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Monday, August 31, 2009

Ind. Decisions - Transfer list for week ending August 28, 2009

Here is the Clerk's transfer list for the week ending August 28, 2009. It is one page long.

No transfers were granted last week.

A notable case denied transfer last week was D.S. v. State of Indiana, about which the ILB wrote August 26th.

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Search all the Transfer Lists: The 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 5 1/2 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, August 31, 2009
Posted to Indiana Transfer Lists

Courts - "A.C.L.U. Lawyers Mine Documents for Truth "

Scott Shane had this lengthy story August 29th in the NY Times. It began:

WASHINGTON — In the spring of 2003, long before Abu Ghraib or secret prisons became part of the American vocabulary, a pair of recently hired lawyers at the American Civil Liberties Union noticed a handful of news reports about allegations of abuse of prisoners in American custody.

The lawyers, Jameel Jaffer and Amrit Singh, wondered: Was there a broader pattern of abuse, and could a Freedom of Information Act request uncover it? Some of their colleagues, more experienced with the frustrations of such document demands, were skeptical. One made a tongue-in-cheek offer of $1 for every page they turned up.

Six years later, the detention document request and subsequent lawsuit are among the most successful in the history of public disclosure, with 130,000 pages of previously secret documents released to date and the prospect of more.

Posted by Marcia Oddi on Monday, August 31, 2009
Posted to Courts in general

Courts - "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

That is the lede to this column today by Adam Liptak of the NY Times. Some quotes from this important article:

“The days of powerful newspapers with ample legal budgets appear to be numbered,” wrote a public defender in Georgia, Gerard Kleinrock, in a recent Supreme Court brief. “Will underfunded bloggers be able to carry the financial burdens of opening our courtrooms?”

The brief concerned the case of Eric Presley, a Georgia man convicted of cocaine trafficking. The judge closed the courtroom during jury selection in Mr. Presley’s case, on the theory that it was too small to accommodate both potential jurors and the public. Citing the public’s lack of access to the jury selection, Mr. Presley appealed, and the Supreme Court will soon consider whether to hear his case.* * *

Companies that still have ample resources do not always share a journalistic commitment to open government.

Consider the aftermath of a recent settlement in a lawsuit against Amtrak. After the railroad lost a $24 million jury verdict and while its appeal was pending, it agreed to pay an undisclosed sum to the plaintiffs, two trespassing teenagers who suffered severe electric burns after they climbed onto a parked train.

As part of the settlement, the parties asked Judge Lawrence F. Stengel of Federal District Court in Philadelphia not only to vacate eight of his decisions in the case but also to “direct LexisNexis and Westlaw to remove the decisions” from “their respective legal research services/databases.”

The judge agreed, and the database companies complied.

“In the infrequent event that we are ordered by the court to remove a decision from Westlaw,” explained John Shaughnessy, a spokesman for the service, which is owned by ThomsonReuters, “we will comply with the order, deleting the text of the decision but keeping the title of the case and its docket number. We also publish the court’s order to remove so there’s a clear record of the action.”

A LexisNexis spokeswoman said more or less the same thing.

Kathleen A. Bergin, who teaches at South Texas College of Law, said she found the companies’ actions perplexing. “These are public acts issued by public officials,” she said of the decisions, “and the public has an interest in them.”

Posted by Marcia Oddi on Monday, August 31, 2009
Posted to Courts in general

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

For publication opinions today (2):

In City of New Haven Board of Zoning Appeals v. Flying J, Inc. , Judge Mathias writes:

The heart of the issue currently before us is whether the amended zoning ordinance is applicable to Flying J's planned travel plaza. If so, the planned travel plaza is not in compliance with the amended ordinance, and the BZA cannot be said to have acted improperly in rejecting Flying J's development plan; if not, the BZA did act improperly, and the trial court correctly reversed the BZA's decision.

