Wednesday, July 01, 2009
Courts - "Ohio Plaintiff in Private Lawsuit Has No Right to Discover Confidential Medical Records of Non-Parties"
Recalling these ILB entries from late 2006, under the heading "The Planned Parenthood Records Decision" (wherein the Indy Star wrote: "Attorney General Steve Carter is demanding the medical records of 73 low-income patients from Planned Parenthood of Indiana as part of an investigation that critics say tramples on Hoosiers' privacy rights"), the Supreme Court of Ohio today ruled that Planned Parenthood does not have to turn over abortion records to parents. The summary posted by the Ohio Court begins:
The Supreme Court of Ohio ruled today that, under the state laws in force at the time their claim arose in a private civil lawsuit against Planned Parenthood, the parents of a Cincinnati teenager who obtained an abortion at a Planned Parenthood clinic are not entitled to discover confidential child abuse reports or medical records of other minors who were treated at the same clinic.How Appealing has collected the links and made them available here.
Law - "Jackson’s Will Could Set Off Legal Battle Over Estate"; well duh!
On Nov. 28, 2007, the ILB wrote:
The Brooke Astor estate dispute promises to become the stuff of trusts and estates casebooks, moving along-side the Anna Nicole Smith estate fight. (See this March 11, 2007 ILB entry titled "Anna Nicole Smith bankruptcy and estate issues become law school case studies.")Solomon Moore and Liz Robbins of the NY Times write today's lengthy report on the Michael Jackson will and related matters. The Times makes a copy of the document available here, noting:
See also this list of Brooke Astor entries
The 2002 document leaves Michael Jackson's entire estate to a family trust. It names his mother, Katherine Jackson, as legal guardian of his three children and beneficiary of the trust. If she were incapacitated or died, the singer Diana Ross would get custody of his children.
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Martin Oil Marketing, LTD and Speedway SuperAmerica, LLC v. John L. Katzioris , a 16-page, 2-1 opinion, Judge Friedlander concludes:
In summary, Martin Oil and SSA presented evidence that Katzioris gave ESG permission in the fall of 1994 to enter his property to test for contamination and to conduct remediation efforts if necessary, evidence that Katzioris by his own admission is unable to contradict. Thus, as of that time, Katzioris possessed sufficient information to cause a reasonable person to inquire further in order to determine whether he had suffered a legal wrong. This occurred long before August 9, 2000, the date before which said information and knowledge defeats Katzioris‘s claim by application of the six-year statute of limitations. The trial court erred in denying the Appellants‘ motion for summary judgment on that basis. Judgment reversed.In Scott A. Spitler v.State of Indiana , a 7-page opinion, Judge Robb writes:
VAIDIK, J., concurs.
NAJAM, J., dissents with opinion. [that begins, at p. 12] I respectfully dissent. The majority concludes that Katzioris‘ equivocal testimony amounts to a concession that he knew or should have known of the Appellants‘ conduct as early as 1994, thereby causing the statute of limitations to have run well before he filed this action in 2006. I would hold that the evidence favorable to Katzioris, the nonmoving party in this summary judgment appeal, is sufficient to create a genuine question of material fact regarding what he actually knew or should have known and when that knowledge should be attributed to him. As such, I would affirm the trial court‘s denial of the Appellants‘ summary judgment motion.
Following a guilty plea, Scott Spitler was convicted of aiding escape, a Class C felony, and sentenced to eight years, with seven years to be executed at the Department of Correction (“DOC”) and the remainder suspended to probation. Spitler appeals his sentence, contending that it is inappropriate in light of the nature of his offense and his character. Concluding that his sentence is not inappropriate, we affirm. * * *NFP civil opinions today (3):
In other circumstances, we might say that a maximum sentence is inappropriate for a defendant with character such as Spitler's – with minimal criminal history, many positive attributes, and strong support. * * * However, the nature of his offense is so unique and egregious as to substantially outweigh the positive aspects of his character. Spitler has failed to persuade us that his eight-year sentence is inappropriate.
NFP criminal opinions today (5):
Ind. Decisions - Supreme court posts one from yesterday and one for today
State of Indiana v. Anthony W. Pollard is the opinion I wrote up here yesterday, although it hadn't been posted, and in fact still wasn't until this afternoon. In this 12-page opinion, Justice Rucker writes:
The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes. * * *in State of Indiana v. Jason Cioch, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute 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 trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) (declaring “courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant‟s constitutional rights”). We affirm the trial court‟s judgment.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., concurs in result and concurs in the opinion except as to Part B3, believing the absence of a scienter element for certain forms of child molesting is not significant in evaluating the punitive character of this statute.
