchell v. State of Indiana (NFP) [corrected link]

Posted by Marcia Oddi on Friday, June 12, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals court upholds dogfighting conviction"

This ILB entry from April 30, 2008 quoted a report that day in the Gary Post-Tribune that began:

Animal rights activists Tuesday morning were applauding the conviction of Gary firefighter Carlton Davis Jr. on charges he trained fighting dogs and promoted dog fights.

"When I heard about it I cried," said Betty Clayton, director of the Humane Society of Northwest Indiana, who attended parts of Davis' six-day trial.

The verdict was appealed and yesterday the Court of Appeals upheld the conviction in the case of Carlton Davis, Jr. v. State of Indiana - see ILB summary here.

Today the Post-Tribune has this report:

The Indiana Court of Appeals has upheld the 2008 convictions of former Gary firefighter Carlton Davis Jr., who ran a pitbull-fighting operation in Calumet Township.

On the issue of whether the trial court mistakenly allowed evidence obtained in violation of Davis' 4th Amendment right against illegal searches and seizures, the appeals court noted that circumstances of animal cruelty would create an exigent circumstance to permit a police officer to inspect the property. A neighbor reported she saw emaciated, scarred animals chained to 55-gallon drums on Davis' property and empty food and water dishes.

Relying on information gathered by another officer, Lake County police Detective Michelle Weaver re-entered

Davis' appeal also challenged the admission of evidence that Davis had previously been involved in dog-fighting prior to May 2006. The appeals court found that a trophy receipt from October 2003 and a handwritten paper titled "April Show 2004" should have been excluded from the trial because their prejudicial effect is stronger than their value to prove the allegations that Davis was keeping pit bulls in 2007.

But the court also found the error was harmless because of substantial independent evidence of Davis' guilt, including photos of 15 scarred dogs, a dog carcass and bloodstained carpet from the pole barn where neighbors saw men gather with other pit bulls.

From a story in the NWI Times by Susan Brown:
Fifteen dogs were confiscated from Davis' home in May 2006 after neighbors complained about the condition of the animals. Lake County police found equipment they believed used in dogfighting.

The Indiana Court of Appeals on Thursday affirmed the conviction concluding that despite a detective's illegal search of Davis' property, there was enough untainted information to support the search warrant. In addition, the court despite the trial court abusing its discretion in admitting two pieces of evidence in violation of evidentiary rules, the error was harmless in light of overwhelming evidence supporting the conviction.

Posted by Marcia Oddi on Friday, June 12, 2009
Posted to Ind. App.Ct. Decisions

Thursday, June 11, 2009

Law - "Facebook and Divorce"

Belinda Luscombe has a long article in the June 22nd Time that includes:

For those who want to connect or reconnect with others, social-networking sites are a huge, glorious honeypot. But for those who are disconnecting, they can make things quite sticky. And as the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators.

Lawyers, however, love these sites, which can be evidentiary gold mines. Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to General Law Related

Environment - Indiana bat endangered by wind farms?

Bats are already at serious risk because of a fungus -- this May 6th story in the Chicago Tribune is headed "Fungus is bat version of the black plague." This June 4th AP story begins:

WASHINGTON - A mysterious fungus attacking America's bats could spread nationwide within years and represents the most serious threat to wildlife in a century, experts warned Congress Thursday.

Displaying pictures of bats speckled with the white fungus that gave the disease its name — white-nose syndrome — experts described to two House subcommittees Thursday the horror of discovering caves where bats had been decimated by the disease.

As a state wildlife biologist from Vermont put it, one cave there was turned into a morgue, with bats freezing to death outside and so many carcasses littering the cave's floor the stench was too strong for researchers to enter.
Story continues below ↓advertisement | your ad here

They also warned that if nothing more is done to stop its spread, the fungus could strike caves and mines with some of the largest and most endangered populations of hibernating bats in the United States.

At stake is the loss of an insect-eating machine. The six species of bats that have so far been stricken by the fungus can eat up to their body weight in insects a night, reducing insects that destroy crops, forests and carry disease such as West Nile Virus.

"We are witnessing one of the most precipitous declines of wildlife in North America," said Thomas Kunz, director of the Center for Ecology and Conservation Biology at Boston University, who said that between $10 million and $17 million is needed to launch a national research program into the fungus.

All the more reason, then, to pay serious attention to this AP story today on bats and wind farms that begins:
CHARLESTON, W.Va. - Environmental and animal rights groups are asking a federal judge to require the developer of a West Virginia wind farm to comply with the Endangered Species Act because of the potential harm to the endangered Indiana bat.

The Animal Welfare Institute and Mountain Communities for Responsible Energy say Beech Ridge Energy LLC should be required to obtain a federal permit because the spinning blades of its 124-turbine wind farm could kill bats living and migrating through the area.

The institute is a Washington, D.C.-based animal protection organization. Mountain Communities is based in Williamsburg, W.Va. Also named as a plaintiff is Frankford, W.Va., resident David Cowan, who lives about five miles from the project.

Beech Ridge has received state approval to build the wind farm over a 23-mile stretch of ridgetop in Greenbrier County in southeastern West Virginia. Under the Endangered Species Act, a permit is required from the U.S. Fish and Wildlife Service if an otherwise lawful activity results in the incidental death or harm to an endangered species, said Bill Eubanks, who is representing the groups and filed the lawsuit Wednesday in U.S. District Court in Maryland. * * *

In their filing, the groups say Beech Ridge's development will place 390-foot-tall wind turbines within miles of know Indiana bat habitat.

"This case is not about halting, it's about mitigation," Eubanks said. "We don't want to see the Indiana bat die off."

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Environment

Ind. Law - Golf carts may soon putter around town of Topeka (LaGrange County) [Updated]

Updating this ILB entry from June 9th about Oldenburg's plans, Robin Degner reports in the Goshen News:

The new golf cart ordinance for Topeka is in its final stages of completion.

“After last month’s meeting, we did a lot more research,” town attorney Bill Eberhard said.

The golf cart ordinance will require that all drivers have a valid driver’s license and be at least 16 years old.

Additionally, the golf carts must bear a “slow moving vehicle” sign during the day.

To be driven at night, they must have taillights, turn signals and head lights, which need to be used a half hour before sunrise and a half hour after sunset.

After some discussion, the Town Council and Eberhard agreed that only six passengers will be allowed on each golf cart. Insurance is also a necessity.

Eberhard said the penalty is a classic infraction, which is up to a $200 fine per offense.

“It could get rather salty pretty quickly,” Eberhard said.

For example, six teens without a driver’s license driving without insurance could result in an $800 fine.

[Updated at 6:30 pm] The City of Lebanon may be thought of as the place where the Indiana golf cart brouhaha began. See this ILB entry from Aug. 13, 2008, quoting a story headed "Golf cart use still illegal on city streets":

But, as this headline to a story in the June 9th Lebanon Reporter states: "Golf carts could return to city streets." Rod Rose reports:

Lebanon — Beginning July 1, pending legal review, golf carts that meet city standards will be allowed on Lebanon streets.

City officials warned golf cart owners not to start their engines prematurely.

“I want everyone to understand that this does not go into effect until July 1,” Mayor Huck Lewis said Monday.

On that day a state law allowing cities to regulate golf carts takes effect. The law clarifies confusing, contradictory and sometimes contentions positions between the Indiana State Police, the Bureau of Motor Vehicles and local authorities.

The carting controversy began several years ago, when Lebanon streets were flooded by dozens of carts rented from an entrepreneur who trucked them into town for the Fourth of July festivities. Police were deluged with complaints of recklessly driven golf carts overloaded with passengers.

Before then, a few residents had used carts for errands and short trips.

An Indiana State Trooper began ticketing golf cart drivers, citing them for violations of motor vehicle laws.

Lebanon’s city council passed an ordinance designed to restrict and regulate golf cart use, but the ordinance was declared illegal in 2008. More than 70 golf cart permits, at $30 each, were issued in 2007. No permits were sold in 2008.

Darren Chadd, an attorney with the city’s law firm, will review the state law and Lebanon’s three-year-old golf cart ordinance.

If he finds no conflicts, carts are go for launch July 1.

Clerk-Treasurer Debbie Ottinger will keep her office open for 12 hours that day, in anticipation of the demand for $30 permits.

“Nothing will happen until everything’s been approved,” Ottinger said at Monday’s city council meeting.

Previous permits are invalid, she said Tuesday. “These permits are only for a specific year.”

Golf carts must be owned by the registrant, Ottinger said. No one renting a golf cart will be given a permit.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Indiana Law

Ind. Courts - $1 million suit targets Bloomington's Furr family, associates, and a law firm

A story today ($$) in the Bloomington Herald Times begins:

A lawsuit filed in Monroe Circuit Court seeks more than $1 million in compensation and damages from prominent Bloomington businessman Bruce Furr, Furr’s family members, companies they are associated with and the law firm of Mallor Clendening Grodner & Bohrer.

The litigation, filed Tuesday by former International Outsourcing Services employee Kari Costello, is related to the federal indictment of Furr and his sons, Lance and Steven, in what has been called the largest coupon fraud case in U.S. history. That case, filed in a Wisconsin federal court in 2007, alleges that IOS bilked nearly a quarter of a billion dollars in fraudulent coupon redemptions from many of the nation’s largest consumer product companies.

Costello was awarded more than $1.2 million in unpaid compensation and legal fees in April 2008, but alleged in Monroe Circuit Court earlier this year that payments to her had stopped and Furr-related companies had declared bankruptcy to avoid paying her the full settlement.

The lawsuit filed this week pursues a legal strategy known as “piercing the corporate veil” and alleges that IOS founder, Furr, his family members and related corporations have conflated their personal and financial interests to prevent Costello from collecting the remainder of the money due her.

The lawsuit also alleges that the Bloomington law firm Mallor Clendening Grodner & Bohrer attorney Gary Founds and businessman Rick Rechter conspired to prevent Costello from receiving her due compensation.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Indiana Courts

Ind. Law - "Bose McKinney & Evans Sanctioned"

The ABA Journal has this news story this afternoon, reported by Debra Cassens Weiss. It begins:

A federal judge has sanctioned Bose McKinney & Evans, saying the Indianapolis law firm “skated the edge of its responsibility” by behaving as a chameleon and becoming indistinguishable from a client that withheld information in discovery.

U.S. District Judge Larry McKinney ordered Bose McKinney and the client, Red Spot Paint & Varnish Co., to split the costs of attorney fees and discovery related to the discovery litigation, according to a June 5 opinion posted by the Indiana Law Blog. He also found that Red Spot had forfeited its defense to the suit by a property owner seeking environmental cleanup costs.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Indiana Law

About this Blog - Another law firm signs on as annual ILB supporter

Thanks to Fillenwarth Dennerline Groth & Towe, LLP, which signed on today as an ILB Law Firm Annual Supporter. Check The Law Firm Supporters of the ILB link in the upper right-hand corner of this page (or click here) to see the list of supporters.

A copy of the ILB Supporter Agreement that you can print and mail is available here.

Note that all applications received in June get posted immediately, although the Quarter begins July 1st.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to About the Indiana Law Blog

Ind. Decisions - One case granted transfer June 11th

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 In the Matter of N.E.; N.L. v. Marion Co. Dept. of Child Svcs. and Child Advocates, Inc.. From the March 19th ILB summary of the COA opinion:

Normally, a juvenile court would determine that a child is either a CHINS or is not a CHINS when presented with a CHINS petition. However, before the juvenile court, Father articulated the argument that although N.E. was a CHINS with respect to Mother, she was not a CHINS with respect to him. This is an interesting perspective which we feel deserves further consideration.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Carlton Davis, Jr. v. State of Indiana , a 22-page opinion, Judge Bailey concludes:

In sum, despite Detective Weaver's illegal search of Davis' property in violation of the Fourth Amendment there was enough valid untainted information in the probable cause affidavit to support the issuance of the search warrant. Also, the language of the search warrant met the particularity requirement of the Fourth Amendment. Finally, the trial court did abuse its discretion in admitting two pieces of evidence in violation of Indiana Evidence Rule 404(b). However, this was harmless error in light of the overwhelming evidence supporting Davis' dog fighting convictions.Affirmed.
Note that this decision cites:
The only Indiana case addressing the legality of a search and animal welfare ... Trimble v. State, 842 N.E.2d 798 (Ind. 2006) [see ILB summary here, re "Butchie"]. * * * Although the facts at hand are not on all fours with those in Trimble, we believe that it is a reasonable extension of the logic in Trimble that circumstances of animal cruelty may create exigent circumstances to permit a warrantless search of the curtilage. Similar to those states that have determined the threat to animal life to be a basis for exigent circumstances, Indiana's animal cruelty statute evidences a strong public policy against the mistreatment of animals[.]
In Luis Ruiz Bonilla v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
Luis Ruiz Bonilla pled guilty to dealing in cocaine, and the trial court sentenced him to the advisory term of thirty years. Bonilla now appeals, arguing that his sentence is inappropriate. The State responds that Bonilla waived the right to appeal because his plea agreement contains a provision that he waived the right to appellate review of his sentence under Indiana Appellate Rule 7(B). However, because the trial court made confusing remarks at the guilty plea hearing indicating that Bonilla “may” have waived the right to appeal and then advised Bonilla of the rights to appeal and to an attorney, we conclude that Bonilla did not waive the right to appeal his sentence. Nevertheless, in light of Bonilla’s illegal entry into this country and his failure to follow the laws once here, we conclude that he has failed to prove that the advisory sentence is inappropriate.
NFP civil opinions today (3):

Lorraine Bunn, as Personal Rep. of the Estate of Robert P. Bunn; and Robert L. Bunn v. Indiana Dept. of Transportation (NFP) an 11-page, 2-1 opinion, Judge Barnes writes:

Lorraine Bunn, as Personal Representative of the Estate of Robert P. Bunn, deceased, and Robert L. Bunn (collectively, “the Estate”) appeal the grant of summary judgment in favor of the Indiana Department of Transportation (“INDOT”) upon the Estate’s negligence claims. We reverse and remand for further proceedings.

The sole issue presented is whether the trial court erroneously granted summary judgment to INDOT upon concluding that INDOT owed no duty of care to the injured parties. * * *

More recently, in Indiana Dept. of Transp. v. Howard, 879 N.E.2d 1119 (Ind. Ct. App. 2008), this Court again recognized a non-delegable duty on the part of INDOT. * * *

The Howard Court recognized that INDOT’s enabling legislation gives INDOT general responsibility for the “construction, reconstruction, improvement, maintenance, and repair of state highways,” Ind. Code § 8-23-2-4.1(4), but also recognized that “INDOT can delegate the performance of its duty to maintain and repair state highways” (citing Indiana Code §§ 8-23-9, describing the procedure for awarding state highway contracts).

Ultimately, however, “although a governmental entity can delegate its responsibility for maintaining streets to a private party, it cannot avoid liability for negligent maintenance of the streets on the basis of its delegation.” * * *

Consistent with its statutory and contractual duties, INDOT maintained a frequent presence at the Project site. In fact, two INDOT engineers were at the site when the electrocution occurred. For all the foregoing reasons, INDOT is not entitled to summary judgment premised upon a lack of a duty to Robert and Bobby. * * *

ROBB, J., concur.
DARDEN, J., dissents with separate opinion.[which begins] I respectfully dissent. Citing to Howard,the majority concludes that INDOT cannot avoid liability to independent contractors’ employees on the basis of its delegation of its responsibility to maintain and repair state highways. In so doing, the majority acknowledges that the decedent in Howard was a member of the traveling public, not an employee of an independent contractor performing road construction; however, it declined to distinguish this case from Howard on that basis.

Fivalco, Inc. v. Shambaugh & Son L.P. (NFP) - "A single issue is presented for review: whether the default judgment is void for lack of personal jurisdiction over Fivalco. * * * The United States Postal Service return of service indicated that the summons had been delivered to “2221 Winston” but the signature of the recipient was illegible. * * * A copy of Shambaugh’s summons and complaint was sent by certified mail to Fivalco; this constitutes effective service. See id. Therefore, the default judgment was not void for want of personal jurisdiction as alleged by Fivalco in its Trial Rule 60(B)(6) motion for relief from judgment. The trial court did not err in denying that motion.

M.L., Alleged to be CHINS; C.L. v. IDCS (NFP)

NFP criminal opinions today (3):

Charles Durham v. State of Indiana (NFP)

Dewayne Washington v. State of Indiana (NFP)

Chad Wood v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - 2009 Edition of the Indiana Trial Court Administration Manual For Judges and Clerks now available

Access it here. The description:

Though the Division of State Court Administration, the Indiana Judicial Center, and the Indiana Association of Circuit Court Clerks all provide resources, training, and guidance for newly elected judges and clerks, the sheer amount of information a new judge or clerk needs to do his or her job effectively is significant. There are countless rules, statutes, and standards that a judge or clerk must become familiar with and employ on a regular basis.

This handbook outlines the information that judges and clerks use most often into 34 chapters of summary information on each topic. Every chapter contains links to the full text of code and rule citations, to forms, and to other publications and resources.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Indiana Courts

Courts - Significant legal questions remain about the Chrysler-Fiat deal

Supplementing this ILB entry yesterday quoting Lyle Denniston of SCOTUSLaw Blog's commentary that:

Fundamental constitutional issues surround the use of federal funds in the Chrysler bailout, as do a host of questions about using the bankruptcy laws as they were in this case. They were raised in the papers filed at the Court this week, but they were not answered in any final way.
Today Warren Richie of the Chrstian Science Monitor has more on this, in a story headed "Supreme Court steps aside on Chrysler-Fiat deal but questions remain: The legal issues raised in the case against the deal are likely to arise again with General Motors." Some quotes:
Washington - The US Supreme Court action Tuesday that cleared the way for the reorganization deal between Chrysler and Italian automaker Fiat did not resolve any of the potentially significant legal issues raised against the deal.

Instead, the high court went out of its way to emphasize that its decision simply lifted the temporary stay entered on Monday.

"A denial of a stay is not a decision on the merits of the underlying legal issues," the court said in an unsigned two-page order. It added: "Our assessment of the stay factors here is based on the record and proceedings in this case alone."

Groups objecting to the Chrysler-Fiat alliance raised questions about using government bailout money and bankruptcy laws to speed completion of the deal.

The Supreme Court action lets stand the decision of a bankruptcy judge and a three-judge appeals court panel. But it does not signal an endorsement by the court of the legal reasoning in those decisions. * * *

The legal fight against the Chrysler bailout began when a group of pension and construction funds in Indiana as well as several consumer groups took issue with aspects of the special arrangements.

Lawyers for the pension funds argued that the US Treasury Department was illegally diverting money from the Troubled Asset Relief Program (TARP) to Chrysler to facilitate the Fiat deal. They argued that the Emergency Economic Stabilization Act of 2008 (EESA), which set up TARP, earmarked those funds for financial institutions – not car companies.

They added that Treasury officials were misusing bankruptcy laws in a "sham" that favored the United Auto Workers union and cheated secured creditors out of favorable treatment.

"The Chrysler and General Motors bankruptcies involve almost $100 billion in assets, and the government, without any specific approval from Congress, is using the bankruptcy system to re-order private property rights on a scale and in a way that America has never before seen," wrote Indiana Solicitor General Thomas Fisher in his appeal to the Supreme Court.

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Courts in general

Environment - U.S. Steel Toxic landfill cap gets approval

Andy Grimm reports today in the Gary Post-Tribune:

GARY -- After more than 20 years of delay, a 7-square-mile landfill holding a concrete-hard mixture of acid, toxic sludge and mill slag may soon be sealed over.

State Department of Environmental Management officials outnumbered concerned residents at a public hearing Wednesday at the Gary Public Library's main branch. The 90-minute session with IDEM and U.S. Steel officials was one of the final steps to closing Hazardous Waste Disposal Unit No. 5, a landfill at the west end of the Gary Works complex. * * *

For 30 years, oily waste and spent acids from the mammoth mill were mixed with slag and dumped into Unit No. 5, until the EPA demanded the steelmaker close the site or get a permit in the mid-1980s. As U.S. Steel lobbied to cover the 7.8-acre site, then to join the closure with the shutdown of other hazardous sites inside the Gary Works property, the closure languished, [Ruth Jean, IDEM project manager] said. * * *

The landfill's location on a fairly remote part of the site within the fenced borders Gary Works means it poses little threat of human contact, and the waste won't have to be moved to begin closing the site.

The $2.5 million project could begin relatively soon -- just a year or so, Jean said -- once plans are approved. The deadline for public comments was extended 30 days at the meeting to allow Gary environmental officials to review the 260-plus page closure plan.

Kay Nelson, director of environmental affairs for the Northwest Indiana Forum, said the current plan is a marked improvement over the early 1990s versions that called for simply covering the site with tons of slag.

The new plans that call for a leak-proof liner and 30 years of monitoring groundwater. The site, already inside the U.S. Steel fence line, will be fenced off again to keep humans and animals off the former landfill.

"This is a best bet. It's very conservative," Nelson said. "It only took 20 years or so to get to this point."

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Environment

Ind. Law - "It's the Law: Don't provoke anyone to fight"

Ken Kosky's NWI Times' "It's the Law" column June 8th looked at Indiana's law making it illegal to provoke someone to commit battery:

Police say most people know it is illegal to batter somebody, but not everyone is aware that it is also illegal to taunt, challenge or otherwise provoke someone into fighting.

Porter County police recently said they investigated a case in which a man, seeing his wife kissing another man, attacked the man and damaged his home.

Police arrested the accused attacker on charges of battery and residential entry. The man accused of knowingly kissing a married woman was cited for provocation -- as police determined he provoked the attack by his actions.

Indiana law states, "A person who recklessly, knowingly or intentionally engages in conduct that is likely to provoke a reasonable man to commit battery commits provocation."

The Class C infraction carries a fine of up to $500.

Porter County police Sgt. John Kuehl said a person could be cited for provocation if he "got in somebody's face, wouldn't quit and kept hounding him."

Kuehl said he's seen provocation show up in reports from time to time, but it's not commonly enforced.

"I don't think I've ever used it in my 30 years," Kuehl said.

The statute is located at Sec. 3 of IC 35-42-2..

Posted by Marcia Oddi on Thursday, June 11, 2009
Posted to Indiana Law

Wednesday, June 10, 2009

Courts - Supplementing: "Cancer Patients Challenge the Patenting of a Gene"

Supplementing (or expanding) the earlier entries is this article from the June 9th MIT Technology Review by Emily Singer, headed "Off-the-Shelf Genetic Testing On Display: The emerging market of direct-to-consumer genetic testing gets down to business." A quote:

The first annual Consumer Genetics Show, which started today in Boston, highlights some of what's available to today's consumer. A number of genomics startups have booths lined up along the conference hall, offering everything from genetic tests that give individuals insight into their heart health, nutritional requirements, and optimal weight-loss strategies to full genome sequences. Inside the hall, meanwhile, scientists, physicians, and entrepreneurs are grappling with some of the controversies that have grown along with the field. Foremost among these concerns: How good is the information delivered by these tests? How well can people understand the results? And how effectively can they help people manage their health?

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Courts in general

Courts - "White & Case’s ‘Overly Tenacious’ Tom Lauria"

That is the heading of this entry in the WSJ Law Blog, which calls Lauria "the lawyer of the hour." A quote from the end of the entry:

We’ve never heard a lawyer described as “overly tenacious,” but Lauria earned the remark from Judge Michael Lynn of the Northern District of Texas, who presided over the Mirant case. Lynn says that Lauria sometimes focuses “on the justice of his client’s position to the exclusion of the merit of the opposition’s arguments.”

Paul Hastings’ Richard Chesley puts it differently: “I don’t know many lawyers in the bankruptcy practice who take the idea of zealous representation of their client as seriously as he does.”

As for Lauria, he’s chagrined by more than just the outcome of the Chrysler/Fiat situation. He says his experiences of the last month “cause me to worry that there is something very wrong with the system,” and he says he wonders “whether our judiciary is today able to fulfill its constitutional mission to ensure that the rule of law prevails — particularly in the face of perceived crisis.”

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In John Barker v. Office of the Adjutant General of the State of Indiana, an 18-page opinion, Chief Judge Baker writes:

Appellant-plaintiff John Barker appeals the grant of summary judgment in favor of the appellee–defendant Office of the Adjutant General of the State of Indiana (Adjutant General), after the Military Department rejected his request for reemployment and benefits in a civil service position. Specifically, Barker argues that his action against the Adjutant General for reinstatement and for damages was not subject to summary judgment because a genuine issue of material fact exists whether he intended to engage in "career" or "noncareer" military service. The Adjutant General cross-appeals and argues that Barker’s action is barred by the statute of limitations. Concluding that the trial court properly entered summary judgment in favor of the Adjutant General, we affirm.
In D.M. v. State of Indiana , an 8-page opinion, Judge Barnes writes:
Indiana Department of Child Services, (“IDCS”), by counsel, seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the Lake Superior Court‟s (“trial court”) modified dispositional order placing D.M., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility against the recommendations of IDCS. We affirm. * * *

In sum, a thorough review of the record leaves us convinced that the trial court's April 21, 2009 modified dispositional order placing D.M. at Silver State against IDCS's recommendation is supported by clear and convincing evidence. Accordingly, we find no error.

In Rosalyn West v. Betty Wadington, et al. , a 19-page opinion, Judge Barnes writes:
Rosalynn West brought suit in Marion Superior Court against Betty Wadlington, Jeanette Larkins, and Larkins‘s employer, the City of Indianapolis, claiming defamation and invasion of privacy. The trial court granted the Defendants‘ motion to dismiss the complaint. West appeals and claims that the trial court erred in granting the Defendants‘ motion to dismiss because allowing her to proceed would not require the courts to become "excessively entangled" in church politics and doctrines. We reverse and remand. * * *

Based upon the explicit holding of Brazauskas II, we must conclude that the trial court in the present case did have subject matter jurisdiction. The Marion Superior Court has the general authority to hear matters such as West‘s claims for defamation and invasion of privacy. * * *

Wadlington‘s email, although it may have originally been intended to be viewed by Church officials, was sent to a much broader audience of eighty-nine recipients. This email clearly contains some religious accusations which cannot properly be analyzed by a civil court in a defamation suit. However, the email also contains several accusations which could be considered defamatory even in a purely secular context.

