The Indiana Law Blog: July 10, 2009 Archives

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Friday, July 10, 2009

Ind. Courts - "Federal Judge Allen Sharp dies "

Laura Kirtley of WLFI 18 has a preliminary report here.

"Judge Allen Sharp, 77, dies at his St. Joseph County home" is the headline to this preliminary story today from the South Bend Tribune.

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending July 10, 2009

I'm told there will be no transfer list for the week ending July 10, 2009.

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Indiana Transfer Lists

Courts - DC Police Use of Vehicle Checkipoints enjoined by DC Circuit

A panel of the DC Circuit today, in the case of Mills v. D.C., granted a preliminary injunction in a case challenging the "neighborhood safety zone" system of police roadblocks recently instituted in the District of Columbia, finding that there was strong likelihood of success on the merits - the constitutional challenge:

SENTELLE, Chief Judge: Four District of Columbia citizens (appellants) filed a motion for a preliminary injunction to enjoin further implementation of a police checkpoint program in the District of Columbia. The district court denied the motion for a preliminary injunction, holding that the appellants failed to show either irreparable harm or a substantial likelihood of success on the merits. Because we hold that the appellants’ showing of irreparable harm is sufficient, and conclude that appellants have shown a substantial likelihood of success, we reverse the district court and remand for further proceedings.* * *
In short, we conclude that appellants have established the requisites for the granting of a preliminary injunction. They have made a particularly strong showing of the substantial likelihood of success on the merits and that they would suffer irreparable injury if the injunction is not granted. The district court did not address the other two elements of the preliminary injunction test. Accordingly, we reverse the district court and remand for further proceedings.

The Court relied heavily on a case out of Indianapolis:

Most plainly controlling of the case before us is the Supreme Court decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the Court considered a checkpoint program conducted by the City of Indianapolis in an effort to interdict unlawful drugs. Under the stipulated facts of the case, officers operating pursuant to directions issued by the chief of police would for a limited period of time stop all vehicles without particularized suspicion, look for signs of impairment, conduct an open view examination of the vehicle from the outside, and have a narcotics-detection dog walk around the outside of each stopped vehicle. After observing that “[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing,” the Court observed that “we have recognized only limited circumstances in which the usual rule does not apply.” Edmond, 531 U.S. at 37. The Court recognized that it had in the past upheld the constitutionality of a checkpoint stop for border protection, see Martinez-Fuerte, supra, and “a sobriety checkpoint aimed at removing drunk drivers from the road,” id. (citing Sitz, 496 U.S. 444). But the Court stressed that “[w]e have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41. The Court then concluded that “[b]ecause the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.” Id. at 48. It is this rule which governs the present case, and as the purpose of the NSZ checkpoint program is not immediately distinguishable from the general interest in crime control, appellants’ argument that the seizures were unconstitutional appears headed for ultimate victory.

[More] The Washington Post now has posted a story on the opinion. Maria Glod reports in a story that begins:

A federal appellate court has ruled today that checkpoints run by D.C. police in neighborhoods beset by crime violate the constitutional rights of residents.
In a strongly worded opinion, the U.S. Court of Appeals for the D.C. Circuit condemned the crime-fighting tactic, which was used by police last summer in the city's Trinidad area. The checkpoints followed a spate of shootings, including a triple homicide.
"It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access," Chief Judge David Bryan Sentelle wrote for a three-judge panel. "It is apparent that appellants' constitutional rights are violated."

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Courts in general

Law - "For now, progress is constrained by the limited capacities of mortgage servicing companies"

You will find that quote in this June 29th ILB entry headed "Paper Avalanche Buries Plan to Stem Foreclosures."

Today Paul Kiel of ProPublica has an article headed "Obama Admin to Mortgage Servicers: Do More (Please)." A quote:

The administration has been increasingly outspoken about its own frustration with servicers , and on Thursday, according to the Washington Post and The Wall Street Journal, Treasury Secretary Timothy Geithner and HUD Secretary Shaun Donovan took that frustration one step further with a letter to the servicers participating in the program.It includes a link to a letter to the servicers participating in the program.