The defendant in this drunk driving prosecution persuaded the trial court to suppress the results of his blood alcohol breath test on grounds that the test machine had not yet been adjusted to reflect daylight saving time since it took effect a few days earlier and the police officer wrote the actual time of day by hand on the test results printed by the machine.
We hold the evidence should not have been suppressed. * * *
The State asserts the trial court erred in suppressing the breath test results merely because of an inaccurate timestamp on the breath test print out. We agree. * * *
The State argues that Officer Chin followed each of the required steps for administering the test and that the procedures require only that the operator to check the evidence ticket for the correct date and time and are silent as to what course of action the operator should take if an anomaly occur.
While Indiana courts have yet to discuss whether the accuracy of the time stamp has anything to do with the reliability of the test results, the Missouri Court of Appeals has discussed the issue. * * *
We find these decisions instructive. Here, Officer Chin followed each of the required steps of the procedure. The record does not indicate that he did anything that calls into question the reliability of the instrument or the evidence ticket when he noticed the erroneous timestamp and wrote the actual time of day on it.
The best authority Cioch offers in support of his position is State v. Johanson, 695 N.E.2d 965 (Ind. Ct. App. 1998). In Johanson, the Court of Appeals affirmed a trial court’s suppression of test results where the machine printed a blank ticket and the operator wrote in all the test information by hand from what he saw on the screen. Without reflecting on whether that was adequate ground for suppression, we think the officer’s action in this instance, noting a Daylight Savings difference, raises only a de minimus concern about the accuracy of the test results. We hold that this evidence is admissible.
Conclusion. We reverse the order of suppression.
Ind. Decisions - "What's next for David Camm? Case may not be remanded to trial court until fall"
Matt Thacker of the New Albany N & T has this story today. Some quotes:
After two trials and two convictions overturned on appeals, David Camm’s attorneys say they expect his case will go before a jury for a third time.
Floyd County Prosecutor Keith Henderson said at a press conference Friday that he has not decided whether he will try the case again. * * *
Henderson and the office of the attorney general, which handled the appeals process, will ask for a rehearing from the Supreme Court. They have 30 days to file a request, and the defense has 20 days to respond.
It could take another month or two before the Supreme Court decides whether to hear the case again, said Stacy Uliana, an attorney for Camm.
The case will then be remanded to Warrick County, and Henderson will decide whether to file new charges. If and when a decision is made, the defense will file motions to change venue and reduce bond.
“Nothing is going to happen probably until the fall,” Uliana said.
Location for a third trial
Camm’s attorneys are concerned about all the media publicity the case has received. That means a third trial could take place in Northern Indiana.
“I believe we have to get as far away from the media attention as possible. Alaska would be nice,” Uliana said jokingly.
Katharine Liell, another attorney for Camm, said another option is to bring jurors from another part of the state to Warrick County and hold the trial there again.
She said they will look into how much media coverage the case received in places such as Indianapolis and Northern Indiana cities.
“I think there needs to be a little bit more investigation as to how much [the case] has permeated throughout the state,” Liell said.
The murders have been the subject of national coverage — both filmed and written — and attracted the attention of CBS’ “48 Hours” program.
A defense motion to change venue was rejected before Camm’s first trial. Prior to the second trial, the defense filed a motion to change venue and the prosecution did not oppose. The two sides agreed upon Warrick County.
If they cannot agree on a location this time, Uliana said a judge will likely choose three counties and the prosecution and defense will each get to strike one county, leaving one remaining. * * *
Possible changes with third trial
New scientific discoveries in the past three years could uncover new evidence. Liell referenced “touch DNA” — a relatively new method of analyzing skin cells left behind when a suspect touches a victim or other crime scene evidence.
Liell said that all of Camm’s defense costs for the past two trials and the appeals procedures have been paid for privately. Now, Camm is indigent, and the state will have to pay for Camm’s defense in the third trial.
Liell and Uliana continue to represent Camm in the immediate future, but have not decided whether to go through another trial.
“We have to look at the time, money and emotional cost,” Liell said.
Ind. Law - "Ex-state rep. Oxley charged over claim"
The Marion County prosecutor filed charges today against a former state lawmaker and recent candidate for lieutenant governor who avoided a public intoxication arrest by misrepresenting himself as a legislator.