The Defendants‘ last argument is that the statements in the letter should be viewed in context, i.e. a letter to church officials about a fellow church member. In other words, the Defendants claim that even those portions of the letter that could be considered in a secular context should not be considered in a secular context because the actual context is a religious one. Although we are not wholly unsympathetic to the Defendants‘ concerns, we are unable to agree. The Defendants‘ argument, taken to its logical conclusion, would allow someone to shield any number of defamatory statements simply by framing them in the context of a religious dispute. We believe that a properly-instructed jury could view Wadlington‘s letter and decide whether the statements are defamatory in a secular sense.

Under these facts and circumstances, West‘s action against the Defendants should not have been dismissed. The judgment of the trial court is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.

NFP civil opinions today (2):

The Term. of the Parent-Child Rel. of C.D., Brezzy D. v. Randolph Co. Dept. of Child Svcs. (NFP)

The Term. of the Parent-Child Rel. of R.C.; and L.M.C. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (5):

Cynthia Carley v. State of Indiana (NFP)

Victor Alfonso Hernandez v. State of Indiana (NFP)

Rogelio Amaro v. State of Indiana (NFP)

Jeffrey Darling v. State of Indiana (NFP)

Dantley Layne v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Jeffersonville misused sex-offender law: Man was barred from son's games"

Yesterday's Court of Appeals decision in the case of Eric Dowdell v. City of Jeffersonville (see ILB summary here) is the subject of a story today by Ben Zion Hershberg of the Louisville Courier Journal. Some quotes:

A Jeffersonville ordinance banning sex offenders from city parks was used unconstitutionally when a man who was no longer required to register with the state was blocked from watching his son play baseball, an Indiana Court of Appeals panel ruled yesterday.

The 2-1 ruling by the panel said the 2006 ordinance excessively punished Eric Dowdell, a Clarksville resident who wanted to watch his son play in Jeffersonville's Little League Ballpark.

Dowdell asked for permission to go to the park more than 10 years after his sexual battery conviction and after his requirement to be listed on the Indiana sex-offender registry expired in 2006.

The panel's ruling applies only to Dowdell, who could not be reached yesterday for comment. But Ken Falk, legal director of the ACLU of Indiana and Dowdell's lawyer, said the City Council should repeal the ordinance. * * *

In 2007 and again in 2008, Dowdell asked the Jeffersonville City Court to give him an exemption from the ordinance. He was denied both times.

The exemption provision had been added to an earlier version of the ordinance to give sex offenders an appeal process that would allow them to watch close relatives play sports in city parks if a judge ruled there was good cause, based largely on their behavior since their convictions. The council believed that allowing such exemptions would show "due process" and help the ordinance withstand legal challenges.

At Dowdell's first hearing, City Court Judge Scott Lewis said he failed to obtain all the documentation of counseling, probation records and other details required under the ordinance to obtain an exemption.

Last year, after Dowdell acknowledged at a hearing that he had faced other charges since his 1996 conviction, including domestic battery and battery to which he pleaded guilty, the exemption request was again denied.

In November, Clark County Superior Court Judge Vicki Carmichael upheld the constitutionality of the Jeffersonville ordinance in a lawsuit filed by Dowdell. That ruling is what the Court of Appeals panel overturned yesterday.

"I wasn't surprised," said City Council lawyer Larry Wilder. He said recent Indiana Supreme Court and Court of Appeals rulings have raised questions about the constitutionality of sex-offender ordinances like Jeffersonville's.

Wilder said he will review the Court of Appeals ruling with the council on Monday. He said it may be possible to base an appeal on the one dissenting panel vote, or it could make sense to rewrite the ordinance to exclude situations like Dowdell's.

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Beware of the Appellate Pitfalls of E-Filing"

Howard J. Bashman introduces his column today for The Legal Intelligencer with this:

Just last week, two different federal appellate courts disposed of separate cases in which parties alleged electronic filing-related tales of woe as the excuse for the untimely notice of appeal filed in each case. In neither case did the federal appellate court find the reasons offered for allowing a late-filed notice of appeal to be persuasive, and thus both cases resulted in dismissals without any review on the merits of the rulings sought to be challenged on appeal. Fortunately, for the rest of us, these two rulings teach some valuable lessons.

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Courts in general

Courts - More on: It's over; Court clears Chrysler sale

Updating yesterday evening's ILB entry, Lyle Denniston of SCOTUSBlog followed up on his report at 7:30 pm on the Supreme Court's action with this commentary at 9:22 pm, headed "Commentary: What’s next on “bailout” law?." It begins:

In what may have been an excess of exuberance, the White House issued a statement about the Chrysler deal Tuesday night. Attributed to an unnamed White House official, it included this assertion: “We are gratified that not a single court that reviewed this matter, including the U.S. Supreme Court, found any fault whatsoever with the handling of this matter by either Chrysler or the U.S. Government….” There are some problems with that, and they are not mere legal technicalities.

The state of what might be called “bailout” law has not been reviewed at all by the Supreme Court, except at a somewhat speculative level of whether there was a chance the Court would rule against the deal if it did rule on the merits. It was not convinced, at this stage, that it would do so if that time came.

Fundamental constitutional issues surround the use of federal funds in the Chrysler bailout, as do a host of questions about using the bankruptcy laws as they were in this case. They were raised in the papers filed at the Court this week, but they were not answered in any final way.

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Courts in general

Courts - Washington Post editorial on the Massey Coal ruling

The Washington Post has this editorial today:

THE SUPREME Court ruled this week that a victorious judicial candidate who receives extraordinary assistance from a donor should step aside from deciding cases that are "pending or imminent" in which the donor has a substantial stake. The decision raised more questions than it answered, but it should serve as a call for states to tighten judicial ethics standards and rethink judicial elections altogether. * * *

After Justice Benjamin's election, Massey appealed a $50 million judgment against it to the West Virginia high court. Massey's opponents in the legal case asked Justice Benjamin to recuse himself, but he declined and twice voted to overturn the judgment. His participation in the case, the Supreme Court ruled, triggered a "probability of bias" and "a serious risk of actual bias" that could have undermined the constitutional right of Massey's opponents to a fair and impartial hearing. In the future, the majority concluded, judges must consider a "contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election" when deciding whether to step aside from a case.

Justice Benjamin should have recused himself. But in fashioning its vague solution, the justices in the majority may have opened the door to a flood of lawsuits in which litigants who don't like the judges assigned to their cases use campaign contributions as a pretext to kick the judges off a case. Chief Justice John G. Roberts Jr., writing for the four dissenters, worried that the proliferation of such challenges could erode the credibility of the judiciary.

It's an understandable concern, but states have ample power to protect the credibility of their judiciaries. They should consider new rules to prohibit judges from deciding cases involving litigants or lawyers who were directly or indirectly responsible for those judges' campaign contributions beyond a certain limit. Even more to the point, states should consider abandoning judicial elections for a merit selection system that better insulates judges from the corrosive influences of money and politics.

[More] Ashby Jones of the WSJ Law Blog has an entry today headed "A Recusal Puzzler: Making Sense of the Massey Ruling."

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Courts in general

Ind. Decisions - Judge McKinney imposes major sanctions in a second trial this year

Recall the case of U.S. v. Cinergy, et al. (see list of ILB entries here), where in a Dec. 18th order "Judge McKinney granted Plaintiffs' Motion for a New Trial Due to Party Misconduct, or, in the Alternative, for Expedited Discovery and an Evidentiary Hearing." In a show cause order, Judge McKinney wrote:

Specifically, the Court concluded that Cinergy and its lawyers committed misconduct when they failed to disclose a consulting agreement (the “Agreement”) Cinergy had entered into with one of its fact witnesses, Robert Batdorf (“Batdorf”); when they allowed Batdorf to testify at trial that he was unemployed and emphasized that misstatement in front of the jury; and when Cinergy relied on the misrepresentation as a theme during the trial.
In the end, the Court issued no disciplinary proceedings against the attorneys involved, writing on 1/12/09 (here):
The publishing of this and prior orders is sufficient. Further proceedings would create time consuming litigation threatening to overtake the issues of the case and draw time and energy away from the Court’s and the attorneys’ task of bringing this litigation to a close with as little delay as possible. No disciplinary action is recommended by this Court.
The new trial, however, was required. It concluded May 29th - here is the ILB entry, including a link to the opinion.

All this is only prelude to an Order on Plaintiff's Motion for Sanctions in a different environmental case, 1100 West, LLC v. Red Spot Paint & Varnish Co, issued by Judge McKinney on June 5th.
Access the 66-page Order here.

From the Order:

[p. 1] This cause is now before the Court on plaintiff’s, 1100 West, LLC, Motion for Sanctions (Docket No. 448) against defendant, Red Spot Paint & Varnish Co., Inc. (“Red Spot”), and Red Spot’s former attorneys, Bose McKinney & Evans, LLC (“BME”). 1100 West alleges that Red Spot and its attorneys purposely withheld documents that were responsive to discovery requests; that Red Spot, through its Federal Rule of Civil Procedure 30(b)(6) (“Rule 30(b)(6)”) witness, Susan Henry (“Henry”), lied or misrepresented the truth about Red Spot’s use of trichloroethylene (“TCE”) and tetrachloroethylene (also known as “perchloroethylene”, herein “PCE”); and that other Red Spot employees, including former Red Spot President and Chairman of the Board, Charles Storms (“Storms”), lied or misrepresented the truth about Red Spot’s use of the chlorinated solvents. 1100 West argues that the pervasiveness of Red Spot’s discovery abuses deserves the most draconian of sanctions: default judgment, striking of experts, and an award of attorneys’ fees and costs. * * *

On May 6 and 7, 2009, the Court held a hearing on this matter because of the seriousness of 1100 West’s allegations. Now, having considered the parties’ briefs and the evidence contained therein, the testimony and evidence presented at the hearing, and the arguments of counsel, for the reasons stated herein, the Court GRANTS 1100 West’s Motion for Sanctions. * * *

[p. 61] By the end of June 2006, BME had enough collective knowledge that Red Spot likely used TCE or PCE in a lab degreaser or parts washer, which was consistent with 1100 West’s expert’s opinion, and that Red Spot had used Super Ad-It, which contained 10% PCE, in a product at a time after Red Spot had implemented the Provision database, to question Storms’ insistence that the chemicals were never used on the property. In addition, BME attorneys had sat through Henry’s depositions, BME attorneys had questioned the thoroughness of Henry’s production of documents, and a BME attorney had physically visited the room where Henry had searched for documents. Even in the face of Storms’ insistence that Red Spot did not currently use TCE or PCE, there was enough historical information for BME to insist that Red Spot dig deeper. Being a zealous lawyer does not mean zealously believing your client in light of evidence to the contrary. Moreover, when BME obtained the EPA RCRA file, there is no excuse for BME’s failure to ensure that “responsive” documents therein did not get to 1100 West.

The Court notes that it may be unusual to sanction a law firm for conduct that violates the Federal Rules of Civil Procedure. However, in this case, where three partners of the firm had knowledge of its client’s apparent disregard for those rules and failed to properly supervise an associate and paralegal who had knowledge of adverse facts that remained undisclosed to the opposing party, the Court can only conclude that the firm must be held accountable under its inherent authority to deter such conduct in the future. See Chambers, 501 U.S. at 45.

In summary, at least starting in the summer of 2006, BME skated the edge of its responsibility to its client, to 1100 West, and to the Court under the Federal Rules of Civil Procedure to disclose relevant information as well as information likely to lead to relevant information. BME also failed in its responsibility to be candid with the Court by making statements in Court filings that it knew were misrepresentations at best and false at worst.

The Court concludes that Red Spot’s conduct can only be described as contumacious, wilful, and egregious. BME compounded the problem by, like a chameleon, becoming indistinguishable from its client and allowing Red Spot, namely Storms and Henry, to evade the truth. Through its defiant conduct, Red Spot has forfeited the right to have the issues determined on the merits. Therefore, the Court must conclude that only the most onerous sanction, default, can remedy Red Spot’s violation of the rules of discovery; Fed. R. Civil P. 37(b)(2)(A)(vi); 37(c)(1); or can remedy Red Spot’s complete disregard of the legal process as protected by the inherent authority of the Court. Greviskes, 417 F.3d at 758-59. The Court, therefore, GRANTS 1100 West’s Motion for Sanctions.

The Court DECLARES, pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 6972(a), and by DEFAULT, that defendant, Red Spot Paint & Varnish Co., Inc., is liable for taking all necessary action to abate and otherwise respond to the aromatic contamination plume and the TCE/PCE contamination plume on plaintiffs’, 1100 West, LLC, property. Plaintiff, 1100 West, LLC, shall file its proposed remedial plan on or before Tuesday, August 4, 2009. On or before Monday, October 5, 2009, defendant, Red Spot Paint & Varnish Co., Inc., shall, in writing, SHOW CAUSE why the remedial plan proposed by plaintiff, 1100 West, LLC, should not be ordered as the remedy in this cause. A Show Cause Hearing is hereby SET for Wednesday, November 4, 2009, at 8:30 a.m., in Courtroom 202, Birch Bayh Federal Building and Untied States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. Defendant’s, Red Spot Paint & Varnish Co., Inc., expert(s) shall only testify as to the appropriateness of the remedial plan; they shall not be allowed to testify as to causation at said hearing.

Further, 1100 West shall be entitled to its attorneys’ fees and costs for all discovery dating from May 23, 2006, to the present, including expert discovery within those dates, and for its attorneys’ fees and costs associated with the October 15 and 17, 2008, hearings, and its Motion for Sanctions. 1100 West shall file its brief in support of its accounting of reasonable attorneys’ fees and costs within thirty days of the date of this Order. Red Spot and BME shall have fifteen days to file a brief in opposition to said accounting. Red Spot and BME shall each pay one half of said reasonable attorneys’ fees and costs as they are determined by the Court, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) and pursuant to the inherent authority of the Court.

Posted by Marcia Oddi on Wednesday, June 10, 2009
Posted to Environment | Ind Fed D.Ct. Decisions

Tuesday, June 09, 2009

Courts - It's over; Court clears Chrysler sale

Lyle Denniston wrote a few minutes ago at SCOTUSBlog in an entry that begins:

Ending four days of intense, round-the-clock and high-stakes legal maneuvering in the Supreme Court, the Justices on Tuesday evening removed a legal obstacle to sale of the troubled auto industry giant, Chrysler.

Insisting that it was denying a postponement “in this case alone,” the two-page order said the challengers had not met their burden of showing that a delay was justified. The order allows a closing of the deal as of next Monday, because it lifts a temporary stay that Justice Ruth Bader Ginsburg had issued on Monday, apparently to give the Court time to ponder the issue.

Another quote:
Justice Ginsburg opted to share the postponement question with her colleagues, and the Court appeared to be unanimous in letting the sale occur with a massive infusion of money from the U.S. government, plus a contribution from the Canadian government, to keep Chrysler from what they said was imminent collapse.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general | Indiana Government

Courts - More on "Foes of Chrysler deal submit new plea" [Updated again]

Well, after the Indiana "foes of Chrysler deal" submitted a supplemental pleading this morning quoting Fiat as saying that it would not walk away from the deal even if the deadline passed, Fiat responded.

Justin Hyde of the Detroit Free Press has the story, headed "Fiat to court: Delay on Chrysler deal too risky." Updated at 3:40 pm, it begins:

WASHINGTON -- Fiat SpA warned the U.S. Supreme Court today that its agreement to buy Chrysler LLC's assets would automatically expire on June 15 and that there was "no assurance" a replacement deal could be reached.

Meanwhile, the Obama administration argued that any delay beyond the June 15 deadline for closing the deal could give Fiat the power to make new demands, possibly pushing Chrysler into liquidation.

The arguments came just hours after lawyers for three Indiana pension funds filed a new argument with the court, contending that Fiat Chief Executive Sergio Marchionne's vow Monday to "never walk away" from the Chrysler pact leaves no reason for the court to rule as quickly as the companies and U.S. government want.

Fiat, Chrysler and the Obama administration had warned that Fiat had a legal right to terminate its part of the pact by June 15 if the sale of Chrysler's assets weren't approved. But in an interview with Bloomberg Television, Marchionne said Fiat would be "patient and let the system work."

"The risk of termination by Fiat if the transaction does not close by June 15 no longer provides a basis for driving the timing of these proceedings," said the funds in a court filing.

Fiat countered that given the complexity of the deal, and a June 30 deadline for the government to stop providing the money to keep Chrysler alive in bankruptcy, reworking the deal "may simply be impossible."

"If the sale transaction is not completed soon, there can be no assurance that a replacement transaction could be structured and agreed that would preserve any aspect of Chrysler as a going concern," Fiat told the court.

And Lyle Denniston of SCOTUSBlog continues with his valuable posts, this one from this afternoon beginning:
In a flurry of new legal briefs, key players in the increasingly tense drama over the fate of troubled automaker Chrysler vied on Tuesday to shape the Supreme Court’s understanding of a June 15 deadline. The key challengers to the sale of Chrysler started with a brief in the morning, and now, the Justice Department, Chrysler and the would-be business spouse of a “new” Chrysler — Italian automaker Fiat — have joined in the debate. (Their new briefs are here and here and here, respectively.) * * *

The Indiana funds, in a somewhat triumphant though brief filing, contended Tuesday that they had undermined the claims that Fiat would back out and the deal would collapse if it is not closed by next Monday. Its evidence was a brief wire story on Bloomberg News quoting a Fiat executive as saying it “would never walk away” from the pact.

By early afternoon, the three main defenders of the rescue plan joined the new battle, with Fiat saying that the benefit funds’ new thrust was “unwarranted.” The deal, by its own express terms, “will terminate automatically” if not closed “on or before June 15.” (emphasis in the original).

There is only one exception to that — an agreement by Chrysler and Fiat to extend the deadline if government approvals have not occurred — “is inapplicable because those approvals are already in hand,” Fiat said.

If a legal assertion that was clearly intended to be more forceful than a quotation in a news story, Fiat’s lawyers wrote: “If the sale transaction is not completed soon, there can be no assurance that a replacement transaction could be structured and agreed that would preserve any aspect of Chrysler as a going concern.”

[Update] The NYT Dealbook Blog today has "An Interview With Indiana’s Treasurer." A quote:
Mr. Mourdock has pressed his opposition to the Chrysler sale perhaps more vociferously than anyone else. A group of hedge funds that, like the Indiana funds, held portions of Chrysler’s $6.9 billion in secured debt disbanded days after the carmaker filed for bankruptcy.

The battle hasn’t been cheap, Mr. Mourdock concedes: the Indiana funds, which represent teachers and police officers, have spent $2 million in legal fees pursuing their objections. They have been represented by the law firm White & Case, although in a potential Supreme Court hearing they will be represented by Indiana’s solicitor general. White & Case, notably its tenacious restructuring head Thomas Lauria — who was memorably derided as a “terrorist” by a member of the Obama administration’s auto task force — will consult in crafting that case.

[Update #2] Tony Mauro writes late this afternoon in The Blog of Legal Times in an entry headed "More Briefs, But No Action in Chrysler Case." Some quotes:
The briefing today focuses on how hard and fast the June 15 deadline is. In earlier filings with the Court, both the Justice Department and Chrysler warned that the deal would collapse and calamity would ensue if legal complications prevented the June 15 sale from taking place.

But earlier today, Indiana Solicitor General Thomas Fisher alerted the justices to a quote in a Bloomberg News Service story from the CEO of Fiat saying he would not walk away from the deal even if the June 15 deadline is not met.

Without denying the quote's accuracy, Thomas Cullen, head of the Jones Day team representing Chrysler, called that statement "hearsay" in a brief filed today, and again warned that the sales agreement will automatically terminate on June 15 if it is not allowed to go through. Cullen allowed that Fiat might try to renegotiate the deal after June 15, but probably at less favorable terms. In any event, he asserted, "Given Chrysler’s precipitous state, every day past June 15 increases the risk that Chrysler’s business will not be able to restart successfully."

Fiat itself also chimed in, with a brief by Steven Holley of Sullivan & Cromwell in New York. Also without denying the quote from CEO Sergio Marchionne, Holley said the urgency of allowing the sale to take place increases every day.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general | Indiana Government

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

For publication opinions today (1):

Eric Dowdell v. City of Jeffersonville , a 27-page, 2-1 opinion, Chief Judge Baker writes:

At issue herein is an ordinance that prohibits convicted sex offenders from entering public parks in Jeffersonville. Though offenders may seek very limited exemptions, the exemption procedure is extraordinarily burdensome and virtually illusory. The defendant was charged, convicted, served the sentence for his crime, and completed his registration requirement before the ordinance was enacted. As applied to this defendant, we find that the ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution.

Appellant-defendant Eric Dowdell appeals the trial court‘s order entering summary judgment in favor of appellee-defendant City of Jeffersonville, Indiana (the City) on Dowdell‘s complaint for injunctive and declaratory relief. Dowdell argues that the trial court erred by concluding that the City‘s ordinance prohibiting all sex offenders from ever having unrestricted access to the City‘s parks and recreation areas is constitutional. Specifically, Dowdell argues that the ordinance is facially unconstitutional pursuant to Article I, Sections 1, 12, and 24 of the Indiana Constitution and that it is unconstitutional as applied to him pursuant to the same constitutional provisions because he is no longer required to register as a sex offender. Finding that the ordinance is unconstitutional as applied to Dowdell, we reverse. * * *

II. Facial Challenge

In large part, Dowdell‘s facial challenge relies upon arguments that are identical to those made in Doe v. Plainfield, which concerned a Plainfield ordinance very similar to the Ordinance at issue herein. 893 N.E.2d 1124 (Ind. Ct. App. 2008), trans. pending. At oral argument, Dowdell‘s counsel acknowledged that though he disagreed with the result in Doe, he is bound by its precedential value. Under these circumstances, we decline to address Dowdell‘s facial challenge and will instead turn to his argument that the Ordinance is unconstitutional as applied to him.

III. As Applied

Dowdell raises a new argument not considered by the Doe court, namely, that the Ordinance is unconstitutional as applied to him. Unlike a facial challenge, an as applied challenge "ask[s] only that the reviewing court declare the challenged statute or regulation unconstitutional on the facts of the particular case." Sanjour v. E.P.A., 56 F.3d 85, 92 n.10 (D.C. Cir. 1995).

Dowdell argues that the Ordinance is unconstitutional as applied to him under the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. * * *

Dowdell was charged, convicted, served the sentence for his crime, and fulfilled and completed his registration requirement before the Ordinance was enacted. We hold that as applied to Dowdell, the Ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.

The judgment of the trial court is reversed.

BARNES, J., concurs.
CRONE, J., dissents with opinion. [which begins, on p. 22] I respectfully dissent. I agree with the majority that the intent-effects test provides the appropriate analytical framework for addressing ex post facto claims under the Indiana Constitution. See Wallace, slip op. at 10. However, when I weigh the seven factors listed in Mendoza-Martinez, I reach a different conclusion regarding whether the Ordinance at issue is unconstitutional as applied to Dowdell. * * *

To summarize, of the seven factors identified as relevant to the inquiry of whether this Ordinance has a punitive effect despite legislative intent that it be non-punitive, I find that one supports the conclusion that the Ordinance is punitive in effect as to Dowdell, and one slightly favors treating the effects of the Ordinance as punitive when applied here. The remaining five, including the excessiveness factor, point in the other direction. Accordingly, I would conclude that as applied to Dowdell, the Ordinance does not violate Indiana‘s constitutional prohibition on ex post facto laws. The predominantly non-punitive nature of the Ordinance convinces me that there is no violation of Article I, section 24 of the Indiana Constitution. Consequently, I would affirm the entry of summary judgment in favor of the City.

Matt Thacker of the Jeffersonville News & Tribune has posted a brief story this afternoon on the Dowdell decision. And the ILB has had a long list of entries on the Dowdell cases.

NFP civil opinions today (1):

Eric Abernathy and Karen Abernathy v. Erie Insurance Exchange (NFP) "Based upon the foregoing discussion and authorities, we conclude that the trial court properly applied set-offs to the Abernathys’ damages award for the payment from Davis and for medical benefits payments. With regard to the set-off for worker’s compensation benefits, we conclude that the trial court should allow a set-off only for the
amount the Abernathys did not repay to Eric’s employer. "

NFP criminal opinions today (4):

State of Indiana v. Heather Owens (NFP)

Lezlea E. Leeper v. State of Indiana (NFP)

Mia Taylor v. State of Indiana (NFP)

Theodus Mayes v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Legal quirk lets anyone sue firms over old patents"

Matthew Barakat of the AP has this fascinating story that begins:

ALEXANDRIA, Va. (AP) — Look carefully at the lid to your coffee cup or the handle of your disposable razor. A recent ruling on an obscure, century-old statute has opened the door for people familiar with the finer points of patent law to sue companies that stamp their products with expired patent numbers.

A couple of sharp-eyed lawyers are shooting for a financial windfall through the nearly forgotten law, and the Justice Department says they have a case.

The ruling in federal court in Alexandria appears to be the first of its kind upholding the constitutionality of a law allowing anyone to sue in the name of the government if they have evidence that a company is guilty of "false markings" — namely, claiming patent protections that have expired or never existed.

The person who sues gets to keep half of any money awarded, with the rest going to the government. Damages of up to $500 per violation are allowed, which for mass-produced items with "Patent" stamped on every product could theoretically run into billions of dollars.

Despite the financial incentive to sue, lawyers in the Virginia case say no one other than businesses with a financial stake availed themselves of the law.

No one, that is, until Matthew Pequignot.

A Washington patent attorney, Pequignot (PECK'-eh-naw) noticed the patent marks on the lid to his daily cup of coffee, did some research and found that the lid's maker, Solo Cup Co., was continuing to claim patent protections for disposable lids that had expired nearly 20 years ago. Depending on a variety of factors, most patents expire after a set period of time, often after 14 to 20 years.

In 2007, he sued Highland Park, Ill.-based Solo Cup, which makes the red and blue plastic cups seen at parties and barbecues and also supplies disposable cups and lids to retailers like Starbucks and McDonald's.