As the trial court correctly observed, changes in zoning ordinances are subject to any vested property right. Metro. Dev. Comm'n of Marion County v. Pinnacle Media, LLC, 836 N.E.2d 422, 424 (Ind. 2006) (“Pinnacle I”). Generally, a “nonconforming use” may not be terminated by a new zoning enactment. * * *

Upon appeal, our supreme court affirmed the long-held principle that zoning ordinances are subject to vested rights. Pinnacle I, 836 N.E.2d at 424. But the court rejected a line of cases which held that the mere filing of a building permit was sufficient to establish a vested right. Pinnacle I, 836 N.E.2d at 428 (overruling Knutson v. State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959)). Instead, the court approved of a line of cases which held that land acquisition, demolition, and site preparation were not enough to establish a vested right. [In Pinnacle II the court further explained:] We acknowledge, as perhaps our original opinion should have, that vested rights may well accrue prior to the filing of certain applications. * * *

Here, the BZA argues that, because Flying J had not yet begun construction on its travel plaza, Flying J had no vested right to develop the travel plaza pursuant to the original zoning ordinance. The BZA argues that the amended zoning ordinance is therefore applicable and that Flying J's development plan for the travel plaza clearly exceeds the size limitations of the amended zoning ordinance. Flying J argues that it did have a vested right prior to the amendment of the zoning ordinance, that its planned travel plaza is a nonconforming use, and that the amended zoning ordinance does not apply.

If Pinnacle I were the only case we considered, we might well agree with the BZA that Flying J had no vested right because it had not yet begun construction on the travel plaza. * * *

We read the Pinnacle cases to mean that, while construction definitely does establish a vested right, mere preliminary work, including filing of a building permit, does not. In situations falling between these two extremes, courts must engage in a fact sensitive analysis to determine whether vested rights have accrued prior to application for a building permit or construction. * * *

Since the determination of when such rights vest is a fact-sensitive determination, we necessarily give deference to the trial court's findings. Under the facts and circumstances before us, we cannot say that the trial court erred in concluding that the amendments to the zoning ordinances were subject to Flying J's vested right in the property and that the amended zoning ordinance was not applicable to Flying J's planned travel plaza. Therefore, the trial court also correctly determined that the BZA erred in rejecting Flying J's development plan based on the inapplicable amended zoning ordinance.

In Virginia Meister v. State of Indiana and City of Union City, Indiana, a 14-page, 2-1 opinion, Judge Friedlander writes:
This case comes before us on remand from the United States Supreme Court. In Meister v. State, 864 N.E.2d 1137 (Ind. Ct. App. 2007) this court affirmed the forfeiture of Virginia Meister‘s vehicle, which was seized after her son, John Wymer, was arrested while driving the vehicle for the offense of driving while suspended. A search subsequent to that arrest revealed that Wymer had methamphetamine in the vehicle. After the Indiana Supreme Court denied Meister‘s petition for transfer, she filed a petition for writ of certiorari with the United States Supreme Court. The Court granted that writ on May 4, 2009 and on June 5 remanded the cause to this court with the following instructions: "It is ordered and adjudged on May 4, 2009, by this Court that the judgment of the above court in this cause is vacated with costs, and the cause is remanded to the Court of Appeals of Indiana, First District, for further consideration in light of Arizona v. Gant, 556 U.S. ___[, 129 S.Ct. 1710] (2009)." Pursuant to this directive, we reconsider Meister‘s appeal. * * *

[ILB - For background, see this entry from May 4th.]

[B]ased on the facts known to Officer Wymer at the time of the search, he had probable cause to believe a search of the vehicle Wymer was driving would uncover contraband or evidence of that crime.

The second element that must be present to justify a warrantless search of a vehicle is that the vehicle is readily mobile. * * * In view of the fact that Officer Bradbury had probable cause to search Meister‘s readily mobile vehicle, the warrantless search of the vehicle was justified under the automobile exception. Therefore, there was no violation of the Fourth Amendment.

Finally on this issue, we note that our analysis in the original opinion of Meister‘s challenge under article 1, section 11 of the Indiana Constitution is unaffected by Gant. Therefore, for the reasons stated in our original opinion, our conclusion that the search of Meister‘s vehicle did not violate this provision of the Indiana Constitution remains unchanged.

The second issue presented by Meister challenges the sufficiency of the evidence supporting the trial court‘s forfeiture order. Specifically, she alleges the State failed to prove that she knew or had reason to know that the vehicle was being used in the commission of the offense, as required by I.C. § 34-24-1-4(a). * * * We discern no need to do more here than indicate that our views and analysis on this issue, as set out in our original opinion, remain unchanged. We note in this regard that Gant did not address the subjects of forfeiture or the sufficiency of evidence, and therefore nothing in Gant requires reconsideration of this issue.
Judgment affirmed.