Former Rep. Dennie Oxley II, 38, faces charges of impersonation of a public servant, a Class A misdemeanor, and public intoxication, a Class B misdemeanor. A warrant was issued after charges were filed this morning in Marion Superior Court.
Ind. Courts - Still more on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge
Updating this ILB entry from yesterday, Jon Murray reports today in the Indianapolis Star:
Kristina H. Nelson, 43, who is the wife of Judge William Nelson, is accused of forging the signature of another judge -- her sister-in-law, Judge Sheila A. Carlisle -- in a bid to stop the foreclosure of the Nelsons' home.
But which Nelson home became a matter of dispute Tuesday.
James Voyles, the attorney for Kristina Nelson, said that court documents identified the wrong home owned by the couple.
The affidavit filed in court Monday and a police report both listed an address for the couple's home in Marion County's Geist area. The Indianapolis Star published a photo of that house on the front page Tuesday.
But Voyles said the matter actually concerns the couple's vacation cabin near Rockville, Ind.
The cabin wasn't mentioned in the police documents, but Voyles said it is the only house owned by the Nelsons with a mortgage from EverHome Mortgage Co., the lender identified by police.
A foreclosure was initiated on the Geist home last year by Charter One Mortgage, according to Marion Circuit Court records. But Voyles said the couple no longer is in danger of losing that house.
"The notice that EverHome sent to her was for the other house," Voyles said, referring to the cabin.
Environment - More on "A Rough Term in Supreme Court for Environmentalists Draws to a Close"
Updating this ILB entry from June 26th, Marcia Coyle of the National Law Journal has a story today headed "High Court Losses Stun Environmentalists: Environmentalists are 0-for-5 at the Supreme Court this term." Some quotes:
Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars.
The defeats left the environmental community -- and even its traditional antagonist in these cases, the business community -- wondering where the Court is heading in this increasingly important area of the law.
Is the Roberts Court pro-business, anti-environment, pro-government -- or something else? Their answers are as varied as the issues raised in the five cases that the justices decided.
What is clear is the Court's heightened interest in environmental law. The justices have decided 15 cases in just the past five terms, but in none of those terms, in fact in none of the past nine terms, have environmentalists experienced a complete shutout. * * *
For environmentalists, the defeats were particularly painful because their interests had prevailed in the courts below in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so you wonder if the Court is making some strategic choices in the cases it picks," said Jonathan Cannon, director of the environmental and land use program at the University of Virginia School of Law.
Based on the five decisions, the trend this term is "business always wins, even when the government's interest is to the contrary," said John Hanson, a partner at Washington's Beveridge & Diamond who represents businesses in environmental litigation.
Ind. Decisions - "Supreme Court won't shift casino funds to E.C."
The Supreme Court's decision yesterday in the case of East Chicago v. East Chicago Second Century, Inc. (ILB summary here), is the subject of two stories today in the Lake County papers.
Dan Hinkel reports in the NWI Tmes:
The Indiana Supreme Court has denied the city of East Chicago's bid for a court order to route millions of casino dollars back to the city. The justices also ruled the Indiana Gaming Commission can alter the agreement that funnels riverboat gambling money to two private groups.Here is a Gary Post-Tribune staff report that begins:
Lawyers for Second Century and the Foundations of East Chicago declared the court's 21-page mixed decision Tuesday a victory in the long-running war over casino funds.
The fight centers on a deal sealed by former East Chicago Mayor Robert Pastrick to route casino money to the nonprofit Foundations and Second Century, a for-profit company run by Pastrick allies. Current Mayor George Pabey wants those economic-development funds back under city control.
The court's decision not to order the funds shifted to the city means the Pabey administration was "the big loser" in Tuesday's decision, said J. Lee McNeely, a lawyer for Second Century.
"The court agreed with us," McNeely said. "In fact, the supervisory authority over this agreement is the Gaming Commission, and we're comfortable with that." * * *
The decision's centerpiece is the ruling that the Gaming Commission can alter the agreement that sends cash to the controversial groups. Under the deal signed in 1994, 3.75 percent of the casino's annual revenue goes to economic development. The city gets 1 percent. The two nonprofit Foundations of East Chicago each take a 1 percent cut, and a 0.75 percent subsidy goes to Second Century, a firm created to build affordable housing.