Pequignot says the lawsuit addresses a problem in the patent community: companies using false marks to make products look impressive or to scare off competitors, who must do significant legal work to research the patents. He likens false patent marks to placing "No trespassing" signs in public park lands.

Pequignot followed the Solo Cup case by suing razor company Gillette, owned by Cincinnati-based Procter & Gamble Co., and Arrow Fastener Co. Inc., a manufacturer of staplers and similar products. The case against Saddle Brook, N.J.-based Arrow has been withdrawn, but Pequignot retains the right to revive it.

More from the story:
U.S. District Judge Leonie Brinkema concluded in March that the provision allowing Pequignot to sue in the name of the government, though rare, is constitutional. Called "qui tam" statutes, most have been repealed because of concerns they were being abused.

Despite Brinkema's ruling, there are still concerns over the law's use. In May, a federal judge in New York tossed out a similar lawsuit filed by a patent attorney who sued Brooks Brothers over expired patents on its "original Adjustolox" bow tie.

The judge ruled that if the plaintiff, Raymond E. Stauffer, wants to sue on behalf of the United States, he must prove the government suffered harm, a standard he said Stauffer failed to meet.

Brinkema, on the other hand, said in her ruling that the U.S. suffered harm by the very fact that its laws were being broken.

The Justice Department is siding with Brinkema. On May 29, the government moved to intervene on Stauffer's behalf and said the New York judge's analysis is flawed.

Neil Friedman, the lawyer who represented Brooks Brothers, likened Stauffer and Pequignot to "bounty hunters" looking to collect an easy payoff. He said he is aware of several similar lawsuits that have been filed since the Pequignot and Stauffer's cases.

Pequignot, for his part, says he does not expect an avalanche of false markings lawsuits, despite the fact that Stauffer and some others have already followed in his footsteps. He said that, even as a patent attorney, it took him many hours of research to be able to file his lawsuit.

Dennis Crouch, a law professor at the University of Missouri and author of the Patently-O blog, said lawsuits like Pequignot's had been "almost unheard of" before his filing. He said the effect could be significant, though, since he estimates there are millions of false markings in the marketplace.

In her ruling, Brinkema suggested Congress may want to close the loophole.

"It is likely an accident of history that (the law) survives as one of the few remaining qui tam statutes in American law," Brinkema wrote in her opinion which grudgingly acknowledged Pequignot's right to move forward with his case.

With the law's constitutionality upheld, Solo Cup says it plans to offer a "good-faith" defense that it relied on lawyers' advice and did not intend to deceive.

Here is the May 1st entry from Patently-O blog, complete with links to some of the documents. See also this June 6th entry, and this one from Nov. 9, 2008.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general

About this Blog - First law firm signs on as ILB supporter

Thanks to Wieneke Law Office, LLC, our first ILB Law Firm Supporter. Check The Law Firm Supporters of the ILB link in the upper right-hand corner of this page.

Note that all applications received in June get posted immediately, although the Quarter begins July 1st.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to About the Indiana Law Blog

Courts - "Foes of Chrysler deal submit new plea"

A new "Supplemental Statement in Support of Stay Application" was filed with the Supreme Court this morning, signed by Thomas M. Fisher, Solicitor General (counsel of Record), Office of the Indiana Attorney General.

Access it here, via SCOTUSBlog, along with Lyle Denniston's newest entry.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general | Indiana Government

About this Blog - ILB included in Library of Congress Web Archives

Here it is.

From the "Collection Overview":

The Legal Blawgs Web Archive is a selective collection of authoritative sites (associated with American Bar Association approved law schools, research institutes, think tanks, and other expertise-based organizations) that contain unique, born digital content. These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international. Sites are domestic and in English, although foreign sites may be included later in the duration of this project. Additional sites may be selected incrementally. Note: This collection was previously named the Legal Blogs but was changed December 06, 2007 to Legal Blawgs. Previous documentation may refer to the former name.

This collection is part of a continuing effort by the Library of Congress to evaluate, select, collect, catalog, provide access to, and preserve digital materials for future generations of researchers.

Collection Period: March 1, 2007 -- ongoing.

Number of Sites: 90 (here is the list).

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to About the Indiana Law Blog

Ind. Decisions - Two more NFP COA decisions reclassified

Since this ILB post on May 12th, two more NFP opinions have been reclassified as For Publication. They are:

Here is something to note. In the Hollingsworth case, for instance, the Court's order on 6/5/09 reads:




If you access the case now (see link above), the opinion is file-stamped 4/24/09 and there is no indication that it was ever deemed "NFP." If you access the case through other links, such as the one used by the ILB when it first posted the case when issued 4/24/09, you also will no longer see the NFP warning on the opinion. It is as if it never existed.

However, for a period of several months (three in the case of the Mays opinion), the strictures of Appellate Rule 65 applied to the opinion.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Golf carts a possibility on Oldenburg streets"

Updating this ILB entry from Aug. 12, 2008, Debbie Blank reports today in the Batesville Herald Tribune:

Persistence may pay off for Dan Weigel, who asked the Oldenburg council to legalize golf carts on town streets Aug. 4, 2008.

Weigel made his plea again June 1, noting, “The state just passed it.” House Bill 1483, effective July 1, “prohibits an individual from operating a golf cart on a highway, except when a city or town has adopted an ordinance authorizing the use of golf carts on the city's or town's highways.”

The bill stated a local ordinance must require a person operating a golf cart to hold a driver's license and may require that a cart display a slow-moving vehicle sign or a red or amber flashing light. Golf cart drivers are financial responsible.

The bill defines a golf cart as a four-wheeled electrically-powered motor vehicle with a maximum speed of 35 miles per hour. The cart must be equipped with headlights, front and rear turn signal lights, tail lights and stop lights; reflectors; exterior or interior mirrors; brakes; a windshield; vehicle identification number; and safety belts for each seat.

A fine assessed for a golf cart traffic violation will be deposited into the town’s general fund, according to the bill.

Member Dennis Moeller wondered if driving while intoxicated laws would apply. Weigel believed so as cart drivers must follow all traffic laws.

Clerk-Treasurer Cindy Laker will ask town attorney Tom O'Connor to review the new law. It also will be given to Deputy Eric Moenter, who is swapping jobs with Marshal Scott Barnhorst, tentatively Aug. 1. Barnhorst told the council he has work conflicts with another job.

Golf carts will be on the agenda at the July 6 meeting.

See this long list of earlier ILB golf cart entries.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Indiana Law

Ind. Courts - Justice Boehm to meet with Star Editorial Board

An Indianapolis Star blog called "The Board" has this item, posted by Beth Murphy:

Everyone wants an audience with the Star Editorial Board. Here's a list of the scheduled Ed Board meetings for June:

Indianapolis Power & Light CEO Ann Murtlow to discuss cap and trade, 4 p.m. Tuesday June 9.

Indiana Supreme Court Justice Ted Boehm to discuss judicial retention issues
at 2 p.m. Friday, June 12.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Indiana Courts

Courts - More on the Massey Coal ruling

Updating this ILB entry from yesterday, Howard Bashman of How Appealing has collected together a long list of stories today on the ruling - access it here.

Here are some quotes from Warren Richey's story in The Christian Science Monitor:

Washington - The US Supreme Court has established a broad, new constitutional standard requiring judges to step aside in cases involving a perceived probability of judicial bias.

The 5-to-4 decision was announced on Monday in a case involving a justice on the West Virginia Supreme Court.

Justice Brent Benjamin had refused to step aside in a case involving a company that spent $3 million to help defeat an incumbent justice, whose seat was filled by Justice Benjamin.

The Supreme Court ruled that Benjamin violated the due process rights of the litigants before the West Virginia high court when he declined to recuse himself in that case.

The majority justices on the US high court viewed the company's independent campaign expenditure as a significant factor in Benjamin's electoral success. They concluded the effort created a perception of a "probability of actual bias" when the company later appeared before Benjamin and the other justices.

"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the consent of the other parties – a man chooses the judge in his own cause," Justice Anthony Kennedy wrote in the majority opinion.

In a dissent, Chief Justice John Roberts warned that the decision unleashes an ill-defined standard upon America's judiciary, requiring judges to step aside whenever someone perceives a "probability of bias."

"This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be," the chief justice said. "The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."

The case, Caperton v. Massey Coal Company, was being closely followed because it offered the justices the opportunity to address the issue of when judges must step aside and decline to hear a case because of potential or perceived conflicts of interest.

It arises at a time when many judicial elections in the United States are being swamped with millions of dollars in special-interest campaign money that some analysts say threatens to undercut public confidence in the judiciary.

The case is well known for another reason. It was the real-life inspiration for John Grisham's bestselling 2008 legal thriller, "The Appeal."

Under the federal judicial system and in some states, judges are appointed and serve for life. But in 39 states, judges must run for office and stand for election to retain their seat.

During such elections, judicial candidates can accept financial contributions from the public, including parties that might later appear before them as lawyers, plaintiffs, or defendants. In addition, sitting judges who have ruled in controversial cases may find themselves targeted by groups, companies, or individuals seeking their removal from the bench.

All those issues play a role in the Caperton case. * * *

Justice Kennedy said in his opinion that the facts in the West Virginia case were extreme. He said the new constitutional standard announced by the court would come into play only rarely. "Most disputes over disqualification will be resolved without resort to the Constitution," he said.

Chief Justice Roberts disagreed. His dissent includes 40 questions raised by the majority ruling. Among them: "How much money is too much money?" and "Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?"

Roberts continues: "Today's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)."

Kennedy said the majority justices did not question Benjamin's own subjective determination that he had acted properly and with fairness. But the Supreme Court was now applying an objective test.

"We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent," Kennedy wrote.

The inquiry, he said, must focus on the campaign contribution's size compared with the total spent in the election, and the apparent effect that the money had on the outcome of the election.

"Applying this principle," Kennedy said, "we conclude that Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case."

In a separate dissent, Justice Antonin Scalia said the relevant question is whether the court does more good than harm by expanding a constitutional mandate for recusal "in a manner ungoverned by any [discernible] rule."

Dahlia Lithwick, jurisprudence columnist for Slate, has a column today headed "The Great Caperton CaperThe Supreme Court talks about judicial bias. Kinda."

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general

Courts - Still more on what is a "debt relief agency" for purposes of the BAPCPA

Updating this ILB entry from Dec. 17, 2008, Marcia Coyle of The National Law Journal writes today under the headline "Justices to Weigh Constitutionality of Controversial Bankruptcy Reform Act." Some quotes:

The U.S. Supreme Court has agreed to resolve a long-simmering debate over the constitutionality of provisions in the controversial bankruptcy reform act of 2005 that include lawyers as "debt relief agencies" and restrict the advice they can give to clients.

The high court granted review in two cases, consolidated for argument next term, involving the Bankruptcy Abuse Prevention and Consumer Protection Act and an Edina, Minn., law firm.

A number of other challenges are pending.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general

Courts - More takes on the Chryler situation [Updated]

Indianapolis Star business columnist John Ketzenberger has a front-page story today headed "Treasurer bucks critics, crowd: 'I'm not doing this for attabogs'". It begins:

You might call Indiana Treasurer Richard Mourdock the $6 million man.

That's the amount of money Indiana is haggling over in the billion-dollar Chrysler bankruptcy. It is money that Mourdock said should go to the pensions of cops and teachers, but the legal wrangling has already cost $2 million and thrown doubt on the government-brokered bankruptcy.

Mourdock's case was strengthened Monday when the U.S. Supreme Court called a timeout, but the first-term treasurer can't outrun the pointed criticism coming from autoworkers, Chrysler and the federal government, who fear delay will kill a sale to Fiat.

"I'm not doing this for attaboys. I'm not doing this for criticism," said Mourdock, a Republican from Evansville. "I'm doing this because I took an oath of office."

Indiana got into the fight because last summer the Indiana State Police Pension Fund, the Teachers Retirement Fund and the Major Moves Construction Fund bought $42.5 million worth of secured Chrysler bonds. The state paid 43 cents on the dollar for the bonds, a hefty discount that reflected how risky the bonds were, but it was a show of support for a company important to the state.

"I'm getting e-mails from people in Kokomo and at Chrysler now that say that I'm trying to cover up a bad investment," Mourdock said. "Wait a minute -- we invested in you."

Chrysler sold about $6.9 billion worth of the bonds, most of it held by major investment banks and hedge funds. By law, the bond buyers would be first in line to receive compensation if Chrysler declared bankruptcy. Even last summer that was unthinkable.

But the unthinkable happened last month, and when the federal government dictated terms, the secured bondholders were told they'd get 29 cents on the dollar, or $6 million less than Indiana paid for the bonds it bought in July.

Indiana's loss is miniscule compared with the major banks and funds that stood to lose billions, yet the state was the only bondholder to object. Why?

Daniel Howes' of the Detroit News has a column today headed "In Supreme Court, Chrysler bankruptcy paves new legal road." It begins:
It doesn't take a law degree to understand why the fate of Chrysler LLC and its ostensibly life-saving deal with Fiat SpA of Italy now rests with the U.S. Supreme Court.

We're making new law here, this Obama administration-driven attempt to speed insolvent automakers through bankruptcy court and, at the same time, to unilaterally rearrange the order of creditors, their status and what -- if anything -- they stand to recoup from the process.

The relevant facts: Chrysler's bankruptcy, barely five weeks old, hinges on delivering more value and more of the company to such unsecured creditors as the United Auto Workers at the expense of secured creditors like three Indiana pension funds and similar bondholders.

Whatever the wisdom of investing public pension money in the dodgy future of Chrysler, the Indiana funds' managers invested in bonds secured by the assets of the company -- meaning they would be at the front of the line for repayment should Chrysler go bankrupt. But they aren't in the Obama workout, which is why they're suing despite enormous political pressure to swallow their losses gladly and shut up.

"By refusing to make the relatively small sacrifices that would avert a calamity," Rep. John Dingell, D-Dearborn, said in a statement, "the pension funds will instead create a great catastrophe, which is the same kind of short-sighted thinking that got us into the Great Depression."

From later in the column:
Team Obama should welcome a review by the Supreme Court. Otherwise, its heavy-handed auto bailouts risk being de-legitimized by the taint of potential illegality and "crony capitalism" that rewards friends (the UAW) at the expense of the political undesirables (the investor class, post-global financial meltdown).

But that's not all. The auto task force's pressure tactics with Chrysler's secured bondholders and the unsecured bondholders in bankrupt General Motors Corp. send a chilling message to the capital markets -- namely, the rules governing investments don't apply if they clash with political goals.

How, exactly, would these emerged-from-bankruptcy companies raise private capital in the months and years ahead? Who would invest in a "new GM" and Chrysler-Fiat, given the pounding suffered by the Indiana funds, creditor Perella Weinberg and others who resisted the government cram-down?

Successful automakers consume large amounts of capital every year to finance operations, develop product and do advanced research. If the likes of the Indiana pension funds or private equity players won't plump for GM and Chrysler, they'll once again become cash-starved and remain dependents of the federal government.

[Updated at 9:26 am] Via SCOTUSBlog.com, in an entry headed "Context for the temporary stay order," Troy D. Cahill, counsel in Akin Gump’s Supreme Court and appellate practice, provides an explanation of the temporary stay order.

Posted by Marcia Oddi on Tuesday, June 09, 2009
Posted to Courts in general | Indiana Government

Monday, June 08, 2009

About this Blog: Been following the ILB closely today?

Please think about becoming a supporter. Check out the application form and the new Supporter Page where you could show your support.

Note that the Supporter Page is now readily accessible to readers by clicking "The Law Firm Supporters of the ILB" in the upper right-hand corner of this page.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to About the Indiana Law Blog

Courts - Ginsburg temporarily blocks Chrysler deal [Updated]

So writes Lyle Denniston of SCOTUSBlog, who has been totally on top of all this. But he notes that it was only a "temporary hold":

Her order, however, simply gives her or the full Court more time to ponder whether to postpone it further, or allow it to go forward.

It would have taken the votes of five members of the Court to grant a full postponement.

I expect SCOTUSBlog will post a link to Ginsburg's order shortly.

[More] Denniston has now added: "Ginsburg’s brief, unexplained order said only that the bankruptcy court’s decisions approving the sale were “stayed pending further order” by her or the Court."

Here is the story from the NY Times.

Here is an overview by Tony Mauro at the Blog of Legal Times.

And Mr. Denniston has expanded his SCOTUSBlog entry, plus he has added a link to the Order, such as it is -- i.e. one page, one sentence.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Courts in general | Indiana Government

Courts - Justice Shepard quoted on Massey Coal ruling

Nathan Koppel of the WSJ Law Blog contacted Indiana's Chief Justice for his comments on the SCOTUS ruling in Caperton v. A. T. Massey Coal (see ILB entry from earlier today). The resultant entry is headed "Massey Coal Ruling Getting Thumbs Up in Judicial Circles." Some quotes:

In a nutshell, the court ruled Monday Monday that a West Virginia justice shouldn’t have participated in state court decisions overturning a $50 million judgment against Massey Coal, whose chief executive had been a major financial supporter of the justice’s campaign for office. The decision effectively creates a new constitutional recusal standard for judges who take contributions to fund their election campaigns. * * *

Randall Shepard (pictured in the entry), chief justice of the Indiana Supreme Court, says it was wise of the majority to focus not just on the amount of a particular contribution in determining whether recusal is warranted, but its size relative to the total amount of contributions in a particular campaign. “The problem with adopting bright-line rule is that what may be a small [judicial] contribution in Texas may be a big contribution in smaller states,” Shepard says.

The judge was particularly happy that the majority opinion includes language endorsing the view that there can be limits placed on the sorts of pledges and promises judges can make when running for office. That is important language, he says, because there is litigation ongoing about whether it is constitutional to restrict judges’ campaign pledges. This part of the majority opinion, he says, could also affect the upcoming Sotomayor confirmation hearings.

The Massey ruling, Shepard adds, also sends an important message to the general public. “If you were to walk up and down the street and say to most people, ‘Would it be okay for a defendant who has lost a $50 million judgment to try to buy himself a vote on the Supreme Court, so he doesn’t have to pay the $50 million,’ not many citizens would pause. They would say, ‘Of course that is not fair.’”

See this ILB entry from Jan. 19, particularly near the end where the amicus Brief for the Conference of Chief Justices in Support of Neither Party. is discussed.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Courts in general

Ind. Courts - Madison's Jefferson County Courthouse Fire Ruled Accidental

From the Madison Courier:

The fire that severely damaged the Jefferson County Courthouse on May 20, has been ruled accidental.

According to authorities, the fire spread from an area on the north face of the courthouse where a worker unintentionally started a small fire while he was soldering a copper downspout to the building's gutters.

"The air flow carried the fire to the cupola," said Madison Fire Chief Steve Horton at a press conference held today.

The Bureau of Alcohol, Tobacco, Firearms and Explosives, the Indiana State Fire Marshal's Office, the Madison Fire Department and the Madison Police Department all participated in the investigation.

Travelers Insurance is still investigating the fire, said Horton.

A story by Brian Jones dated June 4th is headed "Document restoration could cost $600,000." From the story:
Restoring documents damaged in the Courthouse fire could cost nearly $600,000, county officials said Wednesday night when they met to discuss salvage plans.

"We have some hard decisions to make," Julie Berry, president of the Jefferson County Commissioners, said. "We do have insurance limitations."

The Jefferson County Board of Public Records will play a leading role in determining which records are restored and which are not. * * *

Servpro, a fire and water damage restoration company, and Electronic Restoration Services estimated that the cost to freeze-dry, deodorize and clean one cubic foot of documents is $75.30.

More than 8,000 cubic feet of documents have been removed from the Courthouse since the fire May 20.

It is not known what portion of the 8,000 cubic feet of documents will require all three steps of the restoration process included in the estimate.

The documents that were not damaged by water might not have to go through the freeze-drying process, which could greatly reduce the total cost of the document restoration.

In the total estimate, the cost of freeze-drying was $381,676.50, cleaning was $149,143.50 and deodorizing was $60,720.

"My suggestion to the committee is to prioritize," said Jim Corridan, director of the Indiana Commission on Public Records and state archivist.

"You're going to have to make an attempt to preserve your long-term records," Corridan told the board. "We don't want to burden you with $600,000 or million dollars to save records that have a short retention."

During the meeting, Todd urged county officeholders to go through their retention records and determine what documents don't need to be restored.

Retention schedules are different for every county office. Almost everything recorded in the recorder's office is supposed to be kept forever, while many documents in the treasurer's and auditor's offices can be destroyed after a period of time.

Todd also said that documents that had not been frozen before mold set in will be photocopied to preserve the information they contain.

The Jefferson County Board of Public Records normally meets annually in September to oversee what county documents are destroyed after county officeholders submit listings of what documents their offices are not required to maintain any longer.

County Attorney Wil Goering has asked Electronic Restoration Services to not attempt to restore any of the documents that had been housed in the Courthouse basement until officials can determine which documents have already been microfilmed.

Smith said the board usually offers county records to the Jefferson County Historical Society before they are destroyed.

Todd said the board might meet again before September if the members need to decide which documents they will not attempt to save.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Indiana Courts

Law - "Law firms are especially vulnerable to embezzlement"

Leigh Jones of The National Law Journal has a long article today on the topic. Some quotes:

Law firms are especially vulnerable to embezzlement for a number of reasons, said Michael Downey, a partner in the St. Louis office of Chicago-based Hinshaw & Culbertson. His practice focuses on legal ethics and professional service risk management. Embezzlement happens most frequently within solo and small firms, Downey said. (About 80 percent of the nation's 1.1 million attorneys work in law firms of 50 attorneys or fewer, according to the latest information available from the American Bar Foundation).

Attorneys tend to delegate business matters to employees and provide too little oversight, he said. In small firms, one person often handles accounts payable and receivable. "It's someone whom they rely on for almost everything," Downey said. Lawyers are more interested in practicing law and too seldom trained to run businesses, he said; they're eager to hand over financial responsibilities to staff.

In addition, attorney ethics rules require lawyers to maintain separate accounts for clients' funds, meaning that large sums of money sit idle in office accounts, tempting workers desperate to cover a mortgage payment or a child's tuition bill. Busy lawyers also tend to cut corners when conducting background checks and following up on an applicant's references, Downey said.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to General Law Related

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

For publication opinions today (1):

In Wright Tree Service v. Juan Hernandez, an 11-page opinion, Judge Kirsch writes:

Wright Tree Service (“Wright”) appeals from an adverse determination of the Indiana Worker’s Compensation Board (“the Board”) affirming the Single Hearing Member’s Order awarding death benefits to the widow of Juan Hernandez (“Hernandez”) who was an employee of Wright at the time of his death. Wright raises the following issue for our review: whether the Worker’s Compensation Board erred by finding that Hernandez’s death was compensable under the Worker’s Compensation Act (“the Act”) as “a death by accident arising out of and in the course of his employment” with Wright. We affirm.

NFP civil opinions today (1):

Terry Reilly and Paula Mitchell, Joseph M. Reilly v. City of Indianapolis, Grady Brothers, Inc. and John Rutledge (NFP) - "Terry Reilly and Paula Mitchell (“Parents”), the parents and natural guardians of Joseph M. Reilly (“Mitch”), their minor son, appeal from the trial court’s order granting Grady Brothers, Inc.’s (“Grady”) motion for summary judgment in an action for damages sustained by Mitch, a sixteen-year-old pedestrian, who was struck by a vehicle in the middle of a paving project being completed by Grady pursuant to a contract with the City. Parents present the following issue for our review: whether the trial court erred by granting Grady’s motion for summary judgment where there are material issues of fact as to breach of duty and proximate causation. We reverse and remand. "

NFP criminal opinions today (6):

State of Indiana v. Jason M. Benson (NFP) - "In this discretionary interlocutory appeal, the State of Indiana appeals the trial court’s grant of Jason M. Benson’s motion to exclude his toxicology report, which revealed that his BAC was .20%, that the State turned over to him approximately 150 days after the discovery deadline.

"Because as a general matter the proper remedy for a discovery violation is a continuance and there has been no showing in this case that the State’s actions were deliberate or otherwise reprehensible and there is no prejudice to Benson because there has been no trial, we find that a continuance was the proper remedy here. We therefore conclude that the trial court abused its discretion in excluding Benson’s toxicology report."

Bennie R. Spicer v. State of Indiana (NFP)

Marshall Cobb, Sr. v. State of Indiana (NFP)

Theron L. Bailey v. State of Indiana (NFP)

Roy Roman v. State of Indiana (NFP)

Justin M. Robertson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Ind. App.Ct. Decisions

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

In Bailey, et al. v. E. Mitchell Roob, Jr. (SD Ind., Judge Barker), a 24-page opinion, Judge Flaum writes:

Years ago, a group of plaintiffs and the Indiana Medicaid program’s administrators agreed to certain terms for the handling of applications to the disability program in Indiana: most relevant for present purposes was a concession that the program would compile a complete twelve-month medical history before reaching a decision on the application. Now, several members of the affected class want to hold the program administrators in civil contempt for violating that portion of the consent decree. They claim that in too many cases the program is relying on summary forms rather than compiling an applicant’s complete medical history.

The district court rejected the motion because the plain- tiffs had not demonstrated by clear and convincing evi- dence that the defendants were in violation of the terms of the consent decree. Appellants now challenge that ruling, citing three errors. First, they claim the district court improperly tasked them with demonstrating that the plaintiffs had not been reasonably diligent in following the demands of the consent decree. Second, they argue that the district court should have held that the evidence proffered below was a clear and convincing demonstration that the program administrators were violating the decree. Third, they argue that the district court erred as a matter of law by holding that 20 C.F.R. § 416.912(d), a provision of the regulations for the Sup- plem ental Security Incom e disability program incorporated by reference into the consent decree, did not require a full collection of medical records.

For the following reasons, we affirm the district court’s ruling.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - Solicitor General argues Indiana debt holders issues are out of the reach of the courts

That according to this most recent entry by Lyle Denniston of SCOTUSBlog, which begins:

The Obama Administration argued Monday that no court, including the Supreme Court, has the authority to hear a challenge by Indiana benefit plans to the role the U.S. Treasury played in the Chrysler rescue, including the use of “bailout” (TARP) funds. The Indiana debt holders, U.S. Solicitor General Elena Kagan wrote, simply have no right to raise that issue, thus putting it out of the reach of the courts.