KIRSCH, J., concurring.
RILEY, J., dissenting with separate opinion. [that concludes] Based on the facts before us, it is clear that Wymer was handcuffed and secured prior to the search of his car. He was not within reaching distance of the car‘s interior. An evidentiary basis for the search was also lacking. Wymer was arrested for driving with a suspended license—an offense for which the officers could not expect to find evidence in the vehicle. Because the officers could not reasonably have believed either that Wymer could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case, pursuant to Gant‘s directives, was unreasonable.

NFP civil opinions today (6):

Clark L. Bryant v. Harrison County Planning Commission (NFP) - "In his complaint, Bryant seeks declaratory, mandamus, and injunctive relief to force HCPC to enforce the Zoning Ordinance. Bryant alleges that HCPC has failed to enforce the Zoning Ordinance by allowing the construction of the over-sized garages, by improperly issuing improvement location permits and certificates of occupancy, by not requiring plot plans, and by not performing final inspections. Bryant, though, has not asserted that HCPC’s alleged violations of the Zoning Ordinance have caused him to suffer or have placed him in immediate danger of suffering a direct injury. While he alleges that two of the over-sized garages are located in the same subdivision as his home, he does not allege that these garages have or will cause him direct injury. Bryant states that he is bringing this action to protect his investment in his home, but he does not allege that HCPC’s alleged failure to enforce the Zoning Ordinance has caused or will cause a depreciation in the value of his property. Absent some showing that Bryant has suffered or will immediately suffer a direct injury, Bryant does not have general standing to pursue his claim against HCPC. * * *

"Although Bryant does not have general standing, he contends that there are several other bases by which standing may be established. * * *

"As stated above, Bryant has failed to show that he has a stake in the outcome of this case, and we conclude that Bryant does not have standing to pursue an action for mandate."

Bloomington Ford, Inc. v. Robert McArdle (NFP) - "Appellant-Defendant, Bloomington Ford, Inc. (Bloomington Ford), appeals the Worker‟s Compensation Board‟s decision affirming its administrative law judge‟s decision awarding Appellee-Plaintiff, Robert McArdle (McArdle), $6,058 for the amputation of the tip of his middle finger, which occurred while he was employed by Bloomington Ford. We affirm and remand.

"Bloomington Ford raises one issue for review, which we restate as: Whether McArdle‟s injury arose out of and in the course of his employment with Bloomington Ford."

In C.M.M. v. D.D.F. (NFP), an 8-page opinion, Judge Bradford writes:

Appellant-Respondent C.M.M. (“Father”) appeals the trial court’s order that he pay a portion of his children’s college expenses. We affirm.
Again, as in this Aug. 14th entry and this Aug. 21st entry, the ILB points out that there is apparently a new, unannounced court-wide policy that essentially vests discretion in the writing judge as to whether or not to publish the names of the parties in certain cases. The parameters of the discretion, what criteria apply, etc., do not appear to be available to the public, but the ILB counts at least a half-dozen opinions recently where the writing judge has obscured the names of the parties.

Term. of Parent-Child Rel. of L.M.; B.M., J.D., and S.W. v. IDCS (NFP)

Term. of Parent-Child Rel. of A.D. and I.M.; J.D. and R.M. v. IDCS (NFP)

Term. of Parent-Child Rel. of M.M.; Q.M. v. IDCS (NFP)

NFP criminal opinions today (2):

John R. Crawford v. State of Indiana (NFP)

Lawrence Auler v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 31, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court's trail confusing on sex offender rights"

The Richmond Palladium-Item ran this editorial on August 30th:

The Indiana Supreme Court ruled this summer that an offender who owned his home before a new residential law restricting proximity to a school, public park or youth center could not be forced to move by the law.

This newspaper faulted the ruling, noting in this space that the defendant was being charged with behavior after the implementation of the statute, not before.

“In other words,” we said, “he is not charged with owning a home, but continuing to reside in a home in violation of defined space limitations after the law was passed.”