Particularly if you are doing foreclosure work, check the article for links to the letter and other materials.

[More] A second Pro Publica entry reports: "Among those not participating are three of the 10 largest servicers in the country and the second-biggest servicer of subprime loans."

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to General Law Related

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

For publication opinions today (3):

In Chijoike Bomani Ben-Yisrayl f/k/a Greagree Davis v. State of Indiana , a 20-page opinion, Judge Bradford writes:

Following dismissal of his death penalty, Appellant-Defendant Chijoike Bomani Ben-Yisrayl, f/k/a Greagree Davis, appeals his aggregate sentence of 150 years in the Department of Correction. Upon appeal, Ben-Yisrayl claims that the trial court erred by adopting and imposing the alternative term-of-years sentence provided for in the original sentencing order rather than conducting a new sentencing hearing. In addition, Ben-Yisrayl challenges the appropriateness of his sentence and the trial judge‟s recusal from his case. We affirm in part, reverse in part, and remand for resentencing. * * *

We have concluded that Ben-Yisrayl is entitled to a new sentencing hearing for his murder conviction which comports with the dictates of Blakely, but that he has waived his challenge to Judge Hawkins‟s recusal from his case. Accordingly, we affirm in part, reverse in part, and remand to Court Three for a new sentencing hearing on the murder conviction only.

In Clark C. Campbell v. Board of School Commissioners of the City of Indianapolis, et al. , a 21-page, 2-1 opinion, Judge Mathias writes:

The Board of School Commissioners of the City of Indianapolis (“the IPS Board”) filed in Marion Superior Court a complaint for declaratory judgment against the Indiana State Board of Education, the Indiana Election Commission, Clarke Campbell, Michael Cohen, Elizabeth Gore, and Leroy Robinson. In the complaint, the IPS Board sought an interpretation of Indiana Code section 20-25-3-4 and its effect on the outcome of the May 2008 school board election. The trial court determined that the individuals who received the highest number of votes for the at-large seats should be seated by the IPS Board. Campbell appeals and argues that it violates Indiana law for three members of the IPS Board to reside in the same Board district. Concluding that the individuals who received the most votes for the at-large seats were properly seated by the IPS Board, we affirm. * * *

Under these statutes, there is no dispute that Gore and Cohen were qualified to run for the “incumbent” and “open” at-large seats respectively at the time each formally and legally established her or his candidacy. The issue presented in this appeal arose because Gore and Cohen received the most votes for the two at-large seats, but they also both reside in the same district as the IPS Board member who represents District . Thus, we are faced with a situation in which it is impossible to adhere to both subsections (b) and (e) of section 20-25-3-4. * * *

In this case, we are presented with a situation that the statute simply does not address. The General Assembly addressed normal vacancies on the IPS Board and how those vacancies would be filled in section 20-25-3-4(h), but provided no guidance for the rare, but potentially recurring circumstance in this case where a mid-term resignation by an at-large Board member caused both at-large seats to be vacant in the same election cycle. * * *

Our supreme court recently reaffirmed Indiana’s “longstanding respect for the right of the people to free and equal elections”, and our supreme court’s reluctance “to remove from office a person duly elected by the voters.” Burke v. Bennett, 907 N.E.2d 529, 532 (Ind. 2009). * * *

Furthermore, we cannot agree with Campbell’s assertion that geographic diversity should prevail over the will of the electorate. Each of the five school board districts is represented by a member on the IPS Board. Because two at-large members are also elected, the General Assembly has authorized an IPS Board that lacks uniform geographic diversity. Accordingly, we conclude that geographic diversity was not our legislature’s overriding concern. * * *

For all of these reasons, we conclude that the trial court reached the correct result when it declared that Gore and Cohen should be seated by the IPS Board because they received the “most votes” for their respective at-large seats. In view of the overriding goal “to uphold the will of the electorate” it bears repeating that Gore received 22,942 votes to Campbell’s 15,512 votes, and Cohen received 28,348 votes to Robinson’s 24,442 votes for the respective at-large seats. See Burke, 907 N.E.2d at 532 (noting our supreme court’s reluctance “to remove from office a person duly elected by the voters.”).