The government’s brief opposing a plea to delay the Chrysler sale can be downloaded here. The main case at the Court is Indiana State Police Pension Trust, et al., v. Chrysler LLC (application 08A1096).

All of the legal filings expected in the Chrysler case are now before Justice Ruth Bader Ginsburg, as Circuit Justice, and thus she or the full Court could now act on the three applications to postpone the sale of most of the auto company’s assets to a new company representing a combination with Fiat, the Italian auto company.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Courts in general | Indiana Government

Courts - More on "W.Va. mining case could shape U.S. judicial races"

Updating this ILB entry from March 2nd, and this long list of other ILB entries, the SCOTUS has today issued a 5-4 ruling in the case of Caperton v. A. T. Massey Coal. Here is an early AP report.

Here is the opinion.

[More] David Stout of the NY Times has now posted this story: "Justices Tell Elected Judges Not to Rule on Major Backers ."

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Courts in general

Law - "A Study in Why Major Law Firms Are Shrinking "

The NY Times had a lengthy story June 5, reported by Alan Feuer, on the down-sizing of the white shoe firm. A quote from the very long story:

“People are shellshocked,” said one top partner at the firm who, like many of its current and former lawyers, spoke on condition of anonymity for fear of retribution. “If they survived the first two rounds, they’re happy to have a job, but are still very nervous. And if their phones don’t ring, if their work doesn’t come back with a vengeance, they fear they aren’t long for this world.”

As the apocalypse on Wall Street ripples out into the larger economy, a thick red tide is lapping at the once-impregnable foundations of New York’s corporate law firms, threatening to turn the industry — and with it, some iconic city characters — into an endangered species.

A few top firms, like Thatcher, Proffitt & Wood, established before the Civil War broke out, have already gone under in the flood; the carnage of layoffs has touched even sterling names like Proskauer Rose, Dewey & LeBoeuf and Clifford Chance.

In the first quarter of 2009, demand for legal services in New York decreased by nearly 10 percent over 2008, according to the Hildebrandt International Peer Monitor Index. At least 10,000 employees at major firms across the country have lost their jobs so far this year, according to the macabre but wildly popular “Layoff Tracker” run by another blog, lawshucks.com.

At the root of the law-firm crisis, legal experts say, is the credit crisis, which has pulverized the need for traditional practice areas like structured finance, mergers and acquisitions and private-equity transactions — the very things that have always kept a high gleam of polish on the city’s whitest shoes. The downward trend has been unrelenting: fewer Wall Street deals mean fewer Wall Street lawyers.

In addition, the WSJ Law Blog today features the Times' story.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to General Law Related

Law - "Antiabortion Efforts Move to the State Level: Legislatures Often Mandate Restrictions"

Updating this ILB entry from June 1, which rundown of state laws currently on the books, Peter Slevin of the Washington Post has a lengthy story today on state law involvement. A few quotes:

Rules requiring that a woman be offered the chance to view a sonogram are designed to make her think again. Laws imposing a waiting period after a first visit to a provider have the added effect of raising the obstacles and the costs, especially for poor and working-class women, who are the ones most likely to have an unintended pregnancy.

In states from South Dakota to Texas where the fights are waged, supporters of a woman's right to abortion feel increasingly embattled. Some doctors and clinic personnel feel threatened, particularly since last week's slaying in Kansas of physician George Tiller, the nation's best-known abortion provider. Others say they simply feel beleaguered.

"The states are the battlegrounds and certainly the testing grounds of new kinds of restrictions," said Gretchen Borchelt, senior counsel at the National Women's Law Center, which defends abortion rights. "State legislatures can be more creative in what they're trying to push and see what works."

"We tried every which way, and we were successful in the state way," said Terri Herring, head of Mississippi's Pro-Life America Network. She calls ever-stricter regulations a matter of common sense and creative strategy.

"All-or-nothing means nothing," Herring said. "Incremental means something."

What it means in Mississippi, one of the most restrictive states in the country and a model for antiabortion forces elsewhere, is that a woman seeking an abortion must go twice to the clinic, at least 24 hours apart. A girl younger than 18 requires the consent of both parents or a judge's signature. Public money is available for very few abortions.

Such rules are known as TRAP laws, for Targeted Regulation of Abortion Providers.

"We've got a glut of bills we fight every year," said Felicia Brown-Williams, a Planned Parenthood staffer in Hattiesburg. "We spend the first two months in sheer and utter panic that one of these bills is going to get past us."

Planned Parenthood, which provides abortions in clinics across the country, does not provide them in Mississippi. The reason, said a spokesman, is "the amount of regulations and the cost." Five other clinics have closed, leaving only the Jackson Women's Health Organization, founded by clinic operator Susan Hill.

"We've got rules like crazy," Hill said.

Herring and her colleagues are pleased but not satisfied.

"Mississippi clearly has done all that we can within our current legal culture to end abortion here," Herring said, "and yet we have one remaining abortion clinic."

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to General Law Related

Environment - Impact of massive coal ash spill, nearly 6 months later

Updating this long list of ILB entries on coal ash, retention ponds, and the massive spill in Tennessee last December, Mike Blackerby of the Knoxville News reports today in a story that begins:

KINGSTON — Their health has been wrecked, their property values have plummeted, and the absence of culpability by oversight agencies is staggering.

So contend the Roane County residents on hand to greet U.S. Rep. Eddie Bernice Johnson, D-Texas, who came to Roane County on Sunday on a fact-finding mission — and got an earful.

The congresswoman said she came to East Tennessee to gain a better understanding of the scope of December’s breach of a retention pond next to the Tennessee Valley Authority’s Kingston Fossil Plant that sent 5.4 million cubic yards of coal fly ash spilling into the Emory River and surrounding area.

Johnson, along with TVA and U.S. Environmental Protection Agency representatives, heard impassioned pleas from several in the audience of 75 people at the Kingston Community Center.

Several Roane County residents recounted how their lives and futures have been inexorably altered by the events of Dec. 22.

That’s when a 40-acre retention pond failed and flooded more than 300 acres with the toxic fly ash brew, displacing homeowners and ruining property.

“This is a bit more serious than we anticipated,” said Johnson, who heads the House Subcommittee on Water Resources and Environment that has oversight of TVA.

“We didn’t know the frustration is at this level. I think we now have a real good understanding of how the community is being affected. I feel like the reports we’ve gotten have been incomplete. I will give you my commitment that we will look into what we heard today.”

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Environment

Court - More about the Indiana Attorney General's entry into the Chrysler case

Updating this ILB entry from yesterday, discussing the Indiana Attorney General's entry into the Indiana funds' challenge to the Chrysler settlement:

The June 6th application for a stay, addressed to Justice Ginsburg of the SCOTUS, is signed by both the New York/Miami counsel, and the Office of the Indiana Attorney General.

Yesterday I addressed several questions to the OAG: Does this representation involve a change of heart, is it a US Supreme Court requirement, had the Treasurer solicited the State AG's involvement earlier? The OAG's public information officer, Bryan Corbin, has this morning sent these answers:

Marcia: In addition to the prepared statement I sent you [ILB - quoted here], here are the answers to your questions:

The State Treasurer has consulted with the Office of the Attorney General since we are his counsel. We were not able to handle the unique bankruptcy work, and so we gave consent for him to retain outside counsel. But we were able to assume the work for seeking a stay.

OAG would not always represent quasi-governmental entities such as TRF, but the Major Moves fund brought a constitutional client into the case.

If a stay is granted, then we will review our ability to represent TOS in seeking cert and before the Supreme Court. The amount of time afforded may have some impact on OAG's decision.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Courts in general | Indiana Government

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

Updating this "Heads Up" about continuation of the ILB I posted on April 27th, now is your opportunity to become an annual ILB supporter.

What will be the benefits of becoming an ILB annual supporter?

Non-benefits of supporting the ILB?

Become an ILB supporter today and help assure the ILB's continuation for the benefit of both the legal community and the public.

Contact me if you have questions or simply download, complete and mail the ILB Supporter Agreement, accessible from the Supporters of the Indiana Law Blog page.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to About the Indiana Law Blog

Ind. Courts - "Courts seeing more 'pro se' cases filed"

Jeff Parrott of the South Bend Tribune reports today that "Judges and court officials say a growing number of people are going to court without attorneys. The trend has affected all types of civil law, but divorce cases the most." More from the story:

Because St. Joseph County court officials have not kept accurate statistics on pro se cases over the years, data on local trends were unavailable. But statewide, the number of pro se filings jumped nearly 50 percent from 2002 to 2007, from more than 247,000 to more than 367,000, according to the Indiana Supreme Court.

The trend prompted the state court in 2006 to publish a guide on managing pro se cases for county courts. And this year the court produced a video to help pro se litigants navigate the legal process and has posted a copy online at www.youtube.com.

Loretta Oleksy, family court project manager at the Indiana Supreme Court Division of State Courts Administration, said the agency hopes the video will help courts run more efficiently.

"We were hearing more and more from trial court judges about the difficulties with self-represented litigants coming in and not knowing the paperwork to file ... or understanding that you have to serve the other side."

In this recession, it seems more people deem hiring an attorney as a "luxury," Oleksy said. Also, young adults today are more comfortable with the "do-it-yourself" concept, eased by all of the information available on the Web.

The story gives a good look at the fact that self-representation may be harder than it looks:
St. Joseph County Chief Superior Court Judge Michael Scopelitis said he sees the trend every day.

"I've been on the bench since October 2000 and the number of pro se litigants has gone up dramatically," Scopelitis said. "A day doesn't go by when we don't have at least one."

Most pro se litigants, primarily in divorce cases, simply cannot afford to pay an attorney, but Scopelitis said he does see some who have plenty of income. They sometimes concern him the most because they underestimate the complexity of dividing a couple's assets and liabilities.

A couple's house, for example, is typically titled in both spouses' names. Will the deed be properly transferred into one of their names?

When there is a retirement plan or life insurance policy, will anyone be sure to remove the ex-spouse as beneficiary?

When the divorcing couple plans to split a spouse's retirement benefits, do they realize that their benefits administrator needs to see a qualified domestic relations order from the court?

"All of this has consequences that are not immediate, but are years or decades after the marriage has dissolved," Scopelitis said.

Scopelitis attributed the rise in pro se cases partly to "anti-lawyer" Web sites that mislead people into believing divorce is so simple.

"There's a lot of propaganda out there bashing the legal profession," he said.

People can buy a divorce decree online for much less than it costs to pay lawyers.

"What they're not getting is the legal advice and warnings about all of the legal things you need to do besides signing a divorce decree," the judge said.

St. Joseph Circuit Court Magistrate Larry Ambler, whose caseload consists almost exclusively of divorce cases, agreed that parting couples who go pro se often think resolution will be simpler than it is.

"Many times they think they have an agreement, but then I'll ask a question, such as, 'Who's taking care of medical care for the kids?' and there's not an agreement," Ambler said on a recent morning in between divorce case hearings. "She'll say, 'He will,' and he'll say, 'She will,' and then there's a controversy."

Ambler estimates that 30 percent to 40 percent of the time, he advises pro se litigants to seek advice from attorneys.

"When there's children involved and property involved, that's often when it's critical for them to have legal representation," Ambler said.

St. Joseph Superior Court Judge Jenny Manier, seated in the court's Mishawaka division, said pro se cases sometimes require her to walk a fine line. As a judge, ethical constraints prohibit her from giving legal advice to parties who come before her, but she also must keep her court running efficiently.

"That's a real delicate balance," said Manier, in her 11th year on the bench. "People will show up for a provisional hearing and they don't even know what that means. I can lead them through the statutory questions they need to answer in a dissolution, but I can't represent them or advise them."

For background, begin with this ILB entry from March 23rd.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next [Updated]

This week's oral arguments before the Supreme Court (week of 6/8/09):

Thursday, June 11th

Next week's oral arguments before the Supreme Court (week of 6/15/09):

Next Tuesday, June 16th

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 6/8/09):

Tuesday, June 9th

Wednesday, June 10th

Next week's oral arguments before the Court of Appeals (week of 6/15/09):

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 Monday, June 08, 2009
Posted to Upcoming Oral Arguments

Courts - Chrysler lender responses now availble

SCOTUSBlog now has posted links to the responses of the defenders of the Chrysler rescue plan to the pleas to halt the sale while the Supreme Court reviews its legality. In addition, last evening Lyle Dennison listed the "Key points of Chrysler plan defense." A sample:

* The harsh consequences will also fall on the Indiana funds leading the challenge. If the plan goes through, however, they will get $12.2 million on a “distressed investment” that they bought for $17 million.

* The Indiana creditors have not offered to put up a bond as a condition for getting the plan delayed by the Supreme Court. Such a bond would have to be at least $1.2 billion to protect Chrysler, and that figure does not include damages from lost jobs and losses to suppliers and other industries affected.

Here is a long list of earlier ILB entries on the Chrysler bailout and the Indiana challenge.

Greg Gardner reports in the Detroit Free Press:

Chrysler, Fiat and the U.S. Treasury can close the sale creating a new Chrysler at 4:01 p.m. today, unless Supreme Court Justice Ruth Bader Ginsburg decides the court should hear an appeal from three Indiana pension funds that are objecting to the deal. * * *

If Ginsberg decides the case should be heard, the Chrysler-Fiat deal would be prevented from closing until a hearing and consideration by the nation's highest court. That could result in a serious delay of the deal, which Fiat would like to close by June 15.

"There's only two times in my life when I have seen the Supreme Court act quickly," said Jennifer Shaw, a retired bankruptcy attorney who has closely followed the Chrysler case. One was the Bush v. Gore recount, she said, and the other was whether President Richard Nixon had to comply with U.S. District Judge John J. Sirica's order that Nixon turn over his tapes.

The sale could close immediately, though, if Ginsburg decides the case will not be heard.

Early Sunday morning, lawyers for a group of citizens with product liability claims against Chrysler filed a brief with Ginsburg that supports the Indiana pensioners' case. Under terms of the sale, the new company, led by Fiat, would face no risk from product liability lawsuits filed against Chrysler related to vehicles produced or sold until the day the sale closes.

Posted by Marcia Oddi on Monday, June 08, 2009
Posted to Courts in general | Indiana Government

Sunday, June 07, 2009

Courts - Update on: Indiana pension funds' application for immediate stay filed with Supreme Court [Updated]

Early this morning, in this ILB entry I noted:

[Update at 7:70 am] Perhaps I am wrong, but I don't recall seeing the Indiana Attorney General's name on earlier documents.
Among the questions one might ask: Does this representation involve a change of heart, is it a US Supreme Court requirement, had the Treasurer solicited the State AG's involvement earlier?

A few minutes ago the ILB received this news release titled "Attorney General Greg Zoeller's statement on filing the State Treasurer's application for stay to the U.S. Supreme Court":

INDIANAPOLIS -- Indiana Attorney General Greg Zoeller issued the following statement today concerning the Attorney General's Office filing an application for a stay to the United States Supreme Court on behalf of our client, State Treasurer Richard Mourdock:

"The Treasurer of the State is a consitutional officer who is 'responsible for the safekeeping and investment of moneys and securities paid into the state treasury' (under Indiana Code 4-8.1-2-1), and I will represent him as a client to the best of my ability," Zoeller said.

"We have a good-faith basis upon which we seek the Supreme Court's relief and we intend to zealously represent our client," Zoeller added.

[Updated at 9:22 pm]] Tony Mauro of the Blog of Legal Times has a good summary of the current status of the Chrysler challenge, one that highlights the new involvement of the Indiana Attorney General. A quote:
Taken together, the challenges have hurdles including standing to overcome, and the Supreme Court may not want to stand in the way of an arrangement devised by the political branches that its supporters say will save thousands of jobs. But the applications also point out that if the high court does not intervene now, a deal that raises major questions relating to bankruptcy law and the power of the executive branch will go unreviewed, and the questions unanswered.

"The public is watching and needs to see that, particularly, when the system is under stress, the law will be honored and an independent judiciary will properly scrutinize the actions of the massively power executive branch," wrote Indiana Solicitor General Thomas Fisher, who sought a stay on behalf of three state funds that will lose out if the sale goes through. He says the deal could constitute a "sub rosa Chapter 11 reorganization plan" that violates the priority status of first-lien creditors in bankruptcy, and a misuse of so-called TARP funds. Also on the Indiana brief is a team of lawyers from White & Case led by partner Thomas Lauria. The case is titled Indiana State Police Pension Trust v. Chrysler LLC.

Posted by Marcia Oddi on Sunday, June 07, 2009
Posted to Courts in general | Indiana Government

Ind. Courts - "Veto of done deal could yet be undone"

Here are some earlier ILB entries on HEA 1491 and Governor Daniels veto of the bill which would abolish merit selection of St. Joseph Superior Court Judges and also would create a 6th Cout of Appeals panel.

Today, an opinion piece by Jack Colwell of the South Bend Tribune:

A multi-million-dollar deal in the Indiana General Assembly involves playing politics with St. Joseph County courts and creating three new, pricey but unneeded state judgeships.

It's a done deal.

But thanks to Gov. Mitch Daniels, who wanted no part in a scheme that would have brought delight and dollars to former Illinois Gov. Rod Blagojevich, the deal could be undone.

The dealers still could prevail, however, if they override Daniels' veto.

Here's the deal:

  • A bill to scuttle the merit selection system that has worked well in the county's Superior Courts for more than 35 years was passed in the House. It would replace merit appointment with an election process similar to that which has brought such stability to the South Bend school board. Some St. Joseph County legislators want the change for various political reasons, including desire to get their hands on judgeships for themselves, their families or their friends. They claim their motive is love for democracy. Lust is involved.

  • The bill was amended in the Senate to add provision for three new Court of Appeals judges and 16 additional staff members. The conservative cost estimate is $2 million a year initially. To handle those courts, millions more would be needed in the future for the attorney general's office and public defenders. Additional judges aren't needed. But some powerful legislators in the Republican-controlled Senate want them — because they would be appointed by a Republican governor — as a price for going along with the St. Joseph County court change passed by the Democratic-controlled House.
The bill in done-deal form was approved by both chambers.

Blagojevich would have been part of the deal, seeking bids for judgeships.

Mitch Daniels was not part of the deal.

He vetoed it.

In his veto message, Daniels said:

"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 measure of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County."

There has been no scandal on those courts since the system was implemented after horrors with some elected judges. Recently in neighboring counties, elected judges have been removed, suspended or forced to resign — three in Elkhart County, two in LaPorte County.

Sure, an occasional decision is controversial. There is no controversy-free system.

Maybe electing judges from a bunch of names, some sounding familiar, would bring better judges.

Maybe Tony Zirkle, the controversial perennial candidate who sometimes comes close, could win in a crowded race.

Maybe having judges funded and backed by special interests, political bosses and attorneys who practice before them would improve justice.

Maybe 30-second TV spots would provide all that's needed on judicial qualifications.

In his veto message, the governor also made clear he wanted no part of any Blagojevich-style deal for more appointments.

Said Daniels:

"The addition of another panel of 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."

Appeals Court judges aren't seeking additional help. They're doing just fine.

Joel M. Schumm, professor at Indiana University School of Law in Indianapolis, put it this way:

"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 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."

The professor said the court "is rightfully proud of being the most efficient appellate court in the country," with average age of pending cases falling from 1.6 months in 2007 to 1.1 months in 2008.

Schumm calls the done-deal bill "government waste at its counterintuitive worst."

But in Indiana, it only takes a majority vote to override a veto of such waste.

Posted by Marcia Oddi on Sunday, June 07, 2009
Posted to Indiana Courts | Indiana Law

Law - Still more on: Chicago Mayor Dailey privatizes City parking meters

Updating this ILB entry from June 1, a Chicago Sun-Times analysis today by Fran Spielman, city hall reporter, begins:

Chicago's parking meter mess could be the tipping point that awakens the sleeping giant otherwise known as the City Council.

No issue in recent memory -- not even the Hired Truck scandal or Mayor Daley's infamous midnight destruction of Meigs Field -- seems to have resonated as much with voters as the aftermath of the city's 75-year, $1.15 billion lease of its parking meters and the steep schedule of rate hikes that came with turning them over to private hands.

It was bad enough that drivers had to stuff their pockets with quarters to pay the higher meter rates.

But then, when the transition to the private company got bogged down by broken pay-and-display boxes and overstuffed and improperly calibrated meters that overcharged, Daley and aldermen who gave the deal quick approval had a crisis on their hands.

Inspector General David Hoffman piled on by concluding that the city could have gotten nearly $1 billion more if it had held on to the meters and just raised the rates itself.

And instead of approving the meter deal, after just two days of debate, to plug a $150 million budget gap, Hoffman said aldermen should have conducted an independent analysis and considered other alternatives.

Last week, the City Council ran for cover by decreeing that any future sales or leases of major city assets be required to get longer consideration.

That could be just the start of an aldermanic revolt, some on the Council say.

Posted by Marcia Oddi on Sunday, June 07, 2009
Posted to General Law Related

Courts - Alert reader finds Judge Sotomeyer is confused by Indiana University's two law school campuses

On March 20-21, 2003, Judge Sonya Sotomeyer was at "Indiana University, Maurer School of Law" where, she writes, "I delivered guest lectures to Professor James Torke’s Civil Procedure II Class, taught a criminal law class, and spoke at a Pro Bono Awards and Recognition Reception."

This was in answer to Question 12(d) of the 173-page response the Judge summitted to the Senate Judiciary Committee. It is found on p. 35 of the document.

The same answer is repeated nearly verbatim at the bottom of p. 69 of the questionnaire. In this second entry, the address is included: "Indiana University, Maurer School of Law, 211 South Indiana Avenue, Bloomington, IN".

However, both entries are in error, in that Judge Sotomeyer was actually:

at the Indiana University School of Law - Indianapolis on March 21, 2003 (see photo) at the Pro Bono Program’s "Decade of Giving" Celebration. She spoke about the importance of attorneys giving back to the community through pro bono projects and suggested that there are opportunities for pro bono work in every area of legal practice.
The sharp reader who alerted me to this mistake in campuses notes:
She was actually in Indianapolis, where Professor Torke (whose name is mentioned) taught for decades.
Recall the ILB entry of May 28th, titled "Ind. Law - What to call the two Indiana University law schools now?"

BTW, the same reader, after reviewing Judge Hamilton's application for the 7th Circuit post, sent me a note in March pointing out that Hamilton's statement on p. 55 of his questionaire, that "Judge Gerald Zore has retired, and his current address is unknown," was of course incorrect.

Posted by Marcia Oddi on Sunday, June 07, 2009
Posted to Courts in general | Indiana Courts | Indiana Law

Courts - "Key points of Chrysler challenge" [Updated]

Lyle Denniston of SCOTUSBlog lists the key points of the Indiana benefit funds’ objection to the Chrysler sale, along with the key points of the consumer organizations' challenge.

[Update at 9:42 am] Denniston has now posted "Analysis: Big hurdle for Chrysler challenge." Here is a sample:

The part of the challenge that raises the issue with the highest visibility and the broadest impact – the legality of the U.S. Treasury’s use of economic recovery “bailout” funds to finance the deal — depends upon a group of Indiana worker benefit plans having a right to raise that question in court. No court has yet ruled on whether the Treasury broke the law, because none has found it had jurisdiction to do so.

While the Indiana lenders were allowed to contest the plan for other reasons, they were denied “standing” by a bankruptcy court to object to Treasury’s decisive role. They would not be hurt by the plan, the judge found, or at least not as much as they would be if Chrysler simply collapsed and went out of business.

In the appeal that the lenders will file shortly in the Supreme Court, following up their application for a postponement of the deal, a fundamental issue will be this one of “standing.” Because the Constitution’s Article III limits the federal courts to ruling on actual “Cases or Controversies,” a would-be court challengers must be able to show that they would be hurt, that the other side is responsible for that harm, and that a court ruling in their favor would cure it. If they can’t make those points decisively, the court has no authority to hear their complaint.

Here are links to all the SCOTUSBlog entries on the challenge.

[Still more] Still more from Denniston, this entry headed "Chrysler and accidents yet-to-be."

Posted by Marcia Oddi on Sunday, June 07, 2009
Posted to Courts in general | Indiana Government

Courts - Indiana pension funds' application for immediate stay filed with Supreme Court

Lyle Denniston of SCOTUSLaw Blog posted this lengthy entry at 12:08 am this morning and updated it just a few minutes ago, at 6:15 am. The update indicates that "A group of consumer organizations early Sunday joined the Indiana benefit funds in urging the Court to block the Chrysler sale."

Denniston's inital entry begins:

The historic legal and financial struggle over the survival of one of America’s Big Three automakers — Chrysler — reached the Supreme Court just minutes before midnight Saturday. It is the first government rescue effort since last fall’s onset of a deep economic crisis to reach the Justices. For all of its legal complexity, this first challenge is at its core a simple complaint that the federal government has gone too far to manipulate the private marketplace, using powers not given to it by Congress.

Three Indiana public employee funds that provide benefits for teachers, police officers and others asked for a delay of the Chrysler deal in this application.

Their lawyers said an appeal will follow shortly, to be handled “on as expedited a schedule as the Court finds necessary.”

The SCOTUSBlog post includes links to the application and appendix.

The 6:15 am update reads:

A group of consumer organizations early Sunday joined the Indiana benefit funds in urging the Court to block the Chrysler sale. The application can be found here. The groups, led by the Center for Auto Safety, said they would file a petition for review by Tuesday. Meanwhile, the Second Circuit Court has indicated it expects to issue on Monday one or more opinions explaining its approval of the sale.
[Update at 7:70 am] Perhaps I am wrong, but I don't recall seeing the Indiana Attorney General's name on earlier documents.

Posted by Marcia Oddi on Sunday, June 07, 2009
Posted to Courts in general

Saturday, June 06, 2009

Ind. Courts - "Allen County judges getting snippy: The flurry of curt e-mails about filing might have root in caseload numbers"

This column by Kevin Leininger of the Fort Wayne New-Sentinel is long, but too much fun not to read in full. A sample:

Whatever the motives, the Allen County Courthouse has for the past two months provided the stage for a not-so-funny farce that could be called “Judges Behaving Badly” - a performance that probably never should have opened in the first place.