Still there was consistency in the court’s position. The state’s high court only months before had struck down the conviction of a man for failing to register as a sex offender, noting in similar fashion that he had completed his sentence for child molestation before the state’s Sex Offender Registration Act was passed.

So it is that we find more confusion than consistency with the court’s most recent ruling this month letting stand without comment a Plainfield ordinance barring sex offenders from the town’s public parks.

This goes well beyond the narrower residency statute. It bans those who have served criminal sentences and who pay taxes in support of public parks from even setting foot in those parks. And even where their crimes were not committed in those parks.

The defendant in the Plainfield case had completed his sentence and probation when he was told by police while visiting the town’s recreation center with his young son that he could not return.

People who love the law for its fair play should have some issues with this kind of “Scarlet Letter” justice that continues to punish after the proverbial “debt to society” has been paid.

Now, supporters of these arguably overreaching restrictions will argue that it is the high rate of recidivism by sex offenders that targets them for ongoing restrictions to protect the larger society, especially innocent children.

The data on repeat offenses is more confusing than the Indiana Supreme Court’s recent rulings. One can cherry pick what they want to support a particular position. For example, a Justice Department study of 272,111 felons released from prison in 15 states during 1994 found sex offenders were less likely than non-sex offenders to be re-arrested for any offense, but that sex offenders were about four times more likely to be arrested for another sex crime after discharge from prison.

But if the science convincingly supports the need to restrict the right to public property, or residency, or other basic rights for convicted sex offenders, then let that need be reflected in amended criminal codes that extend probationary periods upon conviction. That way, judges can rightfully impose those restrictions on a case-by-case basis within the broad parameters of probation. Those who violate specific terms of probation can be abruptly returned to prison, where they belong.
One thing that should be remembered here is that “sex offender” is itself a rather broad term, incorporating everything from the chronic perverts who prey on young children to, in some states, the 19-year-old youth caught and prosecuted for having consensual sex with his 15-year-old girlfriend.

Simply denying fundamental rights to a class of citizens — even a class loosely defined by past criminal conduct — under the guise of protecting society probably renders us all a little less free and secure.

Posted by Marcia Oddi on Monday, August 31, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Mediation not about feeling good; it’s about making good decisions"

Nicole Brooks had this story yesterday ($$) in the Bloomington Herald-Times that begins:

Mediation is not “feel good” work, said David Nosko, a victim-offender reconciliation case manager with Monroe County’s Community Justice & Mediation Center.

There may be no punishment greater for an offender than to sit across a small table from the person he or she harmed, he said.

The Mediation Center is offering in September a four-day, 32-hour training course for those interested in becoming mediators with the center or for people who simply want to gain mediation skills.

The center is a nonprofit organization largely staffed by volunteers. It is not overseen by the courts or any governmental group, although the county court’s probation department assigns many cases. Educators in the schools refer some cases to the center.

Headquartered in a one-room office on Bloomington’s courthouse square at 115 N. College Ave., the center provides conflict resolution, training programs that focus on small claims cases and shoplifting, and victim-offender reconciliation, among other programs.

Jon Dilts, a senior mediator and professor at Indiana University’s journalism school, said some people go through the 32-hour training so they can use mediation skills in their place of business or personal lives. A typical training session, which have been held in Bloomington the past eight or nine years, has as attendees business leaders who work in retail, property management, law and education students and people interested in civic engagement.

“We’re not counselors; we’re not lawyers,” Nosko said. “We don’t offer advice. It’s a discussion.”

Mediators facilitate listening and civilized conversations during which one person speaks at a time.

Having a third, neutral party listen to an argument between two warring neighbors or a landlord and tenant causes the incensed to behave with a bit more maturity and civility, said Ed Greenebaum, a center case manager, board member and trainer.

“That certainly does affect people’s behavior,” he said.

Posted by Marcia Oddi on Monday, August 31, 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 8/31/09):

Thursday, September 3rd

Next week's oral arguments before the Supreme Court (week of 9/7/09):

Next Friday, September 11th

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 8/31/09):

Tuesday, September 1st

Next week's oral arguments before the Court of Appeals (week of 9/7/09):

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, August 31, 2009
Posted to Upcoming Oral Arguments

Sunday, August 30, 2009

Ind. Gov't. - "Local disasters prompt Clark County to seek ideas to back up documents"

From the New Albany News & Tribune:

The Clark County Public Records Commission held a meeting Thursday to hear a proposal by Kitestring to move some of the county’s official documents into an electronic format.