Finally, we urge the General Assembly to consider the circumstances presented in this appeal and to formulate a statutory remedy to similar circumstances should they recur in a future election. Affirmed.

BARNES, J., concurs.
BAILEY, J., dissents with opinion. [which begins, on p. 15 of 21] I dissent from my colleagues’ opinion that Michael Cohen is qualified to hold an at-large position on the IPS Board, and I disagree with their determination that Indiana Code Section 20-25-3-4 provides no guidance for the circumstances that occurred in this case.

In The Money Store Investment Corp, et al. v. Neal A. Summers, et al. , a 19-page opinion, Sr. Judge Sharpnack writes:

This appeal involves issues of liens and priorities between Paula Phillips (“Phillips”), a judgment creditor and assignee of a first mortgage holder (“National City”), and The Money Store Investment Corporation, d/b/a First Union Small Business Capital (“Money Store”), the holder of a second mortgage, for the cost of repairs, insurance, and taxes with respect to the mortgaged property owned by Neal Summers, on a part of which Phillips has been operating a restaurant. This is the second appeal of the case and is brought by Money Store from a judgment of the trial court adding to the lien of Phillips as assignee of National City’s mortgages amounts spent to repair the restaurant, insure it, and pay taxes on the mortgaged property during the pendency of the first appeal. * * *

To sum up, we reverse the personal judgment against Money Store; we order an accounting for the profits of the restaurant to be applied to the amount due on Phillips’ first lien; we otherwise affirm the judgment of the trial court; and we remand to the trial court for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (3):

James Bishop v. State of Indiana (NFP)

Ashlee L. Medlin v. State of Indiana (NFP)

Brent Francis v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on "Automakers’ Swift Cases in Bankruptcy Shock Experts"

Updating this ILB entry from July 7th, Zach Lowe of The American Lawyer had a story yesterday headed "GM and Chrysler: The End of Bankruptcy as We Know It?" It began:

Almost every bankruptcy expert The Am Law Daily talks to agrees that the super-fast General Motors and Chrysler bankruptcies diverted from traditional bankruptcy law because of the government's huge role in each case and the danger that liquidation might have posed to the broader economy.

What they don't agree on is whether the cases set a meaningful precedent for future judges. "What happened in GM and Chrysler is so outrageous and so illegal that until March of this year, nobody even conceptualized it," says Lynn LoPucki, a bankruptcy expert at UCLA Law School. "Wouldn't almost every company like to get out [of bankruptcy] in 30 or 60 days? Is there any reason they cannot all propose to do what GM and Chrysler have now done?"

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Courts in general

Ind. Courts - "Teen to be tried in bomb threats"

Some quotes from this story today by Anne Blythe of the Raleigh NC News & Observer:

Federal prosecutors say a teenager from Oxford is a celebrity in an online prankster world in which conspirators, for nominal fees, make bomb threats to high schools, universities, federal offices and other places and then broadcast the results live to a select audience.

In indictments issued this week by a federal grand jury in Indiana, prosecutors accuse Ashton Lundeby, 16, of making or helping make bomb threats in at least a dozen states from his home computer since last year. In some cases, prosecutors say, Lundeby and unnamed co-conspirators would collect fees to lodge bomb threats at high schools and middle schools with the goal of closing school for the day.

Federal prosecutors call it "Swatting," the act of making a false emergency report that frequently prompts responses from special weapons and tactics, or SWAT, teams. They say Lundeby and the co-conspirators used pseudonyms and elaborate computer gaming techniques to disguise their voices and identities, then transmit threats and watch live through video surveillance and webcams as law enforcement teams responded.