Allen County Prosecutor Karen Richards probably didn't know what she was starting early this year when a review of Indiana law persuaded her that cases involving the seizure of money and other goods linked to illegal behavior - about 200 a year - should be filed as criminal cases in Allen Superior Court, not as civil cases as had been the practice. But her seemingly inconsequential decision ignited a behind-the-scenes skirmish between civil and criminal judges that put Clerk Therese Brown in the middle of a verbal crossfire highlighted by a series of e-mails not entirely consistent with normal judicial restraint and decorum.

In an April letter to Randall Shepard, chief justice of the Indiana Supreme Court, Brown explained her Catch-22: Civil Administrative Judge Nancy Boyer and Criminal Administrative Judge Fran Gull had both directed her to file the cases in their respective courts. What should she do?

On May 13, Supreme Court Executive Director Lilia Judson wrote back to say that, although the law is indeed murky, the cases in question should be filed civilly. Acknowledging that “this is not my forte,” Brown asked the judges and others for their opinion.

End of the story? The 75 contested case files on Brown's desk this week suggest otherwise - a legal limbo that has heated up the courthouse e-mail system.

“If you have difficulty understanding what … Judson has determined … I would respectfully suggest that you simply telephone (her) and I'm certain her answer will be easy to follow,” Civil Judge Dan Heath wrote Brown. “At some point you have to follow the law … You now have the appropriate cover and should begin to act accordingly.”

Criminal Judge Ken Scheibenberger shot back: “Why must you display such arrogance?”

“I personally take offense you would depict me that way. My comments may be the result of exasperation, but not arrogance. We have been extremely patient,” Heath replied.

To which Levine added in an e-mail to Brown: “You are correct that this is not your ‘forte,' nor is it within the purview of your duties to seek the concurrence of the judges … to implement what the Supreme Court has determined … It was you who wrote (the Indiana Supreme Court) to address a problem, and you have received an answer.

“Notwithstanding all of the above, I want you to know that I personally have the utmost appreciation for the work that you and your staff do.”

To which the obvious question is: Why would control of a relative handful of mostly minor cases generate such responses from people trained to be dispassionate?

Posted by Marcia Oddi on Saturday, June 06, 2009
Posted to Indiana Courts

Courts - More on: 2nd Circuit Refuses to Block Chrysler’s Sale

Updating yesterday's entry, the WSJ ($$) has comprehensive coverage here.

The Baltimore Sun has a story today headed: "Md. joins states challenging the closing of Chrysler dealerships: Gansler says Chrysler must heed state's protections involving closings."

Bllomberg's Tiffany Kary and David Glovin write about a potential appeal of the Indiana case to the Supreme Court:

Chrysler LLC creditors lost an appeals court bid to block the carmaker’s sale of its best assets to a group led by Italy’s Fiat SpA and plan to appeal the decision to the U.S. Supreme Court.

A three-judge panel of the court delayed the Chrysler sale until 4 p.m. June 8 -- or until the Supreme Court says the sale shouldn’t be delayed. The judges affirmed the decision of the U.S. bankruptcy court, which said the only alternative to the sale was liquidation of the company. The appeals court will issue an opinion later, explaining their ruling. * * *

A creditor bid for Supreme Court intervention would likely go first to Justice Ruth Bader Ginsburg, who handles emergency matters from the New York-based federal appeals court that ruled yesterday. She could act on her own or refer the request to the full nine-member court.

The votes of at least four of the nine justices are required for the court to consider the appeal. If the Supreme Court doesn’t act by 4 p.m. on Monday, Chrysler and Fiat will be able to close the deal.

Here is an article by Noeleen G. Walder of the New York Law Journal, dated June 8th, headed "2nd Circuit Ruling in Chrysler Bankruptcy Upholds Sale of Assets to Fiat." It includes links to relevant documents.

Posted by Marcia Oddi on Saturday, June 06, 2009
Posted to Courts in general

Courts - "The ideological history of the Supreme Court, 1937-2007"

In graphic form. Check it out, here.

The Washington Post remarks:

And this very cool graphic on the ideological history of the court gives a sense of how liberal or conservative each Supreme Court justice was between 1937 and 2007 -- as well as what the ideological trajectories on the bench have been.

Posted by Marcia Oddi on Saturday, June 06, 2009
Posted to Courts in general

Environment - More on "Court Declares Indiana Right to Farm Act Constitutional"

The Indiana Court of Appeals Jan. 12th decision in Donald J. Lindsey and Jacquelyn Lindsey v. Johannes DeGroot, et al, summarized here by the ILB, is the subject of a story this week in Hoosier Ag Today, written by Andy Eubank:

A legal ruling in Indiana earlier this year is being called a landmark decision on right to farm act issues across the U.S. The Lindsey family of rural Huntington County filed a nuisance suit in late 2003. They claimed the nuisance included manure smells and flies from the neighboring DeGroot Dairy operation. The Indiana court of appeals rejected the Lindsey's argument and declared the Indiana Right to Farm Act constitutional. That law was passed in 1981 to shield farmers from nuisance law suits.

Attorney, and former Kansas cattle and wheat farmer, Todd Janzen, of Plews Shadley Racher & Braun in Indianapolis, litigated the case for DeGroot. He told Hoosier Ag Today, "This is one of the few cases in the whole United States where courts have examined this particular point and upheld right to farm acts on constitutional grounds. So I think it is certainly an important case for Indiana farmers, because it means if you build a farm or expand an existing farm in an established agricultural area, you cannot be judged a nuisance by a court of law just because your farm creates those smells, and sights, and sounds that are commonly associated with farming."

The Indiana case is very significant because the Iowa Supreme Court had previously invalidated the Iowa Right to Farm Act, calling it government taking without compensation. Janzen said,"The logic of the Iowa Supreme Court was that if you allow one land owner to place sounds and smells from their land onto the land of another, and then you create a statutory immunity for that person, then in essence you have taken someone's property without compensating them."

IC 32-30-6, Nuisance Actions, includes IC 32-30-6-9, commonly referred to as "freedom to farm" or "right to farm" language..

The docket in the Lindsey v. DeGroot case shows the entry "Case Closed," dated April 2, 2009,

For another view, the ILB on January 17, 2007 quoted at length a post by Marty Lucas of BigEastern.com titled "Time to restore nuisance law property rights." The ILB post begins:

Marty would like to see "a roll-back of a key state statute on nuisance law to the pre-2005 language." He explains:
By specifying that changes in size, ownership and technology cannot be considered a 'change' under the statute, the 2005 amendment [ to IC 32-30-6-9(d)] created a blanket exemption from nuisance liability for CAFOs. Said another way, building a CAFO is defined as a continuation of existing agriculture regardless of any change in the 'size' and 'technology' of the operation. So when huge barns, manure pits and dead critter compost piles replace a bean field, nothing has changed within the eyes of the law. It's just more farming. Justice, in this case is not only blind; it also has a poorly developed sense of smell. [Continue reading here.]

Posted by Marcia Oddi on Saturday, June 06, 2009
Posted to Environment | Ind. App.Ct. Decisions

Environment - "Plans for hog farm are on hold: State lacks regulation, rural neighbors assert"

Following up on its story from June 4th, quoted in this ILB entry, the Fort Wayne Journal Gazette has a thoughtful editorial today headed "State needs rules for livestock farms":

A spokeswoman for the Indiana Department of Environmental Management was being earnest this week when she said the agency was committed to ensuring farms meet all legal and technical requirements. The problem, and it’s a big one, is that the only regulations IDEM enforces concerning animal feeding operations are federally required water permits governing pollution.

The state, in the process of massive expansion of pork production, needs to play regulatory catch-up on the issue of large-scale animal feeding operations. Gov. Mitch Daniels should have ensured the needed environmental and planning protections were in place before he pushed for doubling pork production in Indiana.

The proposed 4,000-hog farm close to New Haven is a good example of the problem of balancing agricultural economic development within the state while protecting neighboring property owners and public health interests. The plans for that farm are voluntarily on hold while the farmer, Doug Bradtmueller, works with neighbors to address their concerns about manure management at the farm.

Even the most vocal neighbors opposing the proposed hog farm can’t say enough complimentary things about Bradtmueller and their belief he will manage the farm well and act in good faith toward his neighbors. But their concern, and it is valid, is that state environmental oversight of farms amounts to nothing more than a rubber stamp that could endanger rural communities.

Concentrated animal feeding operations are capable of more efficient land use, protecting animals from diseases and predators, as well as improved earning potential for farmers when they are well managed. But the potential for environmental damage escalates as the livestock numbers increase. Animals produce manure. Some manure is a valuable fertilizer; large quantities create the potential for pollution that can contaminate drinking water and endanger public health.

Most farmers, including those running large-scale industrial agricultural operations, want to be good stewards and good neighbors. But some regulations are needed to give communities tools to protect property values, public health and the environment in the few instances when a farmer isn’t demonstrating a willingness to protect the community.

There are no state regulations for air quality, odor, traffic, appropriate zoning or land use for animal feeding operations. Guidelines are needed at both the state and local level. IDEM should have more authority to protect against environmental threats, and local governments need the ability to ensure large-scale farms locate in areas where they are an asset and not a threat.

Posted by Marcia Oddi on Saturday, June 06, 2009
Posted to Environment

Friday, June 05, 2009

Courts - 2nd Circuit Refuses to Block Chrysler’s Sale

Updating this entry from this morning, Michael J. de la Merced writes late this afternoon in the NY Times:

A federal appellate court on Friday rejected a bid by Indiana state pension funds to block Chrysler’s sale to Fiat, but left open the door for the Supreme Court to rule on the matter.

The United States Appeals Court for the Second Circuit in Manhattan put the Chrysler deal on hold until Monday afternoon to allow the funds to make their appeal to the Supreme Court.

The appeal was filed by lawyers for the Indiana pension funds, which objected to the sale because they were seeking more compensation for the Chrysler secured debt they hold. A federal bankruptcy court in Manhattan had previously approved the sale, which would transfer most of Chrysler’s assets to a newer, healthier company run by a group led by Fiat.

Richard Mourdock, Indiana’s treasurer, had argued that “Indiana retirees and Indiana taxpayers have suffered losses because of unprecedented and illegal acts of the federal government.”

Amandine Ambregni reports here for AFP:
A US appeals court Friday cleared the way for Chrysler to exit bankruptcy under an alliance with Italy's Fiat, dismissing a challenge from Indiana's state pension funds.

A three-judge panel from Second Circuit Court of Appeals upheld without comment a decision by a bankruptcy judge approving the US government-backed plan to create a new entity to buy the assets of the troubled number three American automaker.

The panel allowed the opponents of the plan until 2000 GMT Monday to obtain any further delay from the US Supreme Court.

The appeals court decision puts Chrysler on the verge of completing its quick exit from bankruptcy protection following a filing April 30 in a plan backed by President Barack Obama's administration to tie the group to Fiat.

Posted by Marcia Oddi on Friday, June 05, 2009
Posted to Courts in general | Indiana Government

Ind. Decisions - Transfer list for week ending June 5, 2009

I'm told there is no transfer list for the week ending June 5, 2009.

Posted by Marcia Oddi on Friday, June 05, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In Van Prooyen Builders, Inc. v. Earl L. Lambert, Jr. and Mildred Lambert, an 11-page opinion, Judge Najam writes:

Van Prooyen Builders, Inc. (“Van Prooyen”) appeals from the trial court's money judgment in favor of Earl Lambert, Jr., and Mildred Lambert (“the Lamberts”) for real property taxes owed under their real estate purchase agreement. The parties dispute whether, given the “late” assessment of real property in Lake County, their agreement requires the proration of 2006 taxes payable in 2007. The trial court noted that “since 2002 no tax bills [in Lake County] have been delivered on time” and held that, “due to factors completely beyond control of the parties,” the clause that requires that all real estate taxes “assessed against the subject property after closing shall be paid by the Buyer” is void as against public policy. See Appellant's App. at 31, 34, 46. We hold as a matter of law that, regardless of when the assessment was actually completed and the tax statements were issued, the March 1 statutory assessment date controls the operation and effect of the tax provision, which unambiguously prorates the 2006 taxes payable in 2007 as of the closing date. Thus, we affirm the trial court's judgment for the Lamberts. * * *

In sum, the fact that Lake County was late in assessing the real property taxes does not affect the parties' intent to prorate taxes according to their ownership of the property. The Tax Provision's last sentence means, simply, that once the Lamberts became title owners they likewise became personally responsible for those property taxes attributable to their ownership, regardless of any reassessments or adjustments, and that the Lamberts would be responsible for satisfying any tax liens against the property that attached after they acquired the title. We therefore must affirm the trial court's judgment for the Lamberts.

Conclusion The dispositive question in this appeal is not whether the Agreement violates public policy but whether the Tax Provision unambiguously provides for the proration of the 2006 tax liability. We hold that the statutory assessment date controls the Tax Provision, which is consistent with the parties' clear intent to prorate the tax liability. See Moll, 264 Ind. at 366, 344 N.E.2d at 839; Miller, 643 N.E.2d at 928; Johnson, 614 N.E.2d at 589. We affirm the trial court's judgment that Van Prooyen is required to pay to the Lamberts that portion of the 2006 taxes, payable in 2007, attributable to Van Prooyen's ownership of the property calculated to the closing date. Affirmed.

In Richard Moore v. Wells Fargo Construction, an 8-page opinion on rehearing, Judge Najam writes:
Moore has filed a petition for rehearing, asking us to reconsider our holding that Moore waived the argument that CIT’s sale of the Excavator was not conducted in a commercially reasonable manner. In particular, Moore argues that he was statutorily barred from waiving his right to a commercially reasonable sale of collateral.

Although Moore did not directly or indirectly make this argument in his Appellant’s Brief, on review we agree with Moore that, under the Uniform Commercial Code, he could not have waived the right to a commercially reasonable sale of collateral. As such, we grant Moore’s petition to consider whether CIT conducted the sale of the Excavator in a commercially reasonable manner. And, after considering that issue on the merits, we reaffirm the trial court’s decision. * * *

In light of all the circumstances, we cannot say that the trial court abused its discretion when it determined that CIT’s sale of the Excavator was conducted in a commercially reasonable manner. In all other respects, we affirm our prior opinion.

Rehearing granted, modified in part and reaffirmed in part.

In C.C. v. State of Indiana , a 6-page opinion, Judge Crone writes:
Did the trial court commit fundamental error by accepting jurisdiction in this case? * * *

From a common sense standpoint, if we were to follow C.C.’s reasoning to its illogical conclusion, his misdemeanor violation of the firearm statute would not fall within the jurisdiction of either the juvenile court or the adult criminal court and thus would go unpunished. We do not think this was the legislature’s intent. As the State points out, “[i]t is a rule of statutory interpretation that courts will not presume the legislature intended to do a useless thing or to enact a statute that is a nullity.” N. Indiana Bank and Trust Co. v. State Bd. Of Finance, 457 N.E.2d 527, 532 (Ind. 1983).

For all these reasons, we find no fundamental error in the juvenile court’s exercise of its jurisdiction in this case. Affirmed.

NFP civil opinions today (4):

Paternity of N.T.; D.K. v. B.T. (NFP)

In Re the Paternity of T.M.: J.M. v. C.C. (NFP)

The Invol. Term. of the Parent-Child Rel. of T.J., T.J., and T.J.; T.J. v. Indiana Dept. of Child Svcs. (NFP)

The Term. of the Parent-Child Rel. of De.S. and Dy.S.; N.F. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (10):

Andrew G. Hartoin v. State of Indiana (NFP)

Dustin Messer v. State of Indiana (NFP)

Wendell Iddings v. State of Indiana (NFP)

Norman Anderson v. State of Indiana (NFP)

Shannon Terrell v. State of Indiana (NFP)

Anthony Malenchik v. State of Indiana (NFP)

Debra Willsey v. State of Indiana (NFP)

Matthew D. Taylor v. State of Indiana (NFP)

Donald Parmerlee v. State of Indiana (NFP)

Said A. Elkhatib v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 05, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on Indiana's pension funds' involvement in Chrsler bankruptcy

Esmé E. Deprez of Business Week has this long story today.

The Gary Post-Tribune had an editorial yesterday headed "State treasurer fails to take responsibility."

This Nov. 23rd ILB entry, headed "Troubled by Toll Road investments," provides some background.

Finally, for now, here is the 92-page brief filed Thursday with the 2nd Circuit by the Indiana Pensioners.

Posted by Marcia Oddi on Friday, June 05, 2009
Posted to Courts in general | Indiana Government

Ind. Law - AG finds that a Port Authority seat is a "lucrative office" per the Constitution

Jeff Burton reports today in the NWI Times:

HAMMOND | Bob Markovich should not hold seats on the Hammond City Council and the Hammond Port Authority, according to an opinion by Indiana Attorney General Greg Zoeller made public earlier this week.

He cited a constitutional provision prohibiting officials from holding dual lucrative offices.

Explaining his opinion using previous case law, Zoeller said an office is deemed "lucrative" in the eyes of the state when "there is attached a compensation for services rendered," and that "lucrativeness does not depend on the amount of compensation affixed to the office." He said a position would not be considered lucrative if the office holder was reimbursed for expenses incurred in connection with his or her duties.

Hammond Mayor Tom McDermott Jr. raised the issue of holding both offices shortly after City Council members chose Markovich, an at-large member of the council, to sit on the port authority board in January. McDermott vetoed the appointment and asked Zoeller for an opinion.

Markovich, a 22-year council member, said until this year when he was appointed, a City Council member always has sat on the port authority board. 1st District Councilman Mark Kalwinski previously held the post.

"It was OK for Mark Kalwinski to be on there," Markovich said. "Now that I'm the appointment, no other council member can be on there? I have the research from the City Council attorney that it's not lucrative. I have a Supreme Court ruling."

Markovich, who lives in the Robertsdale area, said the port authority needs a watchdog to monitor how a $31 million award from the Regional Development Authority is spent and that the Attorney General's nonbinding opinion shouldn't be considered the word of law.

"The Attorney General is just another lawyer who has an opinion," he said.

Here is the June 1, 2009 AG advisory opinion.

The AG's office under General Carter prepared a 20-page "Dual Office Holding Guide." Access it here.

[More] The Times today also has an editorial, suggesting that Zoeller expand the ruling in some areas, rather than issuing lucrative office opinions on a case-by-case basis:

The Hammond City Council appointed one of its own, Bob Markovich, to serve on the city's Port Authority board. But now Indiana Attorney General Greg Zoeller says Markovich is not entitled to serve there.

Zoeller's ruling this week is strictly advisory, but it's reason enough for the City Council to appoint a citizen, not a councilman, to the board.

Markovich, D-at-large, was appointed by his peers in January, but Mayor Thomas McDermott Jr. vetoed his appointment within days, citing a state law banning public officials from holding dual lucrative positions.

State Sen. Frank Mrvan, D-Hammond, asked for the attorney general's opinion. Here's the short answer: "A member of a city council and a member of a board of directors of a local government port authority are both lucrative officeholders for purposes of Article 2, Section 9 of the Indiana Constitution. Simultaneously holding both offices would violate the constitutional prohibition against dual office holding."

McDermott was asked last week about the request for an official advisory opinion. "I'd be shocked if (Zoeller) came back and said (Markovich) could serve on it," McDermott said. How prophetic.

The mayor noted the precedent of City Clerk Bob Golec, whose appointment to the Little Calumet River Basin Development Commission was rejected by the state in 2005 because it would be considered holding two lucrative positions.

Hammond Port Authority board members receive about $6,000 a year and have the option of receiving health insurance.

Councilman Mark Kalwinski, who held the seat before Markovich was appointed, has said he wants someone from the First District appointed, because the Port Authority business affects his constituents in the Robertsdale area and because of the casino revenue generated in his district.

Zoeller's opinion answers Mrvan's direct question about whether a council may also serve on a port authority board. It was about a specific situation.

Mrvan or one of his fellow lawmakers should now ask Zoeller to rule on the broader questions this ruling raises.

Zoeller should be asked to take a look at other instances of public officials holding more than one lucrative office -- including the many mayors who get paid extra for serving on sanitary district boards. Is that unconstitutional? From the attorney general's Dual Office Holding Guide, it would seem so.

Of course, public officials don't have to wait for Zoeller to rule on a potential question about this practice. They can -- and should -- follow this simple principle: Let officeholders do what they were elected to do and give citizens a chance to serve in other capacities.

Posted by Marcia Oddi on Friday, June 05, 2009
Posted to Indiana Government | Indiana Law

Environment - Still more on: "EPA cites BP's Whiting refinery for Clean Air Act violations"

Updating yesterday's entry, here is an expanded Gary Post-Tribune story on "Congressmen demand BP probe."

In addition, a formal "Notice of Intent to Initiate Citizen Suit Action under Section 304 of the Clean Air Act " (available here via the P-T) has been filed, as reported today in this P-T story by Gitte Laasby:

MERRILLVILLE -- A group of Northwest Indiana residents intends to sue BP Whiting for illegal air pollution and seek up to $30 million in fines.

The Hammond-based Calumet Project sent a letter to BP officials Wednesday stating it intended to sue because BP failed to get a proper permit before beginning construction on its expansion to process more Canadian crude oil. * * *

The Calumet Project group has already appealed BP's air permit in court, but the new suit would be in federal court and largely leave the Indiana Department of Environmental Management out.

"This is a serious escalation beyond the permit fight," said Denny Larson, executive director for the Global Community Monitor, which is also part of the suit.

He said the groups reviewed EPA documents and discovered that BP also failed to control 2.2 tons of hydrogen sulfide emissions from a sulfur pit at the refinery between October and November 2006. The substance smells like rotten eggs and can cause eye-, nose- and throat irritation and difficulty breathing for asthmatics.

Global Community Monitor has fought cases against other refineries in the past. One of them was an Exxon refinery in Louisiana, which was required to pay a fine, install more air pollution control equipment and install air monitoring.

The legal notice comes after EPA announced Tuesday that BP emitted benzene without proper pollution controls at its treatment plant for nearly six years.

Larson said if regulators had taken air samples near the facility, officials would have discovered there was a problem.

"If they were doing their jobs, this stuff would have been discovered from the beginning, but they rely a lot on self-reporting," he said. "The company will report a lot of things and that builds this illusion that works pretty well... Industries as big as BP, you do have to rely to a degree on self-reporting, but that doesn't prevent agencies from checking on those self-reports and making sure it's accurate and that regulations are being followed."

The groups are against refining tar sands and hope that if BP is required to spend millions on additional pollution control equipment, the company may decide to switch to another crude stock or develop more renewable energy instead.

Posted by Marcia Oddi on Friday, June 05, 2009
Posted to Environment

Thursday, June 04, 2009

Law - Some useful information on obtaining loan modifications

Check out this long article by Alexandra Andrews of ProPublica re helping homeowners avoid foreclosure.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to General Law Related

Environment - More on: "EPA cites BP's Whiting refinery for Clean Air Act violations"

Updating this ILB entry from Tuesday, Gitte Laasby of the Gary Post-Tribune reports this afternoon:

MERRILLVILLE - Nineteen members of Congress from Great Lakes states are calling for the U.S. Environmental Protection Agency to investigate whether BP is complying with its air, water and land pollution permits.

The legislators asked the EPA Thursday to take "a systemic look" at BP discharges and emissions. The move comes after EPA announced Tuesday that BP's Whiting refinery emitted cancer-causing benzene at its wastewater treatment plant without proper air pollution control equipment for nearly six years.

BP self-reported the 2003-2008 violations in an annual report it is required to submit to the EPA. * * *

No members of Congress from Indiana signed on to the letter.

Both Democrats and Republicans signed it; 11 from Illinois, five from Michigan, two from Wisconsin and one from New York. Many of them also spoke up in 2007 after the Indiana Department of Environmental Management permitted BP to increase its discharges of ammonia and silty materials containing traces of heavy metals into Lake Michigan. * * *

BP discovered the problem when a third party audited the treatment plant in 2008 as part of an effort to improve operations.

See also Laasby's report from June 3rd for more details on the discovery of the violation.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Environment

Courts - Judge Sotomayor's 173-page questionaire now available

Here it is, from the Senate Judiciary Committee.

Peter Baker, of the NY Times politics and government blog, The Caucus, has reviewed it and writes about it here this afternoon. His story begins:

The White House first contacted Judge Sonia Sotomayor about the possibility of being nominated to the Supreme Court three days before Justice David H. Souter announced his retirement and stayed in touch with her nearly every day afterward, according to documents sent to Congress on Thursday.

Her early and intensive contacts with the White House, outlined in a questionnaire submitted to the Senate Judiciary Committee, open a window into a selection process in which she appeared to be President Obama’s frontrunner from the beginning. If confirmed, she would be the first Hispanic and third women to serve on the high court.

[More] The Blog of Legal Times has this.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Courts in general

Environment - "Obama appoints Cameron Davis as Great Lakes czar" [Updated]

So reports the NWI Times in a brief story.

[Updated 6/5/09] A longer story today, headed "Great Lakes czar has long record as advocate," in the Times.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Environment

Courts - More on: President Obama's Indiana nominees David Hamilton and Dawn Johnsen remain in limbo

Updating this ILB entry from May 21st, the Senate Judiciary Committe has today voted to send David Hamilton's nomination to the 7th Circuit to the Senate floor, where it will join his sister-in-law Dawn Johnsen's nomination to the DOJ's Office of Legal Counsel, both now to await confirmation votes from the full Senate.

Here is Maureen Groppe's story from the Indianapolis Star Washington Bureau.

[More at 1:00 PM] More here from the Blog of Legal Times:

The Senate Judiciary Committee today overwhelmingly endorsed two presidential nominees for prominent legal positions: Andre Davis for the U.S. Court of Appeals for the 4th Circuit and Thomas Perez for the Justice Department's Civil Rights Division.

But, in a warm-up for the confirmation debate over Supreme Court nominee Sonia Sotomayor, senators divided sharply along party lines over Judge David Hamilton of Indiana, nominated for the U.S. Court of Appeals for the 7th Circuit.