The presentation was made on the heels of a fire at the Madison County courthouse which destroyed the building’s historic dome and some official documents. In addition, recent flooding threatened to ruin important official documents in Clark County and prompted Floyd County to look into backing up its documents through e-files.

The files would be prioritized to determine which would be the first to be scanned in and would likely include marriage licenses, deeds and governmental documents like meeting minutes and ordinances.

September 1 is a current target date for going online with marriage certificates, commission officials said.

Previously filed marriage records would have to be scanned in online through the proposed process.

All of the files would be viewable online, eventually, but that does not mean that the county would trash the paper copy.

Some concern was raise about the viability of viewing the documents in the future if technology were to change and what kind of cost the county would incur.

President of Kitestring, Tim Miller, reassured the commission that the technology to view the documents would continue to evolve and gave an example of being able to convert digital images onto microfilm — an older technology.

The estimated cost to scan in old documents would be around $.03 per page, Miller said.

The project will have to go to the commissioners and compete through bids before it is approved, according to Dan Moore, commission chairman.

Posted by Marcia Oddi on Sunday, August 30, 2009
Posted to Indiana Government

Courts - SCOTUS will hear case next month, preceding the "First Monday in October"

"Supreme Court to Revisit ‘Hillary’ Documentary" is the headline to this Adam Liptak story today in the NY Times. A quote from the long story:

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

A lower court agreed with the F.E.C.’s position, saying that the sole purpose of the documentary was “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

At the first Supreme Court argument in March, a government lawyer, answering a hypothetical question, said the government could also make it a crime to distribute books advocating the election or defeat of political candidates so long as they were paid for by corporations and not their political action committees.

That position seemed to astound several of the more conservative justices, and there were gasps in the courtroom. “That’s pretty incredible,” said Justice Samuel A. Alito Jr.

The discussion of book banning may have helped prompt the request for re-argument. In addition, some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration.

Posted by Marcia Oddi on Sunday, August 30, 2009
Posted to Courts in general

Ind. Gov't. - "The Indianapolis Public School Board adopted the district's $448 million budget this week, but don't ask board members for too much detail -- they never saw the actual budget before voting on it"

It gets worse. From today's "Behind Closed Doors" column in the Indanapolis Star:

The Indianapolis Public School Board adopted the district's $448 million budget this week, but don't ask board members for too much detail -- they never saw the actual budget before voting on it.

Member Kelly E. Bentley voted against the budget, saying the administration had not answered her questions about how money was allocated in it.

Another board member and the superintendent told her the summaries provided by the administration should have been more than enough. Bentley countered that the board's job was fiscal oversight.

"I think as a school board we have that obligation," Bentley said in the meeting, "and I'm not sure how resources get allocated to schools."

The district's practice has been to give board members the fund-by-fund budget numbers along with a breakdown of any changes or decreases by area. But the actual line- item amounts are in a separate budget that Bentley said board members did not receive.

Board member Marianna R. Zaphiriou told Bentley that she felt her request -- and the suggestion that other board members weren't asking enough questions -- was wrongheaded.

"Part of that implication is that some of us should feel uncomfortable, and we don't," she said. "I have no reason to want that level of information. I don't feel the need to request that information."

Superintendent Eugene White told Bentley she was welcome to make an appointment and go line-by-line through the budget with district finance officials. But he said he wouldn't waste the board's time by giving it the entire budget to review.

"We have not, and we don't intend to, give you the specificity of each of those items," White said. "It would be too prohibitive for you to go through that. . . . We're not going to bring that to you. We're asking you to approve the budget, and to go any deeper than that would take a lot of your time and be ridiculous."

The budget passed 6-1.

My Thoughts: Absolutely incredible!