Peter Rusthoven, a lawyer for the Foundations, said Tuesday his clients are "fine" with the Gaming Commission's overseeing the agreements. Second Century's lawyer, McNeely, said the for-profit -- run by Pastrick allies Thomas Cappas and Michael Pannos -- is "perfectly prepared" to address the agreements with the Gaming Commission.
"Every penny is accounted for. There's nothing mysterious there," he said.
Gaming officials could not be reached Tuesday to explain what the ruling might mean for the commission.
The justices also ruled on a series of lower-court decisions from the case's Byzantine legal history. In its decision Tuesday, the Supreme Court remanded several counts to be heard in the Marion County trial court. The justices ruled that lower courts erred in using statutes of limitations to dismiss several of the city's claims against Second Century and the Foundations.
McNeely predicted a "lot more litigation" in the case.
The legal arrangement that pays the for-profit East Chicago Second Century Inc., and two other not-for-profit entities a portion of East Chicago casino gambling revenue can be modified under Indiana Gaming Commission rules, the Indiana Supreme Court ruled.
In a 21-page opinion, the court found that the letter agreement that provides for 0.75 percent of the gross receipts paid by the East Chicago casino to East Chicago Second Century Inc., could be subject to modification through the gaming commission administrative process with input from city officials.
The city receives 1 percent, as do two not-for-profit organizations, Twin City Education Foundation, and the East Chicago Community Foundation.
East Chicago's casino license has changed ownership several times from 1996 when Showboat first began operations. Harrah's Entertainment Inc., took over the license in 1999, and in 2005, after the commission approved transfer of the license to Resorts East Chicago, it asked the attorney general's office to investigate the financial operations of Second Century.
Ind. Courts - "State targets prosecutor's lapsed license"
Ruth Ann Krause reports today in the Gary Post-Tribune:
Newton County Prosecutor J. Edward Barce, who is serving as special prosecutor in a case involving a Gary lawyer charged with trafficking with an inmate, let his law license go into inactive status for more than three years.
Until four months ago, Barce's license had been on inactive status since Aug. 5, 2005, according to Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission. Barce reactivated his license on Feb. 23, Lundberg said.
Barce's license status was one of the reasons cited by Jerome Taylor in seeking the dismissal of the trafficking with an inmate case Barce filed in June 2007 against Taylor's client, Gary attorney Carl Jones.
Taylor asked Lake Superior Court Judge Sheila Moss to dismiss the case in a March 19 filing and argued that Barce's inability to practice law in Indiana amounted to prosecutorial misconduct.
In a June 11 ruling, Moss found that Jones hadn't been harmed or prejudiced by the fact that Barce's law license was on inactive status. * * *
As attorney for the commission, Lundberg said he filed a complaint April 8 charging Barce with misconduct for functioning as Newton County prosecutor and as a special prosecutor in other cases with an inactive law license. A hearing is scheduled for Oct. 16 in Lafayette. If the court finds misconduct has occurred, it could take action ranging from a private reprimand to a permanent disbarment.
As for what happens to cases Barce was involved in as the elected prosecutor in Newton County, Lundberg said Barce's license status "raises a cloud over those cases. I suppose anyone who was convicted could test the validity of that conviction."
Two other Lake County cases had been referred to Barce for review because of potential conflicts in the Lake County prosecutor's office. They include a May 28 shooting outside Bennigan's in Gary in which one man was wounded. Gary lawyer Jerry Peteet, who was identified as a suspect, has denied involvement.
The second case stems from an October 2007 crash in Gary in which Gary lawyer Cornell Collins was arrested after allegedly driving drunk and leaving the scene. Collins' wife, Rochelle Moody, works in the prosecutor's office.
Environment - Still more on: "EPA secrecy on coal-ash list worries lawmakers: Some of 44 'high hazard' sites might be in Kentucky, Indiana"
The “high hazard” rating applied to sites where a dam failure would most likely result in a loss of human life, the environmental agency advisory said, but did not assess the structural integrity of the dam or its likelihood of failure. * * *
The E.P.A. list was based on responses to a questionnaire that the agency sent to utilities and power plants. Environmentalists said they did not believe the list was complete because it was based on self-assessment.
“T.V.A. ranked its own dams, and it didn’t rank any of its dams ‘high hazard,’ ” said Lisa Evans, a lawyer for Earthjustice. * * *
Ms. Evans said dam integrity was not the only or even the central problem with coal ash dump sites. In 2007, an E.P.A. report identified 63 sites in 26 states where the water was contaminated by heavy metals from such dumps, including three other Tennessee Valley Authority dumps. Experts say coal ash should be stored in lined landfills to prevent contamination, but the agency questionnaire did not ask whether the sites were lined.