The three nominations now head to the full Senate. * * *

The nomination of Hamilton, a judge in the Southern District of Indiana, was more controversial. Republicans criticized his rulings in establishment clause cases, and they used his nomination to launch a broad criticism of Obama's judicial philosophy. Sessions even accused the president of attempting an "FDR-style packing of the federal bench," though Obama has not proposed adding any new federal judgeships.

[Still More at 1:22 PM] Brian Beutler of Talking Points Memo DC reports:
With all the news about President Obama's Supreme Court nominee, it's easy to forget that Obama nominated a different judge to a different court before well before Sonia Sotomayor became a household name.

Obama nominated David Hamilton to serve on the Seventh Circuit court of appeals back in March, and, thanks to a number of Republican delays, he has only today been reported out of the Senate Judiciary Committee on a party-line 12-7 vote.

Now Hamilton will be exposed to a bright new world of procedural measures meant to obstruct his confirmation. Back in April, Sen. James Inhofe (R-OK) said he would filibuster Hamilton once the committee advanced the nomination. "I had to come to the floor to speak so that the American people, who are very concerned about this nomination, will know that I and my Republican colleagues on the Judiciary Committee are taking interest and are not just going to let this nomination sail through," Inhofe said on the Senate floor. "In fact I will filibuster David Hamilton."

That's the same James Inhofe who once called judicial filibusters 'unconstitutional.'

(Incidentally, Hamilton is the brother-in-law of Dawn Johnsen--another Obama nominee who's struggling to get confirmed by the Senate.)

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

Eric D. Smith v. J. David Donahue, et al. - " Although Indiana uses notice pleading, the plaintiff must still plead the operative facts involved in the litigation. See Donahue v. St. Joseph County, 720 N.E.2d 1236, 1239 (Ind. Ct. App. 1999). Smith pleaded none. Smith’s claims are frivolous, lack an arguable basis in fact and law, and are not claims upon which relief may be granted. See Ind. Code § 34-58-1-2. The trial court did not err in dismissing Smith’s complaint. Affirmed. "

In Witmat Development Corp. and Lorelei Airhart v. Randall Dickison, et al. , a 10-page opinion, Judge Mathias writes:

Randall Dickison, individually and as personal representative of the Estate of Gregory Dickison (“the Estate”), filed a complaint in Clay Superior Court against Witmat Development Corporation (“Witmat”) alleging that Witmat negligently failed to warn of a water-filled strip pit adjacent to a public highway, which pit is located on Witmat's property. Witmat moved for summary judgment arguing that it owed no duty to Gregory Dickison (“Dickison”), or in the alternative, that Dickison's own negligence was the cause of the accident that resulted in his death. The trial court denied Witmat's motion for summary judgment. Witmat appeals and raises three arguments, but we address only the following dispositive issue:whether Witmat owed a duty to Dickison as a matter of law. Concluding that Dickison was not traveling the roadway with reasonable care, and therefore, that Witmat is entitled to judgment as a matter of law, we reverse.
In Shean West v. State of Indiana, a 6-page opinion, Sr. Judge Sullivan writes:
The sole assertion presented upon appeal is that there is insufficient evidence to support the conviction because Mrs. West's testimony was inherently contradictory and therefore subject to the rule of incredible dubiosity.
It is well settled that this appellate tribunal will not weigh conflicting evidence and therefore will not reweigh the evidence nor judge witness credibility. Gleaves v. State, 859 N.E.2d 766 (Ind. Ct. App. 2007). However, the rule of incredible dubiosity was recently restated by our Supreme Court in Fajardo v. State, 859 N.E.2d 1201( Ind. 2007) as follows:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
859 N.E.2d at 1208 (quoting Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)). * * *

The judgment and sentence upon the conviction for Domestic Battery are affirmed.

Christopher L. Moore v. State of Indiana - "The trial court did not abuse its discretion in sentencing Moore, and Moore’s aggregate sentence of nineteen years is not inappropriate in light of the nature of the offense and the character of the offender. Affirmed."

NFP civil opinions today (4):

Donald W. Snover v. Linda K. Snover (NFP) - " Concluding Donald had sufficient opportunity to participate in the final hearing but that the trial court abused its discretion when it determined Donald had no interest in the marital residence, we remand. "

Michael Gould, O.D. v. Jeffrey B. Musselman (NFP) - "During a routine contact lens examination, Dr. Michael Gould, O.D., discovered that Jeffrey B. Musselman's intraocular pressure was abnormally high. Dr. Gould did not provide a referral to an opthamologist but did instruct Musselman to see an opthamologist that Musselman reported having seen in the past about his elevated eye pressure. Musselman agreed to see his opthamologist about the issue, but he never did so. Musselman later developed pigmentary dispersion glaucoma and filed a medical malpractice suit against Dr. Gould, alleging that Dr. Gould failed to meet the applicable standard of care. Dr. Gould asserted the affirmative defenses of contributory negligence and failure to mitigate damages and tendered jury instructions regarding each. The trial court refused to give the instructions, finding that they were not supported by the evidence. A jury found in favor of Musselman and awarded him $750,000. Dr. Gould now appeals, arguing that the trial court abused its discretion by rejecting the jury instructions on contributory negligence and the duty to mitigate damages. Because there is no evidence that Musselman's alleged negligence was simultaneous to Dr. Gould's alleged negligence and because the tendered instruction on the duty to mitigate damages does not fit the facts of this case, we conclude that the evidence does not support the tendered instructions. We affirm the trial court. "

Elizabeth and Dennis Hollen v. Troy Spears and Johnnie Spears (NFP) - "Elizabeth and Dennis Hollen filed a complaint in Washington Superior Court against Troy and Johnnie Spears seeking damages the Hollens incurred after Elizabeth Hollen fell down a flight of stairs at the Spearses' home. The Spearses filed a motion for summary judgment and argued that they did not breach the duty owed to Elizabeth Hollen, and therefore, they were entitled to judgment as a matter of law. The trial court granted the Spearses' motion for summary judgment. The Hollens appeal and argue that genuine issues of material fact preclude the entry of summary judgment. Concluding that the trial court did not err when it granted the Spearses' motion for summary judgment, we affirm. "

A.E. v. J.E. (NFP) - "In light of our statutory analysis and our conclusion that Father is estopped from challenging the paternity affidavit, the trial court did not err in refusing Father’s request to set aside the paternity affidavit. Affirmed."

NFP criminal opinions today (7):

Darren Hudson v. State of Indiana (NFP)

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

James W. Baker, Jr. v. State of Indiana (NFP)

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

Kimberly Faulkner v. State of Indiana (NFP)

Michael Kincaide v. State of Indiana (NFP)

Emil Garver v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Ind. App.Ct. Decisions

Environment - "Plans for hog farm are on hold: State lacks regulation, rural neighbors assert"

Angela Mapes Turner of the Fort Wayne Journal Gazette has a long report today -- some quotes:

Homeowners south of New Haven expected by now to share their rural neighborhood with 4,000 hogs.

That hasn’t happened – yet.

A proposed confined-feeding operation less than six miles from New Haven would have been among the county’s largest. But plans for the farm are on voluntary hold as attorneys representing the farmer and neighbors haggle over how the farm will be managed. * * *

On Aug. 15, the Indiana Department of Environmental Management approved an application by Doug Bradtmueller of 12102 Rohrbach Road to construct a building that would hold up to 4,000 hogs. Manure would be collected beneath the building in a concrete pit.

A concentrated animal feeding operation, or CAFO, involves raising hundreds to thousands of cows, pigs or chickens in environmentally controlled housing.

Supporters say concentrated feeding operations conserve land, protect animals from some predators and potential diseases and are more labor-efficient. Detractors say the waste produced by such a concentration of animals can create environmental hazards.

Charles Critchley and his daughter, Kim Linker, live in neighboring homes on Franke Road about a half-mile from the proposed site.

They appealed Bradtmueller’s application, and the issue went to the state Office of Environmental Adjudication. Bradtmueller voluntarily agreed not to begin construction while the appeal is pending.

Bradtmueller, who declined to comment for stories in August, did not return a message requesting comment this week. His attorney, Dan McInerny, of Bose McKinney Evans in Indianapolis, said Bradtmueller will continue working toward an amicable agreement with the neighbors. * * *

IDEM doesn’t regulate odors, traffic, zoning or land-use issues when it comes to concentrated animal feeding operations. Because manure collection systems on mega-farms can result in spills or runoffs that pollute surface or groundwater, the federal government requires IDEM to issue federal water permits for such farms.

The agreement being negotiated for Bradtmueller’s operation includes provisions for testing air quality and private wells on Bradtmueller’s and adjacent properties – beyond what’s required by law.

The experience has motivated Critchley to activism. He headed an effort to collect about five dozen signatures to attach to proposed legislation that failed at the Statehouse this spring.

But he has focused his efforts at the county level. He and his daughter are making recommendations to the county’s zoning board.

The advisory committee will address whether concentrated animal feeding operations should be near residences. Critchley and Linker want those types of farms to have separate zoning classifications beyond regular agricultural zoning that would protect property owners near the large farms.

Despite the stay, the experience has left both disappointed in the way the state handles applications for such farms, especially hog farms. They wonder why it’s been them – and not the Indiana Department of Environmental Management or some other governmental agency – writing regulations related to the farm’s operation.

The Department of Agriculture cites a goal of doubling hog production in the state; in 2006, permits for all types of confined feeding operations in Indiana increased by 8 1/2 percent.

Critchley believes the state too easily rubber-stamps such applications and that IDEM doesn’t do enough to regulate the farms, such as requiring testing of wells on property near where manure will be spread as fertilizer.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Environment

Ind. Courts - "Ex-Clark court workers sue: Two claim firings politically based"

Ben Zion Hershberg reports today in the Louisville Courier Journal:

Two former Clark County Circuit Court employees have filed separate lawsuits against the court and Judge Daniel Moore, claiming they were illegally fired in January for political reasons.

The former employees -- Jeremy Snelling and Chanelle Vavasseur -- are Republicans.

Moore, who took office Jan. 1, is a Democrat.

While judges often bring in new employees when they take office, it's illegal to dismiss those who aren't in "policy-making" or "confidential" positions, said lawyer Rick Fox, who represents Snelling and Vavasseur.

Neither Snelling, who was a bailiff, nor Vavasseur, who was a clerk, held such positions, Fox said. Vavasseur, in her lawsuit, also claims she was dismissed because she is African American.

Moore called the claims "absolutely frivolous."

He said he interviewed the court's four employees after he was elected as well as several others to find workers who had the skills he needed. He said he settled on his current employees because of their extensive experience as court reporters and clerks or with computer technology.

Moore also said he found Snelling's lawsuit "very ironic" after "the cruel and unnecessary devastation of the circuit court staff last June."

That was when Republican Abe Navarro was appointed by Gov. Mitch Daniels after the previous judge retired. Navarro hired Snelling and intended to hire David Buskill, who then was Clark County Republican chairman, and asked for pay increases for them. The staff shake-up and proposed pay raises prompted other judges to criticize Navarro's actions as political and discriminatory. Buskill declined the position.

Fox said the lawsuits by Snelling and Vavasseur stand on their own. He said the former court employees who were replaced by his clients obtained other court or law-firm jobs.

Fox said he doesn't know whether Snelling and Vavasseur have found work since he notified Circuit Court and other defendants that he intended to file suit. The lawsuits do not specify damage amounts.

The county and the state also were named as defendants in the lawsuits, which have not been set for hearings. County Attorney Greg Fifer said he doesn't believe the county should be included since the courts are controlled by state government. But Fox argued that the county provides some pay for court employees.

The cases initially were filed last month in Clark County Superior Courts 1 and 2 but have been moved to U.S. District Court in New Albany at the request of the Indiana attorney general's office.

Molly Butters, a spokeswoman for the office, said it generally represents judges and the state in such cases.

For background, see this list of ILB entries from 2008 re "New judge's hires stir up controversy."

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Indiana Courts

Law - Fort Wayne Journal Gazette asks "Where is the outrage?"

From an editorial today:

Many of the mainstream groups opposing abortion have rightly denounced the slaying of Dr. George Tiller, recognizing the killing has tarnished the anti-abortion movement. Yet for all the people who recently spit invectives about the sanctity of life before President Obama’s visit to the University of Notre Dame in May, the denunciations of Tiller’s cold-blooded killing – in church, no less – have been fewer and more low-key.

While no mainstream group has outright endorsed the killing, some others have come close. * * *

The Journal Gazette was flooded with letters to the editor from people claiming to be pro-life who were angry that Notre Dame would honor the pro-choice president. We have yet to receive a single letter denouncing the murder of Dr. George Tiller.

“I wonder how can the people who say they are pro-life turn around and say it is justifiable,” said Dr. George Klopfer, the physician who performs abortions at the Fort Wayne Women’s Health Organization. * * *

The person who pulled the trigger and shot Tiller while he was handing out church bulletins in the foyer of the Reformation Lutheran Church just as the Sunday worship service began is most culpable. But people who claimed to be pro-life and still spewed messages of hatred for or suggested violence against Tiller or anyone else disagreeing with them over abortion need to examine their rhetoric.

Even those with calmer rhetoric too often spread misinformation about abortion. For example, Planned Parenthood is not in business making millions of dollars by performing abortions. Planned Parenthood of Indiana is a not-for-profit organization that provides reproductive health services to men and women.

Abortion is a very small segment of the services it provides. Ensuring women are able to get an annual examination and Pap smear is the most common activity at any of the 34 Planned Parenthood locations in Indiana.

Only three of the organization’s Indiana centers offer abortion, none in northeast Indiana.

Klopfer wonders why he doesn’t hear more outrage from those in the pro-life movement over Tiller’s slaying or the loss of innocent lives during the U.S. war in Iraq or the many children in Chicago killed this past year.

His questions are reasonable. Too often the shouts of those who care only about ending abortion drown out all others. The shouting makes it impossible for people to work toward reducing the need for abortion and improving life for everyone.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to General Law Related

Ind. Courts - "Group challenges arrests of Notre Dame protesters"

Updating earlier ILB entries, Jeff Parrott of the South Bend Tribune reports today in a lengthy story:

SOUTH BEND — Just when Notre Dame officials thought the storm of controversy over President Barack Obama's commencement address and honorary degree had quieted, a new set of dark clouds is brewing in court this week.

A nationally prominent conservative advocacy group is gearing up for a legal battle to defend about 70 of the anti-abortion activists arrested on campus last month on misdemeanor trespass charges.

Nearly all of them are pleading not guilty in court and say they want to take their cases to trial. St. Joseph County Prosecutor Michael Dvorak said he expects some to ultimately plead guilty, but their attorney gives no such indication. * * *

The defendants are making their initial court appearances this week and Monday, Dixon said. On Tuesday, he asked the court for 30 days to file written briefs seeking dismissal of the charges based on the law, rather than the facts of the case.

In other words, the defendants won't deny they were on campus and were arrested because they refused to leave. But they might argue that police violated their constitutional rights in kicking them out and having them arrested, Dixon said.

The defendants also might argue that the university does not enjoy all of the private property rights that an individual does, he said. Dixon called the campus a "quasi-municipality" because it invites the public to enter it at any time, and it contains public amenities such as restaurants, a post office and police department whose officers have arrest powers.

The protesters might even argue that the university doesn't truly own the property, but its board holds it in trust for "the body of Christ" and all who believe in him, Dixon said.

They might argue against "selective enforcement," a term that blacks have used to challenge the constitutionality of receiving speeding tickets while white drivers who speed did not.

"Should an institution that calls itself Catholic have the authority to arrest a priest?" Dixon asked. "They arrested Father Norman Weslin (of Council Bluff, Iowa) for praying the rosary. They'll say they arrested him because he wouldn't leave, but there were people selling Obama buttons right next to him. Why weren't they asked to leave?"

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Indiana Courts

Courts - "Debate on Whether Female Judges Decide Differently Arises Anew"

Neil A. Lewis writes today in the NY Times in a long article that begins:

Sandra Day O’Connor, the first woman to serve on the Supreme Court, is often quoted as saying that a wise female judge will come to the same conclusion as a wise male judge.

But the opposing argument was bolstered forcefully in April by Justice Ruth Bader Ginsburg, currently the court’s only woman, in a case involving Savana Redding, a 13-year-old girl who had been strip-searched at school by the authorities on suspicion of hiding some ibuprofen pills that may be bought over-the-counter.

“They have never been a 13-year-old girl,” Justice Ginsburg said of her eight male colleagues, several of whom had suggested during oral argument that they were not troubled by the search.

“It’s a very sensitive age for a girl,” Justice Ginsburg went on to say in an interview with USA Today. “I didn’t think that my colleagues, some of them, quite understood.”

Now that President Obama has nominated Judge Sonia Sotomayor to become the third woman in the court’s history, the question of how female judges may see and decide some cases differently is again being weighed.

Judge Sotomayor herself raised the issue of personal experience in judging and engendered mixed reviews recently for a speech she gave in 2001 in which she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

But the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Courts in general

Ind. Decisions - More on: Supreme Court dismisses school finance plaintiffs' arguments

Updating this ILB entry from Tuesday on the Supreme Court's decision in Bonner v. Daniels, Karen Francisco of the Fort Wayne Journal Gazette has an item today in the JG blog, Learning Curve, headed "Wanted: Public ed supporters." It begins:

There's disappointing news from the Indiana Supreme Court regarding Bonner v. Daniels, the class-action suit alleging the state does not meet its constitutional obligation to provide a "general and uniform" public education system.

Marcia Oddi at Indianalawblog.com reports the state's highest court has dismissed the lawsuit.

"We conclude that the framers and ratifiers certainly sought to establish a state system of free common schools but not to create a constitutional right to be educated to a certain quality or other output standard," states the majority opinion.

Put simply: We believe the state's founders wanted to establish schools, but they didn't intend for all of them to be good schools.

The decision means the gap between the haves and the have-nots in Indiana public schools will continue.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Ind. Sup.Ct. Decisions

Law - More on "New Hampshire. Legislature Approves Gay Marriage "

Abby Goodnough of the NY Times has a comprehensive story on the new law, signed yesterday by the New Hampshire governor after the addition of some revisions related to religious freedom.

Here, via Findlaw.com, is the final text of the law. From the NYT story:

BOSTON — The New Hampshire legislature approved revisions to a same-sex marriage bill on Wednesday, and Gov. John Lynch promptly signed the legislation, making the state the sixth to let gay couples wed.

The bill had been through several permutations to satisfy Mr. Lynch and certain legislators that it would not force religious organizations that oppose same-sex marriage to participate in ceremonies celebrating it. Some groups had feared they could be sued for refusing to allow same-sex weddings on their property.

Mr. Lynch, who previously supported civil unions but not marriage for same-sex couples, said in a statement that he had heard “compelling arguments that a separate system is not an equal system.”

“Today,” he said, “we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities — and respect — under New Hampshire law.”

The law will take effect on Jan. 1. As originally cast, the legislation exempted members of the clergy from having to perform same-sex weddings. Then Mr. Lynch, a centrist Democrat, said he would veto the bill unless the legislature added language also exempting religious groups and their employees from having to participate in such ceremonies.

Mr. Lynch also ordered that the bill protect members of religious groups from having to provide same-sex couples with religious counseling, housing designated for married people and other services relating to “the promotion of marriage.”

But the House rejected that language last month by a two-vote margin, and legislative leaders appointed a committee to negotiate a compromise.

The committee last week recommended changes further emphasizing the rights of religious groups not to participate. They include a preamble to the bill that states, “Each religious organization, association, or society has exclusive control over its own religious doctrine, policy, teachings and beliefs regarding who may marry within their faith.” * * *

As more states have legalized same-sex marriage, opponents have increasingly lobbied for “conscience protections,” language that exempts religious organizations from having to participate.

But many of the bill’s opponents believe the language adopted by New Hampshire and several other states does not go far enough because it protects only religious groups and their employees. New Hampshire’s bill does not exempt photographers or florists, for example, from having to provide services.

My thoughts: This could be tricky. Think about a law that said florists, because of their religious beliefs, could legally reject the wedding business of gay couples. Then substitute African-American couples ,,,

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to General Law Related

Ind. Courts - "Justice Sullivan heading to D.C. appeals court?"

So asks Terry Burns in the blog Indianapolis Times this morning.

Posted by Marcia Oddi on Thursday, June 04, 2009
Posted to Indiana Courts

Wednesday, June 03, 2009

Courts - More on "Judge Moves Appeal of Chrysler Sale to 2nd Circuit" [Updated]

Updating this entry from earlier today, here is the stay request filed yesterday with the 2nd Circuit by the Indiana Pensioners.

[Updated 6/4/09] "Indiana's appeal puts Chrysler deal on hold: Court to hear treasurer's argument questioning bailout," is the headline to a story this morning by Ted Evanoff on the front-page of the Indianapolis Star.

[More] Bree Fowler reports for the AP:

NEW YORK (AP) — Chrysler heads back to bankruptcy court Thursday to ask the judge overseeing its case to allow it to terminate the franchise agreements of 789 of its dealers, despite the protests of many dealers who say the move could shutter their businesses for good.

U.S. Judge Arthur Gonzalez is expected to hear testimony from Chrysler LLC executives and dealers during what's expected to be a lengthy hearing. The proceedings start at 8 a.m. EDT.

Auburn Hills, Mich.-based Chrysler maintains that it needs to reduce its dealer base by about 25 percent to a leaner network of about 2,400 dealers in order to emerge from Chapter 11 bankruptcy protection as a stronger company.

But the dealers argue that they don't cost the automaker anything. They say that if Gonzalez approves Chrysler's motion it will result in the shuttering of hundreds of dealerships and thousands of workers will lose their jobs.

A group representing about 300 of the dealers slated to lose their franchises have filed an objection. They also earlier objected to Chrysler's motion to sell the bulk of its assets to a group led by Italy's Fiat Group SpA, because it was tied to the plan to eliminate the dealerships.

Thursday's hearing comes a day ahead of Chrysler's appearance in front of the U.S. Court of Appeals for the Second Circuit in New York.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Courts in general

Law - "New Hampshire. Legislature Approves Gay Marriage "

Updating this ILB entry from May 6th, headed "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," and this long list of ILB entries on same sex marriage, the NY Times is reporting, via an AP story, that:

CONCORD, N.H. (AP) -- New Hampshire legislators approved a measure Wednesday that would make the state the sixth to allow gay marriage, and Gov. John Lynch said he would sign it later in the afternoon.

He had promised a veto if the law didn't clearly spell out that churches and religious groups would not be forced to officiate at gay marriages or provide other services.

The Senate passed the measure Wednesday, and the House -- where the outcome was more in doubt -- followed later in the day. The House gallery erupted in cheers after the 198-176 vote.

''If you have no choice as to your sex, male or female; if you have no choice as to your color; if you have no choice as to your sexual orientation; then you have to be protected and given the same opportunity for life, liberty and happiness,'' Rep. Anthony DiFruscia, R-Windham, said during the hourlong debate.

New Hampshire's law takes effect Jan. 1. Massachusetts, Connecticut, Maine, Vermont and Iowa already allow gay marriage, though Maine opponents hope to overturn that state's law with a public vote.

California briefly allowed gay marriage before a public vote banned it; a court ruling grandfathered in couples who were already married. * * *

The revised bill added a sentence specifying that all religious organizations, associations or societies have exclusive control over their religious doctrines, policies, teachings and beliefs on marriage.

It also clarified that church-related organizations that serve charitable or educational purposes are exempt from having to provide insurance and other benefits to same sex spouses of employees. The earlier version said ''charitable and educational'' instead of ''charitable or educational.''

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to General Law Related

Law - More on "Recession Imperils Loan Forgiveness Programs"

If you read this June 1st ILB entry with interest, then you will want to read Above the Law's post this afternoon headed "UNC School of Law Abruptly Ends Loan Repayment Assistance Program."

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to General Law Related

Ind. Decisions - "Ex-lawyer gets 2 years in deadly DUI," may serve 11 months

Since May 7, 2007 the ILB has followed the stories of two young Indiana attorneys, one, Teresa Perry from Evansville, charged with possessing and distributing methamphetamine; the other, Terry Record, an Indiana attorney, also from Evansville, charged with in a drunken-driving with fatality case.

As noted in this long ILB entry from April 15th, "Perry was sentenced on May 28, 2008 to 'a total of six years in the Indiana Department of Correction.'" Read Kate Braser's story here. It concludes:

Trockman said he considered that Perry was charged with a nonviolent crime, has no previous record, has engaged in voluntary treatment and is unlikely to reoffend.

However, Trockman said he was concerned that some of the drug-related activity took place at Perry's rental home near a school, and he did not believe the items found at her home and law office reflected her as merely an addict.

"And although you did not manufacture drugs in the traditional sense, you were processing them at your home and office to make them more pure," Trockman said.

"This leads me to the most troubling aspect of this crime. Ms. Perry is an addict, and may very well succeed, and we hope that she will, but addicts don't have to be as engaged in the drug culture as Ms. Perry was."

A year later, yesterday, Terry J. Record was sentenced. Jon Murray reports today in the Indianapolis Star:
A judge sentenced a former state attorney to two years in prison today for driving drunk and causing a fatal wreck.

A special prosecutor asked for the maximum eight years in prison, but Terry J. Record, 29, instead received the advisory four-year sentence with half suspended.

Marion Superior Court Pro Tem Judge Mark Jones added four years of probation, with 80 hours of community service each year; about $20,000 in restitution to the victim’s family; and a five-year license suspension — a sentence designed to punish Record and ensure that he doesn’t harm anyone else again, the judge said.

In May 2007, Record left Brad’s Brass Flamingo after sharing pitchers of beer and shots with a stripper and ran a red light at Southeastern Avenue and Pleasant Run Parkway. His red BMW, traveling 59 mph in a 35-mph zone, plowed into Jimmy R. Cash’s truck, nearly splitting it in two.

Cash, 46, a father and husband, died at the scene. * * *

Record pleaded guilty in April to a Class C felony charge of operating a vehicle while intoxicated, causing death. He avoided more serious Class B felony charges because of evidence problems related to blood tests that prompted special prosecutor Barry Brown, a former Monroe County prosecutor, to offer the plea.

He likely will win release from prison in about 11 months, with credit for good behavior and 26 days spent in jail while his case was pending.