Posted by Marcia Oddi on Sunday, August 30, 2009
Posted to Indiana Government

Environment - Wind turbines "can appear on Doppler radar like a violent storm or even a tornado"

From the AP, a story that begins:

SIOUX FALLS, S.D. -- Wind farms have been blamed for disrupting the lives of birds, bats and, most recently, the land-bound sage grouse.

Now the weatherman?

The massive spinning blades affixed to towers 200 feet high can appear on Doppler radar like a violent storm or even a tornado.

The phenomenon has affected several National Weather Service radar sites in different parts the country, even leading to a false tornado alert near Dodge City, Kan., in the heart of Tornado Alley. In Des Moines, Iowa, the weather service received a frantic warning from an emergency worker who had access to Doppler radar images.

The alert was quickly called off in Kansas and meteorologists calmed the emergency worker down, but with enough wind turbines going up last year to power more than 6 million homes and a major push toward alternative energy, more false alerts seem inevitable.

New installations are concentrated, understandably in windy states like Texas, Oklahoma, Kansas, Colorado and Iowa, all part of Tornado Alley.

Posted by Marcia Oddi on Sunday, August 30, 2009
Posted to Environment

Ind. Law - Continuing on with: "Apparently there are all sorts of surprises in the special session budget"; my thoughts

This week's issue of the highly-respected, subscription-only newsletter, Indiana Legislative Insight, includes this story:

The Indiana Law Blog points out some complications and unexpected and sometimes unintended consequences that language inserted in the special session budget bill have caused with other laws.

We're even hearing that some veteran lobbyists are feeling blindsided by how some seemingly innocuous provisions have adversely impacted legislation that they worked successfully to pass as recently as late April.

The litany includes such matters as the language limiting use of golf carts to cities and towns which have passed authorizing ordinances – with no equivalent authority for counties. This has reportedly caused havoc with some long-time practices, and may require corrective amendments, according to the Indiana Law Blog.

Other unexpected provisions causing controversy include changes in Department of Child Services [IDCS] practices that afford the director sole authority to approve out-of-state placement of youths with special treatment needs.

And lest you be too dismissive of the golf cart issue, you should understand that it is important in many communities. The Decatur Daily Democrat reports on a town hall meeting hosted in Monroe by Sen. Travis Holdman (R) and Rep. Matt Lehman (R), where the first-term lawmakers discovered that „the majority of the 50 area residents in attendance were there to talk about golf carts and their regulation ....

"What became the argument was, did we exclude counties (from the list of governmental bodies which legally can regulate golf cart use)" said Lehman. "The law says local governments can control golf carts, but it only specifically mentions towns and cities. The General Assembly's intent was never to take away the authority of the counties .... The problem is that, outside of this rural community, you have a lot of people who hate golf carts. And several of them hold seats in the state legislature," said the Berne lawmaker.

Holdman cited one such example, noting that "committee chairman in my own party" refused to allow debate on the golf cart legislation in its early stages. "Sometimes you've got to work around those kinds of people," Holdman said.

Lehman said conversations are currently under way between various legal experts across the state in an attempt to reach a final interpretation of the new state law "that will allow county commissioners to pass an ordinance" addressing golf cart regulation. "And I think you [they] have that right."

For essential background about "the IDCS budget surprise", see this ILB entry from April 30th, re the Supreme Court's April 17th decision in In re T.S. on April 17th -- the date is important. In a report in the IndyStar, Tim Evans wrote:
The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations. It is an important decision, legal experts and child welfare advocates agree, because a law that went into effect Jan. 1 seemed poised to discourage such rulings. The new law, which was included in a property tax measure, shifts the cost of providing care for children in DCS custody from the counties to the state. But there's a catch: If a local judge disagrees with the DCS recommendation, the county must pick up the tab unless the judge can prove the agency's recommendation is unreasonable or contrary to the welfare and best interests of the child. The fear among some is that the requirement would pressure judges to go along with DCS to avoid costing the county money. A LaPorte County judge's decision to overrule DCS was the first case challenged since the law went into effect. An appellate court agreed in March with the judge's recommendation, and now so has the Indiana Supreme Court. But perhaps more importantly, the court said in its April 17 decision that the proper test for the appellate court in such disputes is that it must find the judge's decision was "clearly erroneous" and not merely assume a DCS recommendation is correct.
What happened next was the change to IC 31-40-1-2(f) inserted in the special session budget [via PL 182-2009(ss), SECTION 387], passed June 31st and effective July 1st. See this Aug. 13th ILB entry, which quotes from a Fort Wayne Journal Gazette editorial:
DCS has come under fire from a St. Joseph County juvenile court judge for an 11th-hour addition to the state budget that gives [Director James] Payne alone the authority to approve out-of-state placements of children and teenagers. Previously, judges could order placement out of state if they determined that was the most appropriate setting. * * *

The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.