David Merryman of the Catawba Riverkeeper Foundation in Charlotte, N.C., said two of the sites on the “high hazard potential” list discharge into Mountain Island Lake, the primary source of drinking water for 750,000 people in the Charlotte area. Those sites, which belong to Duke Energy, are unlined ponds.
Jason Walls, a Duke Energy spokesman, said the company’s two newest coal ash ponds were lined.
Ten of the sites on the high hazard list belong to Duke Energy. But Mr. Walls said those sites were sound.
For years, the E.P.A. has failed to regulate the disposal of coal ash despite promises to do so. Under the Obama administration, agency officials have pledged to issue regulations by the end of 2009.
But Stephen Smith, the director of the Southern Alliance for Clean Energy, said withholding the list, even temporarily, raised questions about the agency’s intentions. “It’s still unclear to me what the E.P.A.’s ultimate goal here is to do,” Mr. Smith said. “Are they really going to aggressively regulate this material like they need to, or are they taking more of a hands-off approach?”
Environment - "Federal judge won't block BP refinery expansion"
So reports the AP this morning in a brief story. A quote:
Judge Philip Simon in Hammond dismissed the Natural Resources Defense Council's request for an injunction, ruling a appeal pending before Indiana environmental regulators should be decided before the matter goes to federal court.Here is the July 9, 2008 ILB entry on the initial filing of the lawsuit. See also this July 13th entry.
Ind. Law - More on new laws taking effect July 1
"New batch of laws go into effect today" is the headline to this story today in the Indianapolis Star, written by Mary Beth Schneider.
Jane Huh of the Gary Post-Tribune has this lengthy story
Courts - "Is Melendez-Diaz already endangered?"
Monday 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. 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.
Also on Monday, Lyle Denniston of the SCOTUSLaw Blog had an interesting analysis piece headed "Is Melendez-Diaz already endangered?" Just a few quotes:
The ruling, made under the Constitution’s Confrontation Clause, requires the prosecution, if it plans to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for on-demand cross-examination by defense counsel. The decision came on a 5-4 vote.
If it were possible to pick up a fifth vote, could the dissenters from that case then lead the Court to reconsider — or least narrow considerably – the decision in Melendez-Diaz? * * *
This is speculation, of course, but there is little else to suggest why the Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:
“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”
Ind. Courts - Injunction against Governor not needed after all, but interesting
Dave Stafford of the Anderson Herald Bulletin reported yesterday:
Fearing lawmakers might fail to produce a budget, Hoosier Park and other state gambling sites went to court Tuesday and got an order to prevent a state shutdown in such an event.
Marion County Superior Court Judge John F. Hanley issued an injunction that barred Gov. Mitch Daniels and state agencies from closing casinos and race tracks if a budget had not been approved. Hanley sided with casino operators who said the state had no grounds to close the sites amid the budget crisis.
Daniels had threatened Tuesday to close the gaming sites if a budget had not been approved by midnight. He had claimed that state gaming regulators were nonessential state employees who would be furloughed without a budget.
Hanley disagreed and ruled that closing casinos and race tracks would provide no benefit to the state and would irreparably harm the gaming sites.
“All costs associated with the enforcement of the Indiana Gaming Commission’s powers and duties are paid for directly by the casinos, including all the costs associated with gaming agents who are on site in every casino,” Hanley ruled. “No monies are expended by the state of Indiana to pay for gaming agents or the cost of enforcing regulations.”
The Casino Association of Indiana filed its request for an injunction against Daniels, the Gaming Commission and the Indiana Attorney General’s office. It sued on behalf of the state’s gaming sites, including Hoosier Park.
“I think we presented a very good case,” said Jim Brown, Hoosier Park director of gaming.
While approval of a state budget averted a possible shutdown, Tuesday’s ruling could set a precedent if the state finds itself in a similar future financial crisis.
Hanley’s order set a hearing of giving the state until July 8 to show why his injunction should not be made permanent.
For Brown, the ruling ended days of planning for the possibility of a state-imposed shutdown ahead of one of Hoosier Park’s biggest weekends.
“It was interesting,” Brown said. “I’m just extremely happy that we’re going to be open and celebrating an exciting Fourth of July weekend.”
Ind. Decisions - More on: Upcoming oral arguments this week and next
The schedule posted Monday by the ILB has been updated to add a Court of Appeals argument set for July 8th.