Lundeby, a homeschooled boy arrested March 5 in his Oxford home and taken to Indiana, is being tried as an adult in federal court, though under federal law he is considered a juvenile. He is scheduled to go before a federal magistrate in Indiana today. * * *

According to the indictments, Lundeby is accused of making a bomb threat to Purdue University on Feb. 15 and to Indiana University-Purdue University at Fort Wayne on Jan. 31. He also is accused of conspiring to make bomb threats and conveying false information over the Internet and telephone lines from mid-2008 to March 6.

Here is a July 8th story from Wired.

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Indiana Courts

Ind. Courts - "Judge Allen rules in favor of Josh Merritt's mother in burial dispute"

From Nick Schneider's report Thursday in the Greene County Daily World:

Greene Circuit Judge Erik C. Allen ruled Thursday afternoon that an 11-year-old boy, who died from injuries suffered in a fire accident April 18 in Scotland, can be buried as his mother wishes.

Allen heard testimony for about an hour Tuesday afternoon in a complaint for declaratory judgment filed by Josh Merritt's mother, Lisa M. (Crays) Burris.

The complaint followed an objection to the burial plans that was filed by the boy's biological father, Peter J. Merritt, of Clayton, N.Y.

Josh Merritt died June 24 and his funeral and burial was originally planned for July 1 in the Scotland Cemetery. A burial plot has been selected right next to Josh's best friend, Nicholas Decker, who also died from injuries suffered in the same April 18 fire. Nicholas passed away on May 29.

Peter Merritt wanted to have his son's body cremated and then his ashes be divided in half -- with a potion going to his mother and the other portion to him so he could take them back to New York for distribution in a river near his home.

During the hearing on Tuesday afternoon, Judge Allen stressed that he was going to have to do some soul-searching in looking at this obviously emotional case.

Judge Allen noted in his ruling that there was testimony during a hearing on Tuesday that was "speculation by others to what Josh may have wanted in terms of burial preference."

"There is no evidence of Josh ever having made a statement regarding what his preference would be," Allen wrote.

In his four-page written judgment order, Judge Allen pointed out "There is no definitive right or wrong answer whether to bury or cremate human remains, the merit of each method is subject to any given person's feelings and/or convictions. Further there is no presumption or favor in law for one method over another. The dispositive question presented in this case is not whether to order burial or cremation, but the appropriate dispositive question is which parent has authority to make the final decision."

In his findings of fact, the judge stated that the mother and father lived together with Josh until sometime in 2003 or early 2004. The father maintained "somewhat regular" contact with Josh until he moved to New York in 2004. He moved back to Greene County, but relocated in 2006 to New York, where he still resides.

The father claimed he had lost regular contact with the boy's mother, but the court said that claim is disputed because Lisa Burris had a number of relatives -- including her parents, siblings -- living in Greene County who have been continuously accessible to the father.

The judge also pointed out that Lisa Burris was granted sole legal custody of the young boy in 2004. The father was awarded "reasonable and seasonable parenting time."

Indiana law outlines that a decedent's surviving parents have the authority to designate the manner of final disposition and interment of a decedent's remains and either parent has such authority unless a licensed funeral director or licensed funeral home or cemetery association receives a written objection from the other parent.

Allen referred to a 2004 Indiana Court of Appeals case in the Matter of the Supervised Estate of K.A. Deceased that acknowledged, "Indiana had no case law that addresses the issue of whether a custodial parent has the right to make decisions regarding the disposition of a minor child's remains."

Judge Allen also wrote: "In determining the outcome of a case, the Court must look beyond the emotional and sympathetic facts of a particular case and make a decision based upon sound reasoning and good policy. When presented with the question of which parent has the final authority to decide how to dispose of a minor child's remains, until such time that the legislature enacts statutes or the higher Court establishes case law as find precedent, the trial Court's must evaluate the circumstances of each case on a case by case basis to determine an equitable and just outcome."

Judge Allen concluded his decision by writing, "Based upon the findings set forth herein the Court concludes that the balance of the equities is in favor of the mother and the court hereby orders the remains of Josh to be disposed of as directed by his mother, Lisa M. Burris."