Court of Appeals Judge May also discovered the special session surprise and referenced it in a footnote in her Aug. 10th opinion in D.S. v. State - see this ILB entry. The Supreme Court, via an expedited review, denied the IDCS petition to transfer D.S. on Aug. 26h -- see ILB entry here. (Chief Justice Shepard added his own statement -- including "In this case, the trial judge has been appealed for choosing the least expensive placement" -- to the end of the Supreme Court's unanimous denial of the IDCS's petition to transfer.)

Finally, see the ILB summary of this Friday's (Aug. 28th) Court of Appeals decision in T.D. v. State of Indiana here (2nd case), along with the links in the ILB's introductory paragraph. In this opinion, which also happens to have been written by Judge May, the special session change is noted in footnote 2, which observes in part:

This amendment shifts from IDCS to the counties the burden of payment for housing and services provided to or for the benefit of a child placed in a facility located outside of Indiana without prior approval by the IDCS director or the director’s designee, notwithstanding the court’s determination regarding the best interests of the child.
Now, for more on the golf cart budget surprise, see this July 15th ILB entry, which indicates re the Indiana State Police:
ISP asked for corrective language in the budget, which basically added IC 9-21-8-57, the statute barring golf carts on highways unless permitted by ordinance.
Subsequent ILB entries indicate the issues that this unannounced special session budget alteration to the law crafted and adopted during the regular 2009 session has occasioned. See: this Aug. 5th entry, headed "New golf cart law, as amended, may work a hardship on those outside Culver town limits;" and this Aug. 9th entry, headed "New golf cart laws may need corrective amendments."

My Thoughts: More surprises are certain to be discovered in the 2009 budget, language added in at the last moment without opportunity for most members of the General Assembly, much less others, to review and understand, what with no committee reports or 2nd and 3rd reading floor debates in each house.

And these changes are often made via non-code language, intentionally buried somewhere within the mega-page bill, intended by their writers to surface only after they have become law.

Of course the constitutional "one subject" requirement was intended to protect against the type of action. These is at least one case currently pending before our Supreme Court involving similar last minute additions to the "budget bill" in an earlier year. But the courts have consistently avoided addressing this problem, claiming that "separation of powers" ties their hands.

Posted by Marcia Oddi on Sunday, August 30, 2009
Posted to Indiana Courts | Indiana Government | Indiana Law

Saturday, August 29, 2009

Ind. Decisions - More on: "Judges deal double defeat to songwriter who sued Lake tourism bureau"

Updating this ILB entry from August 5th, Steve Schmadeke of the Chicago Tribune has a lengthy story, dated Aug. 30th, headed "A short telephone jingle leads to a lawsuit tangle." It begins:

What started out as a sweet little ditty to promote tourism in Lake County, Ind., has turned into a long, bitter copyright battle -- one that has piled up thousands of dollars in lawyers' fees and inundated the courts, leaving one frazzled federal judge to quote rapper DMX: "Y'all gonna make me lose my mind. ... Y'all gonna make me lose my cool!"

The legal dispute has its roots in an obscure 1999 doo-wop song, performed by a Northwest Indiana group, that was used as on-hold music for a time by the Lake County tourism bureau. Though one of the song's co-authors licensed the song for free, the other says she is the sole author and never lent her permission to the tourism board. She has been fighting it in court since leaving the band.

The case has spawned at least three lawsuits, thousands of dollars in judge-ordered sanctions against the woman's attorneys, a three-day trial, estimated legal fees of more than $500,000, reams of paperwork and a subpoena issued to a federal judge. The Indiana woman who brought the lawsuit, Illinois Toll Highway Authority clerk Cheryl Janky, has lost her house, as six years of legal fees mounted, according to court papers and one of her attorneys

"This is one of those cases that gives lawyers a bad name," wrote U.S. District Judge Philip P. Simon in the opening line of a 2008 order.