A check of the Roll of Attorneys shows both Perry's and Record's status as "suspended;"

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Ind. Trial Ct. Decisions

Law - What exactly is "data mining"?

The Fort Wayne Journal Gazette today reprints a useful article on data mining first published in the Hartford Courant. Brief quotes:

But our growing digital footprint is threatening our ability to dodge inappropriate inquiries. Through data mining, employers, insurers, advertisers and others can infer the answers to private questions without even asking.

They need two things: a heap of personal data and the techniques to crunch it. Both are readily available. * * *

Data mining relies on the principle that certain information – though useless in isolation – can take on new meaning when viewed en masse, or combined with other data. Scientists already use this technique.

There are two main approaches. First, data integration involves combining different types of data to learn something new. Consider a photograph of a bicycle: Alone, it’s an abstract representation. But tag the photo with your home location and a time stamp – and a public listing identifying the bike as stolen – and suddenly it becomes very meaningful.

A second approach is data aggregation. Gather enough of a certain type of data, and trends emerge. For instance, a cell phone’s location can be determined by tracking its signal. By aggregating enough location data from a single cell phone, we derive an increasingly reliable map of one person’s regular routes of travel. From this, we can estimate where the phone’s owner is likely to be at a given time and perhaps even guess his home location, income and so forth.

Fusing these approaches is even more powerful: that is, combining and mining multiple data sets, each very large. Google did this last year, pairing aggregate Web search queries with location and timing data to predict which regions would next come down with the flu. It outperformed the Centers for Disease Control and Prevention.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to General Law Related

Ind. Decisions - "Attorney fees, treble damages to be sought by state in sidewalk case"

Updating this ILB entry from May 22nd, which quoted a report that "U.S. District Court Judge James Moody entered a default judgment in the civil case against Pastrick and former aide James Fife III," today Andy Grimm of the Gary Post-Tribune continues his reporting on Pastrick:

HAMMOND -- Former East Chicago Mayor Robert A. Pastrick could be required to pay the city and the state three times the $24 million that was spent 10 years ago on a sidewalks-for-votes scheme and pay for lawyers hired by the state to bring a civil racketeering lawsuit against him and top administration officials.

State Attorney General Greg Zoeller on Tuesday filed a brief outlining the case against Pastrick and former aide James H. Fife III. On Monday, U.S. District Judge James Moody entered a default judgment against the pair. * * *

"This case is about more than just collecting monetary damages that may or may not be paid. It is about rehabilitating the city government of East Chicago of the historic legacy of corruption from the Pastrick era," Zoeller said in a statement Tuesday.

Moody will determine the amount of damages to award after a hearing June 6 and the state is entitled to "treble damages" and attorney fees under racketeering statutes. The state hired former federal prosecutor Patrick Collins to lead their legal team, and Collins' firm so far has billed the state more than $373,000.

Twenty-five defendants were named in the lawsuit, and all but Pastrick, Fife and former city councilman Frank Kollintzas reached settlements. Kollintzas fled to Greece to avoid prison on a federal criminal conviction tied to the sidewalk scheme.

The state has collected more than $1.2 million from other defendants and have claims pending for $17 million more, Zoeller's office said. A massive judgment against Pastrick likely won't mean a significant payday for the city.

The octogenarian likely will file for bankruptcy protection, and likely has few assets the state could recover.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Puppy Mill Busted: Dogs taken from Harrison County farm to New Albany warehouse"

Matt Thacker of the New Albany News & Tribune reports today in a long story that begins:

Approximately 240 dogs were seized from an alleged “puppy mill” in Harrison County on Tuesday and were taken to an emergency shelter set up at a warehouse in New Albany.

With a new state law restricting “puppy mills” not going into effect until next month, the Indiana Attorney General’s office was able to obtain a search warrant to raid the farm due to suspected tax evasion by the property owners.

The warrant was executed at two adjoining properties, known as the Breezy Valley Dairy Farm, at 8605 Valley City Mauckport SW in Mauckport. The properties are owned by Virginia Garwood.

The Tribune was the first media allowed inside the shelter as the dogs were being evaluated by veterinarians for diseases and other health conditions.

Investigators from the attorney general’s office, Department of Revenue and the Indiana State Police served a search warrant that was signed by a Marion County judge on Friday. Approximately 60 volunteers from the Humane Society of the United States’ Emergency Services department and the Humane Society of Missouri removed the dogs from the property and transported them to New Albany.

More from the story:
The seized animals were taken to a warehouse at 1420 East Main St. in New Albany where they were kept in 180 crates donated by PetSmart to the attorney general’s office.

“They should be ready to go to other homes,” Crump said. “Some will need some training. They’re just not used to being around other people.”

The dogs will be taken to humane societies for adoption in Indiana, Kentucky and Missouri.

David Hall, director of the New Albany-Floyd County Animal Shelter, said about $80,000 worth of supplies were donated by PetSmart Charities to the attorney general’s office. The wire crates, dog food and medical supplies can be used in future “puppy mill” raids, he said.

Hall said he was honored that the humane society decided to set up the shelter in Floyd County.

Indiana Attorney General Greg Zoeller held a press conference at the Culbertson Mansion in New Albany Tuesday afternoon to announce the seizure. He described the conditions of the farm as “squalid.”

Zoeller alleges that Garwood and her daughter, Kristen Garwood, sold the puppies, but failed to collect or remit sales taxes to the state of Indiana. Crump said they were being sold for $200 to $400.

On behalf of the Department of Revenue, the attorney general’s office filed a tax “jeopardy assessment” against the Garwoods for $132,440. Zoeller said that will allow them to seize personal property in order to recoup the money.

The two women nor the Breezy Valley Dairy Farm registered as a retail merchant in Indiana or ever registered to do business in the state. Department of Revenue records showed neither woman has ever remitted sales tax.

Here is a story in the LCJ reported by Harold J. Adams.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Indiana Law

Ind. Decisions - Identifying the Articles of the Indiana Constitution [Updated]

Looking at today's Court of Appeals opinion (Vaughen) and its instructive footnote 2 spelling out instances when simple redaction of confidential information is sufficient in public access filings, the ILB would be remiss if it did not also call attention to footnote 2 in yesterday's Supreme Court opinion in the case of Bonner v. Daniels.

A number of the attorneys in the case, listed on p. 1 of the opinion, were from out -of-state. Footnote 2 reads:

The plaintiffs use Roman numerals to identify the articles of the Indiana Constitution. In contrast, we refer to them by the Arabic numerals that were used by the framers. To view the original document, visit The Digital Collections of IUPUI University Library, http://indiamond6.ulib.iupui.edu/cdm4/document.php?CISOROOT=/ISC&CISOPTR=7494&REC=12 (last visited Mar. 30, 2009); for print transcript, see Charles Kettleborough, I CONSTITUTION MAKING IN INDIANA 295-375 (Ind. Historical Bureau in Indianapolis ed. 1971) (1916), available at http://www.in.gov/history/2473.htm (last visited Mar. 30, 2009).
Today's decision in Vaughen cites a 2007 Supreme Court decision in Reid v. State. In that opinion, the Arabic numeral system used by the framers is not followed -- see this quote from p. 3 of Reid, which is also quoted on p. 3 of today's Court of Appeals opinion in Vaughen:
Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). The burden is on the defendant to persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). Reid has met this burden. We conclude that his sentence is inappropriate.
Notice that Roman numerals were used in this 2007 Supreme Court opinion to identify the Articles of the Indiana Constitution.

What is the Supreme Court's statement yesterday in Bonner important? More than a matter of style, the lack of consistency in citations to our Indiana Constitution has become a significant problem in the digital age, because a search for cases that reference "Article VII", for instance, may turn up completely different[ results than a search referencing "Article 7."

[More] A reader has just sent this note:

Interesting post. Many, if not most, of the court's recent opinions have used Roman not Arabic numbers. For example, if you do a Lexis search of Indiana cases from the last five years, "Article VII, Section 4" yields 39, while "Article 7, Section 4" yields 19.

It's good to know that's not correct and presumably should change in the future. It might be helpful if the Court amended Appellate Rule 22(B) to include the proper citation form for constitutional provisions. (Nothing is mentioned currently.) Otherwise, the default is to use the Bluebook, and the Bluebook provides all of its examples in Roman. (Rule 11)

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Joel C. Vaughen v. State of Indiana , a 5-page opinion, Judge Bailey concludes:

In light of the nature of the offense and the character of the offender, Vaughen has not convinced this Court that his sentence is inappropriate.
From earlier in the opinion:
More recently, the Court reiterated that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented. See id. at 1224. One purpose of appellate review is to attempt to “leaven the outliers.” Id. at 1225. “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. at 1224.
Page 2 of the opinion has a lengthy footnote 2 that occupies half the page. A reader has opined that perhaps it is the footnote itself that is the reason this case is a "For Publication" opinion. Here is the second paragraph of note 2:
While Ind. Administrative Rule 9(G)(1)(b)(viii) requires the complete exclusion of pre-sentence reports from public access filings, we also note there are instances when simple redaction of confidential information is sufficient. In civil cases, where the appellant's appendix is to include only those documents from the Clerk's Record that are relevant and necessary to the issues raised on appeal, App. R. 50(A)(2)(f), and in criminal cases, where the entire Clerk's Record is to be included in the appendix, App. R. 50(B)(1)(a), the rules provide that when only a portion of a document contains information that must be excluded from public access, such information may be redacted from the document, App. R. 9(J); T.R. 5(G)(2). If, for instance, a relevant document in a dissolution case includes a bank account number that is to be excluded from public access, the bank account number or address, neither of which is relevant to the disposition of the appeal, could be redacted without a wholesale inclusion of those documents in a green appendix. If the information cannot be redacted or if the information is relevant to the issues raised on appeal, then the entire document can and should be included in a green appendix. NFP civil opinions today (4):

Robert Evans, et al v. Richardson Wildlife Sanctuary, Inc. (NFP) - "Richardson Wildlife Sanctuary, Inc. (“RWS”), a non-profit organization, attempted to create a wildlife sanctuary in the town of Dune Acres, Indiana. After the Dune Acres Town Council denied RWS permission to create the sanctuary, three Dune Acres couples brought suit against RWS, seeking a preliminary injunction to stop RWS from altering the property further and to force RWS to remove the structures it had already built. Upon RWS? motion, the trial court dismissed the complaint for failure to state a claim. The plaintiffs then filed both an amended complaint and a motion to correct errors and reconsider. The trial court denied the motion to correct errors and reconsider, and the plaintiffs appeal the dismissal of their complaints. We affirm the dismissal of their complaints for failure to state a claim upon which relief can be granted. "

Thomas E. Cowdrey, Jr. v. Wendy Bryant (NFP) - "When we acknowledge the substance of Cowdrey’s action, it becomes clear that he is attempting to clarify or modify the terms of the warranty deed based upon an antecedent agreement between himself and Bryant. Stated another way, by issuing the warranty deed, Cowdrey has promised to the world that he would defend Bryant’s ownership of the property from all competing claims, but now Cowdrey is trying to compete with Bryant’s claim. The parol evidence rule does not permit Cowdrey to use our courts to facilitate such a contradiction of actions. Therefore, we must affirm the trial court’s grant of summary judgment to Bryant. "

In the Matter of the Term. of the Parent-Child Rel. of S.C.; A.M. v. Indiana Dept. of Child Svcs. (NFP)

In the Matter of: Ka.S. and Ke.S.; B.M. v. Marion Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (8):

Dante Webb v. State of Indiana (NFP)

Adam M. Wagner v. State of Indiana (NFP)

Danny L. Wilbert v. State of Indiana (NFP)

Filiberto Reyes v. State of Indiana (NFP)

Shawn L. Arnold v. State of Indiana (NFP)

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

Sharon L. Gidden v. State of Indiana (NFP)

Joseph A. Fisher v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on "Judge Moves Appeal of Chrysler Sale to 2nd Circuit" [Updated]

Updating this ILB entry from yesterday, Tomoeh Murakami Tse of the Washington Post reports today in a story that begins:

NEW YORK, June 3 -- A federal appeals court agreed late Tuesday night to hear an appeal from a group of lenders seeking to block the sale of Chrysler's assets, a move that could delay the automaker's exit from bankruptcy proceedings.

The U.S. Court of Appeals for the Second Circuit accepted the appeal from a coalition of Indiana pension funds that has sought to block the sale of most of Chrysler's assets to a group led by Italian automaker Fiat, according to Chris Conner, spokesman for Indiana State Treasurer's Office.

A hearing is scheduled for Friday, Conner said. * * *

The appeal throws an element of uncertainty into the Obama administration's carefully orchestrated plan to speed the ailing automaker through bankruptcy court.

Chrysler won approval for its reorganization late Sunday night, when U.S. Bankruptcy Judge Arthur J. Gonzalez set aside the objections of lenders and dealers and ruled in favor of the government plan, just 31 days after the company filed for Chapter 11 protection.

Gonzalez said Tuesday that the case could be heard by the appeals court, skipping district court, which normally would be the next stop for an appeal of a bankruptcy ruling. It was a move that had been sought by Chrysler, which wants the process to move as quickly as possible.

[Updated at 3:15 PM] See this story from Bloomberg News for more on the scheduling.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Courts in general

Ind. Decisions - More on: 7th Circuit rules on Illinois municipalities' ban on handguns

Updating yesterday's ILB entry is this story today by Tony Mauro of the National Law Journal, headlined "7th Circuit Ruling Agrees With Sotomayor on Second Amendment." Some quotes:

The 7th U.S. Circuit Court of Appeals on Tuesday ruled that the Second Amendment right to bear arms cannot be held to restrict state gun control laws until the Supreme Court rules that the right applies to the states.

As a result, the ruling in National Rifle Association v. Chicago will likely give Supreme Court nominee Sonia Sotomayor some much-needed political cover against criticism of a similar Second Amendment ruling she joined in on the 2nd Circuit earlier this year, Maloney v. Cuomo. In that case, using the same reasoning, the 2nd Circuit panel upheld a New York ban on numchucks, weapons made of two bars joined by a cord. Tuesday's ruling by 7th Circuit Chief Judge Frank Easterbrook specifically states, "We agree with Maloney." Judge Richard Posner, like Easterbrook a leading conservative on the court, joined the ruling as did Judge William Bauer. * * *

The ruling Tuesday deepens a circuit split on the issue that will almost certainly draw the attention of the Supreme Court. While both the New York and Chicago rulings go against incorporation, the 9th Circuit's decision April 20 in Nordyke v. King did apply the Second Amendment to the states. Nordyke is under consideration for en banc review. Petitioners in the New York case, now titled Maloney v. Rice, have until June 29 to file their appeal to the Supreme Court. If that is the case the Court agrees to review to resolve the split, and if Sotomayor is confirmed as a justice, custom would keep her from participating because she ruled on it below. But if another case becomes the vehicle for the next major Second Amendment ruling, she could join in.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - "In MySpace Cases, Appellate Judges Wrestle With Possible Split"

Updating yesterday's ILB entry, Shannon P. Duffy of The Legal Intelligencer reports today in a long story that begins:

Providing a rare study in contrasts, the federal courts in Pennsylvania have had markedly different reactions to two strikingly similar First Amendment cases involving students who were disciplined for ridiculing their principals by creating fake profile pages on MySpace.com.

The American Civil Liberties Union of Pennsylvania has sided with the students in both cases, arguing that since the parody profiles were created outside of school, the school officials had no right to impose any discipline.

So far, the ACLU has won one case and lost the other. And now it appears likely that the appellate judges are also inclined to disagree. Remarks from two oral arguments revealed a sharp split among the judges about how to view the ever-evolving issue of student free speech cases within the context of the Internet and social networking sites.

If the disagreements prove to be sharp enough, it could force the appellate court to sit en banc, with one or both cases being argued before a 14-judge panel.

Posted by Marcia Oddi on Wednesday, June 03, 2009
Posted to Courts in general

Tuesday, June 02, 2009

Courts - "Prison Cell-Phone Use a Growing Problem"

On May 29th the ILB posted this most recent entry on banning cell phones in courthouses. But earlier last week, Time had a report by Tom McNichol on cell phones in prison -- a problem that rarely raised concerns until recently. Some quotes:

Drugs and weapons aren't the only contraband in prisons these days. The latest underground currency among inmates is an item most of us consider harmless: the cell phone. And so far, prison officials are fighting a losing battle to keep inmates from obtaining cell phones and using them to communicate with people both inside and outside prison walls.

In California, home to the country's largest state prison system, more than 2,800 cell phones were confiscated from inmates last year, double the number seized in 2007. But the problem isn't limited to California. State and federal prisons across the country are grappling with what officials say is an epidemic of cell-phone use among inmates

"The problem has quickly gotten out of control nationwide," says Republican Congressman Kevin Brady of Texas, who in January introduced a House bill that would permit the jamming of cell-phone signals within prison walls. "Criminals are using cell phones even from death row to threaten victims and harass lawmakers. Inmates are making literally thousands of calls from prison." * * *

Inmates sometimes use cell phones to keep in touch with friends and family on the outside — collect calls made from inside prison facilities are notoriously expensive. But officials say inevitably cell phones are also being used to orchestrate crimes, harass witnesses, organize retaliation against other inmates and even order hits.

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Courts in general

Courts - Still more on: "Florida high school student files complaint after suspension for creating Facebook page critical of teacher"

Updating this Dec. 11, 2008 ILB entry, MaryClaire Dale reports today in the Washington Post, under the headline "ACLU defends girl's lewd MySpace principal parody." Some quotes:

PHILADELPHIA -- A federal appeals court must decide whether a Pennsylvania middle school can suspend a student who, at home on her own time, created a lewd MySpace page about her principal.

The Web page, which boasted a fake name but an actual photo of the principal, was purported to have been posted by a 40-year-old Alabama school principal who described himself, through a string of sexual vulgarities, as a pedophile and sex addict. The Internet address included the phrase "kids rock my bed."

The case, argued in the 3rd U.S. Circuit Court of Appeals on Tuesday, raises broad issues about the limits of school discipline for off-campus behavior that affects the atmosphere at school. A rash of similar cases have surfaced across the country, with mixed rulings, but none has reached the U.S. Supreme Court.

The American Civil Liberties Union argues that students enjoy free-speech rights off-campus that protect such parodies, however vulgar.

"Parents give up some control at the schoolhouse gate," Mary Catherine Roper, an ACLU lawyer in Pennsylvania, told the appeals court judges. "When the students walk back out, they again are under control of their parents."

However, a lawyer for the Blue Mountain School District in Schuylkill County said the student's actions caused a disturbance that reverberated inside school and harmed the principal. Students were buzzing about the site for several days, and school administrators quickly became aware of it. * * *

[Judge D. Michael Fisher] nonetheless cautioned Blue Mountain about the price it might pay for winning the case.

"Do we want our school districts to become Internet police?" Fisher asked.

The Supreme Court has said that students enjoy some free-speech rights, such as the right to wear black armbands to protest the Vietnam War, while rejecting the right to lace a school speech with sexual innuendo.

In 2007, the high court upheld sanctions against a student from Alaska who carried a "Bong Hits 4 Jesus" sign at an off-campus school outing, reasoning that the student was promoting illegal drugs.

In a case nearly identical to the Blue Mountain case, a different 3rd Circuit panel is weighing a MySpace parody of a western Pennsylvania school principal that was argued in December. And in New York, the 2nd Circuit has upheld school discipline in two off-campus Internet speech cases after finding the disruption at the schools was "foreseeable."

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Courts in general

Environment - "EPA cites BP's Whiting refinery for Clean Air Act violations"

Posted this afternoon by the NWI Times, the story begins:

CHICAGO | BP's Whiting Refinery emitted a cancer-causing toxin in excess of federal standands from 2003 to 2008 which at times reached 16 times the acceptable limit, the U.S. Environmental Protection Agency alleged Tuesday.

The EPA alleges that for calendar years 2003 through 2008, BP failed to manage and treat benzene waste from the facility as required by the national emission standards for hazardous air pollutants. The facility’s 2008 report showed benzene waste was almost 16 times the amount allowed.

The story links to the federal NOV.

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Environment

Courts - "Judge Moves Appeal of Chrysler Sale to 2nd Circuit"

Updating this entry from yesterday, the NY Times is reporting this afternoon via its DealBook Blog:

A federal judge on Tuesday ordered an appeal of Chrysler’s sale to Fiat be heard by the Second Circuit Court of Appeals, a move lawyers for the American carmaker had sought in an effort to fast-track the deal.

Normally, appeals to bankruptcy court decisions are heard in federal district court, which sits directly above bankruptcy court in the judicial hierarchy. But cases may be moved directly to the appeals court if a judge finds the need to do so necessary.

Judge Arthur J. Gonzalez, who has overseen the Chapter 11 case, wrote in his order: “This case involves a matter of public importance, and an immediate appeal may materially advance the progress of this case.”

The appeal was filed by lawyers for a group of Indiana pension funds, who objected to the sale because they are seeking more compensation for the Chrysler secured debt that they hold. * * *

Late Sunday night, Judge Gonzalez approved Chrysler’s sale to Fiat, overruling the objections by the Indiana funds and others. On Monday night, he agreed to shorten a customary 10-day stay of the sale to four days, allowing Chrysler to complete the transaction by Friday at noon.

Should that happen, the Indiana funds would likely receive only damages if the appeals court rules in their favor, rather than an unwinding of the deal.

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Courts in general

Ind. Decisions - Supreme Court dismisses school finance plaintiffs' arguments

In Joseph and LaTanya Bonner, et al v. Mitch Daniels, et al, a 14-page, 4-1 opinion, Justice Dickson writes:

The plaintiffs/appellants, a group of Indiana public school students, appeal the trial court's dismissal of their complaint, which sought a declaratory judgment to establish that the Indiana Constitution imposes an enforceable duty on state government to provide a standard of quality education to public school students and that such duty is not being satisfied. The Court of Appeals reversed. Bonner v. Daniels, 885 N.E.2d 673 (Ind. Ct. App. 2008). We granted transfer and now affirm the trial court. Although recognizing the Indiana Constitution directs the General Assembly to establish a general and uniform system of public schools, we hold that it does not mandate any judicially enforceable standard of quality, and to the extent that an individual student has a right, entitlement, or privilege to pursue public education, this derives from the enactments of the General Assembly, not from the Indiana Constitution.
The Court relies on " Indiana Trial Rule 12(B)(6) [which] permits dismissal for '[f]ailure to state a claim upon which relief can be granted.'" From the end of the majority opinion:
By its own terms, Article 8, concerning education, does not speak in terms of a right or entitlement to education. * * * To the extent that an individual student may have a right, entitlement, or privilege to pursue public education, any such right derives from the enactments of the General Assembly, not from the Indiana Constitution.

We conclude that the framers and ratifiers certainly sought to establish a state system of free common schools but not to create a constitutional right to be educated to a certain quality or other output standard. In the absence of such a constitutional right to receive an adequate public education, the plaintiffs are not entitled to the declaratory relief sought regarding the Equal Privileges or Due Course of Law Clauses of the Indiana Constitution.

Conclusion. We hold that the facts stated by the plaintiffs' complaint, even if taken as true, would not support the relief requested and we therefore affirm the trial court's judgment granting the defendants' motion to dismiss.

Shepard, C.J., and Sullivan, J., concur.
Boehm, J., concurs in result with separate opinion. [which begins on p. 10]
Rucker, J., dissents with separate opinion. [which begins on p. 13]

[Justice Boehm's concurring opinion concludes:] In sum, the problems of Indiana’s system of funding public schools may be as severe as the plaintiffs allege, but I see no reasonable prospect of a judicial remedy that would be effective and properly balance the many considerations involved in redesigning the state’s educational system. The most the courts could order would be to direct the legislative and executive branches to go back to the drawing board and try again to construct an improved and constitutionally acceptable system of common schools. Because we are unable to articulate any clear or even vague direction as to what standards to apply in that endeavor, the courts should acknowledge that adequacy of education, like the level of taxation, is a matter the Constitution reserves to the legislative branch. I therefore concur in the majority’s ruling that this complaint must be dismissed.

[Justice Rucker's dissent concludes:]
I readily concede that whether plaintiffs can prevail in a trial on the merits of their complaint, or indeed whether they can survive summary judgment, is an open question. But to say in effect that plaintiffs have not presented a justiciable issue is simply wrong in my view. I would therefore reverse the trial court’s grant of the defendant’s motion to dismiss, and allow this matter to proceed.

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit rules on Illinois municipalities' ban on handguns

In NRA v. City of Chicago (ND Ill.), Chief Judge Easterbrook writes an interesting, 9-page opinion that begins:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008). * * *

Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982). * * *


Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Frederick William LaCava v. Daniel and Geoffrey LaCava, a 20-page opinion, Judge Robb writes:

Frederick William LaCava was sued by his adopted adult sons, Daniel and Geoffrey, for damages arising out of Frederick's alleged molestation of them when they were children. Frederick filed a motion for summary judgment alleging that the complaint was filed after the running of the statute of limitations. Frederick appeals the trial court's denial of his motion, raising four issues that we consolidate and restate as two: 1) whether Daniel and Geoffrey's claims are barred by the statute of limitations, and 2) whether, in the absence of expert opinion evidence regarding Daniel and Geoffrey's claims of repressed memory, their complaint can withstand summary judgment. Daniel and Geoffrey cross-appeal the trial court?s denial of their third motion for extension of time to respond to Frederick?s motion for summary judgment, alleging the trial court abused its discretion in denying them an extension for the purpose of gathering expert opinion evidence.

Concluding that issues of fact preclude summary judgment in Frederick's favor on the statute of limitations and that Daniel and Geoffrey did not need to designate expert opinion evidence to refute Frederick?s motion for summary judgment because of the position Frederick took with respect to their request for additional time to procure such evidence, we affirm. * * *

The parties agree that the statute of limitations applicable to Daniel and Geoffrey's action is found at Indiana Code section 34-11-2-4: “An action for . . . injury to person or character . . . must be commenced within two (2) years after the cause of action accrues.” Because Daniel and Geoffrey were minors when they were allegedly molested by Frederick, Indiana Code section 34-11-6-1, which provides that a “person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed,” also comes into play. A person is considered “under legal disabilities” if that person is less than eighteen years of age. Ind. Code § 1-1-4-5(24). Daniel turned eighteen on September 12, 1997, making his presumptive statute of limitations September 12, 1999. Geoffrey turned eighteen on January 23, 1999, making his presumptive statute of limitations January 23, 2001. The lawsuit was filed on June 21, 2005.