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Indiana needs more female legislators

That is the topic of this editorial today in the Fort Wayne Journal Gazette. Some quotes:

Indiana’s perennial lackluster showing among the 50 states extends to the percentage of women serving in the General Assembly, where a new survey places it 31st. That’s a considerable improvement over last year’s rank of 36. But a legislative body where only 22 percent of the members are female still is nothing to crow about. * * *

Only 5 percent of the northeast Indiana delegation is female. That’s one out of 19 lawmakers, an embarrassingly low figure. Before next spring’s primaries, both political parties should study their ranks and encourage strong female candidates to step up and run.

Rep. Phyllis Pond, R-New Haven, holds the distinction as the region’s only female lawmaker, one she’s held since Rep. Gloria Goeglein died in 2001. Numerous vacancies have arisen since that time, and four general elections have passed with no female candidates. Pond herself failed in a caucus bid for a Senate seat in 2004. * * *

Pond said she believes women bring a different approach to the Statehouse – less interested in climbing the leadership ladder and more interested in issues.

Which issues they champion is also distinct. The General Assembly has an overabundance of economic development champions and too few watchdogs for health and human services. Not surprisingly, the legislative push for oversight of the ill-conceived welfare eligibility outsourcing deal is almost entirely female-driven, a bipartisan effort by Sen. Vaneta Becker and Reps. Suzanne Crouch, Peggy Welch and Gail Riecken.

Goeglein was a passionate voice for Hoosiers with disabilities, including mental illness, while Pond has tirelessly sought ethics reforms.

“A lot of men are using (their legislative seats) as a stepping stone,” she said. “They go into leadership or they go to work as a lobbyist and make tons of money. I think (women) make decisions based more on family reasons than on political reasons.”

Posted by Marcia Oddi on Friday, July 10, 2009
Posted to Indiana Government

Ind. Decisions - "Sex offender ID law misapplied, higher court says"

David Michael Harris v. State, a 9-page, NFP opinion issued yesterday by the COA, is the subject of a story today by Sophia Voravang in the Lafayette Journal Courier. Voravong also wrote a story Wednesday on the Supreme Court's July 1st Pollard decision, quoted here in the ILB. From today's story:

Enhancements to Indiana's Sex and Violent Offender Registry that took effect on July 1, 2006, are continuing to cause snarls for law enforcement.

The Indiana Court of Appeals on Thursday reversed two convictions against a Lafayette man who assumed a dead man's identity -- allegedly to avoid being listed on the state's sex offender registry.

David M. Harris, 55, was found guilty of felony counts of forgery, application fraud, identity deception and failure to register as a sex offender after a bench trial in July 2008 in Tippecanoe Circuit Court. He also was found guilty of misdemeanor failure to possess a valid Indiana driver's license or identification card, a requirement that took effect three years ago.

Indiana's higher court, however, dismissed the application fraud conviction on grounds that the prosecutor's office could not prove that Harris applied in Tippecanoe County for a driver's license under the name Richard Blair.

Thursday's unanimous ruling also found that Harris does not have to carry government-issued identification because his two convictions for child molesting took place before July 1, 2006.

Sheriff's Detective Greg Haltom, who maintains Tippecanoe County's sex offender registry, said the justices' finding is contrary to how he'd been enforcing the ID card statute.

"The way I interpreted the law was that, if you're a registered sex offender, you need an Indiana identification card," Haltom said. "There is a lot of litigation out there right now regarding all those changes."

Harris is listed on the state's registry as a sexual predator, meaning he is required to provide his address and other contact information to law enforcement for life. * * *

Sheriff Tracy Brown said it's not uncommon to hear of different interpretations of the state's sex offender statutes. During an Indiana Sheriff's Association meeting Thursday, he said one person brought up that it could greatly vary in all 92 counties.

"The General Assembly had the right intent with the legislation, which is to protect children," Brown said. "But clearly there is enough confusion that law enforcement and legislators need to work at a committee level to sit down, review and tighten these laws."