A cause of action in a tort claim accrues and the statute of limitations begins to run. [ILB - see discussion of fraudulent concealment docnine on pp. 11-12] * * *

Conclusion. Genuine issues of material fact regarding whether the applicable statute of limitations should be extended pursuant to the fraudulent concealment doctrine preclude summary judgment in Frederick's favor. Moreover, expert opinion testimony was not required to refute Frederick's motion because of the nature of Frederick's opposition to Daniel and Geoffrey's request for time to procure expert evidence. Accordingly, the trial court's order denying summary judgment is affirmed, and this case is remanded to the trial court for further proceedings. Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Updating: Training on new loan modification programs [Updated]

Updating this ILB entry from March 13th, which set out the schedule for the first round of seminars available to Indiana attorneys for education on how to handle mortgage foreclosure cases, a complete summer "Calendar of Upcoming Training Opportunities" all across the state is now available online. A press release today begins:

More than 25 training sessions designed for Indiana attorneys, mediators and judges to help homeowners facing foreclosure are scheduled for the summer months. The first session of the “Back Home In Indiana--Guiding Homeowners Through Foreclosure” campaign is June 3rd in Noblesville.

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Indiana Courts

Courts - "Big Issues Lurk Below Surface of Sotomayor Confirmation Hearings"

That is the headline to a lengthy article by Marcia Coyle of The National Law Journal, posted June 1, 2009. This part particularly caught my eye:

Sentencing scholar Douglas Berman of Ohio State's Moritz College of Law and author of the Sentencing blog, calls "inevitable" senators' questions about the death penalty and the Second Amendment and gun control.

Sotomayor is already drawing heavy criticism from gun rights advocates because of a panel decision that she joined in January, holding that prior Supreme Court precedent saying that the Second Amendment only applied at the federal level is still binding law: Maloney v. Cuomo.

But, Berman said, "what senators should be talking about is technology," seeking her views on microchip implants in felons, videoconferencing in prisons to conduct initial medical diagnoses and other functions, and the use of DVDs containing victim impact statements in death penalty and other trials.

"Almost invariably, technology has pros and cons, but this is the future," he said. "We're already working through GPS tracking of sex offenders. It's only a matter of time -- in fact, I think it's happening in Europe -- whether we implant microchips in every felon so we can keep track of them. Having a healthy respect for the benefits and the detriments of technology is extraordinarily important now in a new justice."

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Courts in general

Ind. Law - "Break for property taxes"

The Fort Wayne Journal Gazette has this editorial this morning, calling for a one-year reassessment delay:

Believe it for not, there was a time when Hoosiers could expect to receive their property tax bills each April. Half the bill was due in May, the other half in November.

Most years, property owners could expect a modest increase. And they knew that every five years, their properties would be reassessed, which could cause a bigger change in their bills.

But a generation of Hoosier homeowners has never known such stability.

In the decade since the Indiana Supreme Court rightly threw out the state’s property assessment system, getting and paying property tax bills has been anything but routine.

The first reassessment after the court ruling was late. Since then, changes in property tax laws and assessment procedures have produced wild fluctuations in tax bill dates and amounts nearly every year. Indeed, though the General Assembly “fixed” property taxes a year ago, only a handful of Indiana counties have mailed out tax bills this year – even though they were due in April.

Residents of most Indiana counties are still waiting for their bills – Allen County property owners may get theirs in late July, 3 1/2 months late.

With local officials struggling to complete the work to get out the 2009 bills – and to get going on 2010 bills so they are not late – they are also legally obligated to begin another complete property reassessment July 1 for the bills that will go out in 2012.

Those 2009 and 2010 bills must account for the complex and still-unknown effects of property tax caps. As the caps get lower, they will have more effect on the bills. Enough already.

A common-sense proposal to give all assessment officials a chance to catch up almost made it through this past session of the General Assembly but was tripped up by language technicalities. Lawmakers should adopt the proposed one-year delay in reassessment as part of the budget bill they need to pass in special session by June 30 to avert a state government shutdown.

Though the budget bill may well be the only piece of legislation lawmakers consider during the special session, the one-year delay directly affects all local government budgets and is appropriate for inclusion in the budget legislation.

Posted by Marcia Oddi on Tuesday, June 02, 2009
Posted to Indiana Law

Monday, June 01, 2009

Law - "Abortion Doctor Murder: A Threat to Access?"

Deborah Kotz, senior writer for U.S. News & World Report, has a column today on abortion access. Some quotes:

News that abortion provider George Tiller was gunned down yesterday in his church should make every woman sit up and take notice. Despite having a president and Congress who favor abortion rights and a new Supreme Court nominee who presumably does as well, the safety and support of healthcare practitioners who provide them are obviously critical if women are going to have access. * * *

I've had a hard time getting gynecologists to speak on the record about whether women in this country are having a harder time gaining access to abortions; one doctor told me that he didn't want his name or academic affiliation used for fear that he might have grant money withheld if he's associated with the procedure. It's no wonder the number of doctors performing abortions is dwindling.

Meantime, states are marching forward with their own efforts to limit a woman's access to abortion services. While they can't outlaw abortion outright under Roe v. Wade, state legislators can make it more difficult for women to obtain abortions. Indiana, for instance, has a bill pending that would require doctors who perform abortions to have admitting privileges at a hospital. Of the seven physicians performing abortions in Indiana, only one doctor has admitting privileges at a hospital, according to the Indianapolis Star.

A May report from the Guttmacher Institute provides this rundown of state laws currently on the books. Some make sense as a way to protect the well-being of pregnant women; others seem intended to restrict access to abortions.

  • Physician and Hospital Requirements: 38 states require an abortion to be performed by a licensed physician. 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 18 states require the involvement of a second physician after a specified point.

  • Gestational Limits: 36 states prohibit abortions, generally except when necessary to protect the woman's life or health, after a specified point in pregnancy, most often fetal viability.

  • "Partial-Birth" Abortion: 15 states have laws in effect that prohibit "partial-birth" abortion. 4 of these laws apply only to post-viability abortions.

  • Public Funding: 17 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. 32 states and the District of Columbia prohibit the use of state funds except in those cases when federal funds are available: where the woman's life is in danger or the pregnancy is the result of rape or incest. In defiance of federal requirements, South Dakota limits funding to cases of life endangerment only.

  • Coverage by Private Insurance: 4 states restrict coverage of abortion in private insurance plans to cases in which the woman's life would be endangered if the pregnancy were carried to term. Additional abortion coverage is permitted only if the woman purchases it at her own expense.

  • Refusal: 46 states allow individual health care providers to refuse to participate in an abortion. 43 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions.

  • State-Mandated Counseling: 17 states mandate that women be given counseling before an abortion that includes information on at least one of the following: the purported link between abortion and breast cancer (6 states), the ability of a fetus to feel pain (8 states), long-term mental health consequences for the woman (7 states) or information on the availability of ultrasound (6 states).

  • Waiting Periods: 24 states require a woman seeking an abortion to wait a specified period of time, usually 24 hours, between when she receives counseling and the procedure is performed. 6 of these states have laws that effectively require the woman make two separate trips to the clinic to obtain the procedure.
Re the Indiana bill, SB 89, the South Bend Tribune reported on April 30th that the "bill that opponents said would limit women's access to abortions in Indiana has died Wednesday after the General Assembly adjourned without reaching a compromise on the contentious legislation."

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to General Law Related | Indiana Law

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

Updating this ILB entry from May 29th, which quoted a Muncie Star-Press editorial headlined "Please end this now, Jim," the Star-Press is now reporting "2007 mayoral race over; Mansfield ends appeals." Rick Yencer's brief report this afternoon begins:

Democrat James Mansfield won‘t appeal a recent court ruling upholding Republican Mayor Sharon McShurley’s November 2007 election as the city’s chief executive.

“To continue the effort through the court system is likely to achieve similar results,” Mansfield said. “Therefore, I have decided not to appeal the ruling.”

The Indiana Court Appeals affirmed a trial court’s decision last week to deny Mansfield’s request for a special election for disenfranchised vpters in Precinct 46, where absentee ballots were disqualified.

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

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 29, 2009

Here is the Clerk's transfer list for the week ending May 29, 2009. It is two pages long.

One case was granted transfer, David A. Shotts v. State of Indiana, discussed in this ILB entry May 28th.

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. Note that the search is now current through the May 22nd list.

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, June 01, 2009
Posted to Indiana Transfer Lists

Law - "Recession Imperils Loan Forgiveness Programs"

The NY Times has this story, by Jonathan D. Glater, on May 26th. A quote:

From Kentucky to Iowa to California, loan forgiveness programs are on the chopping block. Typically founded by their states to help students pay for college, the state agencies and nonprofit organizations that make student loans and sponsor these programs are getting less money from the federal government and are having difficulty raising money elsewhere as a result of the financial crisis.

The organizations say the repayment programs have been hurt by a broader effort by Congress to tackle the high cost of the federal student loan program by reducing subsidies to lenders.

Curbing the programs will make it harder to lure college graduates into high-value but often low-paying fields like teaching and nursing. * * *

The Kentucky Higher Education Student Loan Corporation is at the extreme in cutting payments to people in midstream who have already finished their educations and are repaying loans, but organizations in many other states have curtailed their new offers to prospective teachers, nurses and others.

On May 29th the NY Times had this story, headed "Students Relying on Loans Wonder Whether Forgiveness Will Last." The long article was reported by Jonathan D. Glater, Ron Lieber, Tara Siegel Bernard and Paul Sullivan and written by Mr. Glater and Mr. Lieber. Some quotes:
If you want to become a public defender, Georgetown University can be a great place to get your legal education. So Heather Gatnarek expects to take on well over $100,000 of debt to get her law degree there and hopes to graduate in three years.

Here’s the problem, though. She’s relying on a new federal program that forgives part of the student loan debt for graduates who enter public service fields. And she was scared out of her mind when she read a New York Times article on Wednesday on problems in Kentucky, where significant cuts in one of its loan forgiveness programs have put thousands of indebted public school teachers and nurses in a painful financial squeeze.

“I would be completely up a creek” without a loan forgiveness program, Ms. Gatnarek said. “I don’t know what I would do. Marry someone rich, I guess. People say that I could just do corporate law for a few years, but I wouldn’t last two days.” * * *

The good news here is that the federal Department of Education says that almost all its loan forgiveness programs are safe. “It doesn’t depend on some future Congress for us to come through on most of these,” said Robert Shireman, deputy undersecretary of education. “The majority of them get appropriations for the life of the programs.”

But many states say that financing their loan forgiveness programs depends on state budgets. Given declining tax revenues, that doesn’t inspire much confidence. On Thursday, for instance, Gov. M. Jodi Rell of Connecticut proposed cutting the state’s minority teacher grant program, which awards a stipend that is intended to help students pay off their loans, said Constance Fraser, a Connecticut Department of Higher Education spokeswoman.

From there, the article becomes pro-active, addressing students directly:
So this is where you come in. We’ve created an interactive table at nytimes.com/yourmoney with everything we’ve found so far. If your lender (or law firm or other employer) is not there and you’d like us to ask them to state whether they intend to stand behind their loan forgiveness program, write to yourmoney@nytimes.com.

We intend to finish this database in the next few weeks and then leave it up, with updates, as a sort of reality check.

Meanwhile, a few tips for those of you who are thinking about borrowing a big pile of money or are in the middle of doing so. If you live in a state where loan forgiveness may be in jeopardy, call your state representatives and read them the riot act. It’s hard to imagine that the cuts in the Kentucky program, for instance, will stand. Ken Winters, a Republican state senator there, said he expected the issue of financing for the program to come up in January. We’ll be watching.

Also, ask tough questions when any program is making what seems to be a promise on loan forgiveness. Which loans are eligible? All student loans or only certain types? Is there a limit on the debt that can be forgiven? Is the program guaranteed? By whom? With what funds? For precisely which kinds of public service? Must you apply, and is it selective? And finally, is there a federal program that may make up for some of your state’s forgiveness, even if the federal benefits aren’t as generous?

We hate to get all “X-Files” on you, but Trust No One. Sure, The Truth May Be Out There, but it sure seems as if the truth can change in ways that can cost innocent public servants tens of thousands of dollars.

So far, the Indiana section of the interactive table is blank.

Thanks to Above the Law for highlighting the NYT stories.

As I read the Times story, federal student loan forgiveness programs, such as the John R. Justice Prosecutors and Defenders Act (see earlier ILB entries about this program), are not in danger.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to General Law Related

Courts - North Carolina Judge reprimanded for ex parte "friending" of attorney for the defense

Ryan Jones of the Lexington, North Carolina Dispatch, reports today:

After a formal investigation by the North Carolina Judicial Standards Commission, District Court Judge B. Carlton Terry Jr. was issued a public reprimand for using the social networking site Facebook to discuss a case being tried before him.

According to the public reprimand, which was issued April 1, Terry presided over a child custody and child support hearing from Sept. 9 to Sept. 12, 2008, in Iredell County. During this time, Terry and Charles A. Shieck, attorney for the defendant, became “friends” on Facebook and began posting messages referring to aspects of the case, such as when it would be settled and whether or not one of the parties had been guilty of an affair.

Terry was also cited for using the search engine Google to conduct independent research on the plaintiff’s business Web site even though it had never been offered or entered into evidence during the hearing. * * *

According to the reprimand, the Judicial Standards Commission found that “Judge Terry’s actions constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”

Also according to the reprimand, Terry agreed that he would refrain from repeating such action in the future, familiarize himself with the Code of Judicial Conduct and refrain from retaliating against any person who cooperated with the commission in the matter.

As mentioned in this May 7th ILB entry, Ind. Code of Judicial Conduct Rule 2.9(C) provides:
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.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Courts in general

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

In U.S. v. Lewis (ND Ind. Judge Springmann), a 12-page opinion, Judge Evans affirmed the district court. Here is a quote:

The strange manner in which the DVD was admitted into the record precludes Lewis from successfully meeting this burden. There is no evidence in the record that the jury ever heard Lewis’s statement about the prior robbery. No portions of the DVD were played for the jury. And although two officers testified about the interrogation, neither mentioned Lewis’s prior conviction. The unredacted DVD—rife with references to the prior conviction—was nonetheless admitted into evidence, and the jury had access to a DVD player during its deliberation. But there is no way to know (from the record before us) if the jury actually watched the DVD, let alone the parts that include Lewis’s admissions. The jury deliberated for a little less than four hours, which, after accounting for even a minimal amount of time for discussion, suggests that it did not view the whole thing even if it viewed any portion of it at all. Lewis must prove that the admission of the evidence resulted in an “actual miscarriage of justice,” Avila, 557 F.3d at 820 (emphasis added), which is impossible since it’s questionable whether the jury actually watched the DVD.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Timothy Hathaway v. State of Indiana, an 8-page opinion, Sr. Judge Barteau writes:

Timothy Hathaway (“Hathaway”) appeals from his conviction after a bench trial of unlawful possession of a firearm by a serious violent felon, a Class B felony. Hathaway presents the following restated issue for our review: whether the trial court erred by allowing into evidence a firearm recovered during a warrantless search of the car Hathaway was driving when he was arrested for driving while suspended, violating the Fourth Amendment of the United States Constitution and § 11 of the Indiana Constitution. We reverse and remand. * * *

Hathaway argues that the handgun found during the warrantless search of the vehicle he was driving should have been suppressed and should not have been admitted at trial. Hathaway contends that since the search was invalid, the handgun should have been suppressed, and its admission into evidence was harmful error, requiring a reversal of his conviction for possession of a firearm by a serious violent felon. * * *

When a search or seizure is conducted without a warrant, the State bears the burden of proving that an exception to the warrant requirement existed at the time of the search or seizure. Id. Here, Officer Wilkerson testified that the search was a combination of a search incident to arrest and an inventory search prior to towing the vehicle. * * *

Here, there were no facts to indicate that Officer Wilkerson needed to search the car in order to find and preserve evidence connected to the crime of driving while suspended. * * * Under the facts of this case, the search of the vehicle incident to Hathaway's arrest for driving while suspended was unreasonable under the Indiana constitution. Furthermore, the United States Supreme Court has granted certiorari in Meister and has remanded the matter to this Court for reconsideration in light of the holding in Gant. * * *

Because the search of the vehicle Hathaway was driving incident to his arrest for driving while suspended was unreasonable under the Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution, we reverse Hathaway's conviction and sentence for unlawful possession of a firearm by a serious violent felon and order that the same be vacated.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Anthony R. Bradford v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Ind. App.Ct. Decisions

Court - Blogger Tom Goldstein featured in Washington Post

Howard Kutz's Washington Post media column today features Tom Goldstein, founder of ScotusBlog. Some quotes from the long article:

What makes the brash and balding 38-year-old such a hot media property is Scotusblog, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like "the world's biggest idiot. I was out there on a limb."

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site's host. Despite the unorthodox arrangement, Goldstein says his staff, which includes veteran Supreme Court reporter Lyle Denniston, has complete independence. "Lyle could write that our clients are completely insane and evil and there'd be nothing to stop him," Goldstein says in his 12th-floor office with a sweeping view of the Washington Monument.

Denniston, part of a nine-person staff of lawyers and researchers, likes the arrangement: "Tom leaves me alone in all respects. I have no assignments, no deadlines, no second-guessing."

Goldstein makes some concessions to his profession. He recently moved Akin Gump clients from the blog's list of "Petitions to Watch" at the high court, putting them at the bottom to avoid an appearance of favoritism. And Goldstein says he would stay silent rather than trash a court nominee who was likely to be confirmed. "My ethical role as a lawyer is not to wound my client," he says.

One measure of Goldstein's commitment to Scotusblog, which accepts no advertising: He keeps it afloat with up to $100,000 a year from his own pocket. "He's got some serious pride of ownership," says Goldstein's wife, lawyer Amy Howe, who also blogs at the site. "You've created this institution that people read pretty widely. He is the puppet master." The blog recorded 115,000 hits on the day of Sotomayor's nomination -- more than quadruple its usual traffic.

The blog is "enormously helpful to us," says Akin Gump Chairman Bruce McLean, because lawyers and potential clients see it as "directly connected to the prestige of the firm." The same is true, he says, for Goldstein's media profile. The New York Times, Los Angeles Times, Washington Post, USA Today and Chicago Tribune all quoted Goldstein on Sotomayor.

"He's very adept at being first or nearly first in terms of offering a quick take," says Joan Biskupic, Supreme Court reporter for USA Today. "He's got a very good knack for both the law and the needs of journalists on all things legal. He also knows how to distill things that help people understand what the law's about."

A former intern for Nina Totenberg at National Public Radio, Goldstein buttressed his reputation as a soothsayer in 2005 by writing on the morning that George W. Bush picked Harriet Miers that her nomination was doomed. Goldstein is a Democrat, but journalists regard him as an honest broker. He has, for instance, praised Clarence Thomas as an underrated justice. * * *

Footnote: Scotusblog got shout-outs yesterday on both "This Week" and "Face the Nation." Not bad for a fairly dense legal blog.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Courts in general

Law - More on: Chicago Mayor Dailey privatizes City parking meters

Updating this ILB entry from Dec. 6, 2008, you may wonder, how has the privatization turned out?

A story in the Saturday NY Times displayed the answer with this rhyming headline: "Long a Driver’s Curse, Chicago Parking Gets Worse ." Some quotes:

CHICAGO — Motorists here long ago learned how to park a fine line.

Miss the diagonal markings on your spot? That’s a $50 violation. More than 12 inches from the curb? $25, payable to the city. Two overdue tickets? You’re getting a boot.

But while every city has its vehicular regulations, Chicago under Mayor Richard M. Daley has earned the reputation of being ruthlessly demanding on motorists as a way to collect much-needed revenue, particularly when it comes to the city’s parking meters.

Now, the city is suffering what seems like a motorists’ meltdown. * * *

In an effort to plug a gaping budget deficit, Mr. Daley pushed a deal through the City Council a few months ago that privatized management of the parking meters for 75 years in exchange for a lump-sum payment of $1.15 billion.

In some areas, rates then rose fourfold. At most meters, there was no more free parking on holidays or Sundays, and some meters must be fed 24 hours a day, seven days a week.

Most vexing to drivers, however, is that thousands of newly installed credit-card and coin-taking parking meters simply do not work. They have been charging the wrong rates, failing to issue receipts (the only proof of payment) or not accepting money.

On Wednesday, so many of the downtown meters were out of order and spewing out error messages that the city did the unthinkable: it stopped writing parking tickets.

And covering it all is The Expired Meter Blog.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to General Law Related

Ind. Law - "It's the Law: Indiana Good Samaritans are protected from civil liability"

Ken Kosky's NWI Times' "It's the Law" column today looks at Indiana's Good Samaritan law. Some quotes:

Indiana law generally does not require people to be Good Samaritans, but it does protect those who help a fellow citizen in need.

The law states that a person who comes upon the scene of an emergency or accident and who "in good faith, gratuitously renders emergency care ... is immune from civil liability for any personal injury that results ... ."

Porter County Prosecutor Brian Gensel said the law is designed to let people do the right thing without fear of being sued.

"People don't want to be sued for getting involved and trying to help somebody," Gensel said.

"If the actions of a Good Samaritan are reasonable under the circumstances, this statute would protect them from civil liability."

The protection stands unless the Good Samaritan's actions amount to "gross negligence or willful or wanton misconduct," the law states.

Although people are generally protected if they get involved, Indiana law generally does not require people to do things like save a drowning person, perform CPR on a person who has collapsed or pull a person from a burning car. And people who have information that could help solve a crime are not required to come forward.

Still, Gensel said the law does require people who know of or witness abuse to a child or elderly person to report it to law enforcement. And people who are ordered to assist a police officer can be charged with refusal to aid an officer.

Here are two columns we missed:

"It's the Law: Don't mix boating and alcohol" published on May 18th.

"It's the Law: The law prohibiting junk vehicles" published on May 25th.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

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

  • None currently scheduled.

Next week's oral arguments before the Supreme Court (week of 6/8/09):

Thursday, June 11th

  • 9:00 AM - Robert E. Money v. State of Indiana - In a "blind plea," Money pleaded guilty to a class A felony and to being an habitual offender. The Floyd Superior Court denied post-conviction relief on Money's claim that counsel had been ineffective for failing to advise Money he had not been eligible for an habitual offender enhancement. The Court of Appeals affirmed in an unpublished memorandum decision. Money has petitioned the Supreme Court to accept jurisdiction over the appeal. [Money v. State (Ind. Ct. App. Dec. 18, 2008)]

  • 9:45 AM - Suzanne Hamilton v. Richard W. Hamilton - Suzanne Hamilton filed an action in Indiana to enforce a Florida court order requiring Richard Hamilton to pay child support. The Vanderburgh Superior Court entered multiple orders that found Richard in contempt, but stayed the related jail sentence on condition Richard made child support payments in an amount less than that ordered by the Florida court. On Suzanne's appeal from such an order, the Court of Appeals affirmed, concluding the Superior Court had not modified the Florida child support order in violation of the Uniform Interstate Family Support Act and Richard was not in contempt of the Superior Court order. Hamilton v. Hamilton, 895 N.E.2d 397 (Ind. Ct. App. Oct. 29, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

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 6/1/09):

  • None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 6/8/09):

Tuesday, June 9th

  • 1:30 PM - Ruben Maldonado vs. State of Indiana - This is a post-conviction being appealed by appellant. Whether or not the post-conviction court was incorrect to find the evidence which was barred was covered by the Rape Shield Statute. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Barnes. [Where: Indiana Court of Appeals Courtroom -- WEBCAST]

Wednesday, June 10th

  • 2:00 PM - Daniel Reed vs. State of Indiana - A jury convicted Daniel J. Reed, Jr., of class A felony dealing in methamphetamine; class D felony neglect of a dependent; and class A misdemeanor possession of marijuana. In this direct appeal, he raises the following issues: (1) that the State's initial dismissal of a class B felony dealing in methamphetamine charge and subsequent refiling of the charge as a class A felony violated his substantial rights and his right to a speedy trial; (2) that the trial court erred in admitting illegally-obtained evidence; and (3) that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). The Scheduled Panel Members are: Judges Riley, Darden and Barnes. [Where: Indiana Court of Appeals Courtroom -- WEBCAST]

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, June 01, 2009
Posted to Upcoming Oral Arguments

Courts - "Judge Clears Way for Sale of Chrysler to Fiat"

So reports Michael J. de la Merced of the NY Times in this story:

A federal judge on Sunday night cleared a path for Chrysler to exit bankruptcy by approving a sale of most of the carmaker’s assets to a new entity to be run by Fiat of Italy.

Judge Arthur J. Gonzalez of the United States Bankruptcy Court for the Southern District of New York approved the government-backed plan after three days of marathon hearings on the proposal. On Friday, testimony and arguments in federal bankruptcy court in Manhattan lasted nearly 12 hours. * * *

Even with the approval, the deal’s closing could be delayed. Lawyers for three Indiana state funds are expected to appeal the decision. And an automatic 10-day stay is in effect to allow for any appeal, though Chrysler’s lawyers will almost certainly seek to shorten that period.

The three funds, which include pensions for Indiana teachers and police offers, have objected to the sale, arguing that they deserve more than the 29 cents on the dollar that they and other secured lenders will receive as repayment. Chrysler holds about $6.9 billion in secured debt; of that, the Indiana funds hold about $42.5 million, or about 1 percent. They acquired those holdings in July 2008 for 43 cents on the dollar.

Lawyers for these funds have questioned whether Chrysler could have fetched a better deal than the Fiat transaction or through a liquidation.

Other objectors included several groups of Chrysler dealers, representing some of the 789 that will be cut as part of the Fiat sale. These groups argued that Fiat should be forced to accept more dealers, or that the deal should be delayed to give them more time to change Fiat’s mind.

Posted by Marcia Oddi on Monday, June 01, 2009
Posted to Courts in general