Attorneys on the case say they see no end in sight, even after a split ruling this month by the 7th Circuit Court of Appeals in Chicago threw out a $100,000 jury verdict against the Lake County Convention and Visitors Bureau, now called the South Shore Convention and Visitors Authority.

Attorneys for Janky, formerly of the doo-wop group Stormy Weather, have appealed the decision and are asking that the entire circuit of 15 judges hear the case, which a bevy of fed-up judges has already remarked has a "long and mostly ridiculous history." A lawsuit in Lake County, Ind., court also remains open.

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

Friday, August 28, 2009

Ind. Gov't. - Allen County's ordinances online [Updated]

From WOWO 1190 AM:

Allen County has teamed up with IPFW's Helmke Library to put the entire county code online. The site includes a search feature that you can use to browse county laws and ordinances. Access is free...you can check it out for yourself by clicking here.
Each of the 19 Titles of the Code is available as a separate PDF document.

This is useful. Most cities and towns ordinances are available online only behind very clunky interfaces run by national companies. For instance, here are Fort Wayne's, linked from the City website.

But not so fast. The new Allen County site also states:

Copyright Indiana University-Purdue University Fort Wayne, 2009. All rights reserved. May not be reproduced without permission.
So what exactly is copyrighted? What does this language mean as applied here. Has IUPUFW copyrighted the Allen County Code? Does this mean you may not quote it without obtaining written permission? Did IUPUFW obtain permission from the county before they slapped a copyright on its ordinances?

Also, where does it say how current this County Code is and how frequently it is / will be updated?

[Updated 8/29/09] A reader has sent me a link to a release about the new, online Allen County Code. It answers the last question above:

Each title of the County Code is displayed individually and can be searched by keyword or by specific Article section. The Allen County Commissioner's Office will provide quarterly updates to the code and a year-end final version that will be archived in the IPFW Helmke Library's historical digital collection.
Notices, perhaps on the Table of Contents, stating "This Code is updated quarterly and was most recently updated ..." will help orient the user.

Archiving a final version of the entire Code each year as, for instance, the Allen County Code for the year 2008" is a very good idea. One caution -- what if one of those 2008 ordinances had been changed in the middle of 2008? How will the researcher know? Perhaps tables or history lines, or both. And how to locate the version before the change? Things to think about ...

Re the copyright issue, ILB readers will remember earlier related entries, including this one protesting the fact that the bulk of the language in Indiana's administrative building codes is not available online or on paper unless it is purchased from a private organization that has copyrighted it.

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Indiana Government

Ind. Decisions - "Court drops abuse suit against Fort Wayne. diocese"

This AP alleged priest abuse story is about a different lawsuit than those that have appeared previously in the ILB.

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Ind. Trial Ct. Decisions

Courts - "D.C. Circuit Tosses FCC Rule Capping Cable Subscribers"

Take a look at this just-posted entry from the Blog of Legal Times.

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Annette Baker v. Heartland Food Corporation , a 9-page opinion, Judge Najam writes:

Annette Baker filed an application for adjustment of claim with the Worker's Compensation Board of Indiana (the “Board”) against her employer, Heartland Food Corporation (“Heartland”). A Single Hearing Judge denied her claim, concluding that Baker had not established that her personal injury arose out of and in the course of her employment. Baker petitioned the full Board, which affirmed the Single Hearing Judge's decision. On appeal, Baker contends that the Board erred when it denied her claim. Applying the positional risk doctrine, we hold that Baker met the initial burden to show that her personal injury occurred in the course of employment, that the burden of proof shifted to Heartland, and that Heartland failed to rebut the presumption that the injury arose out of employment. Accordingly, Baker is eligible for worker's compensation. * * *

Baker would not have been at the place where she injured her back but for the duties of her employment. Heartland did not prove that the injury was the result of an idiopathic cause, a cause personal to her, and it has not, therefore, rebutted the presumption in Baker's favor under the positional risk doctrine. Accordingly, we reverse the Board's decision and remand with instructions to award Baker benefits. Baker would not have been at the place where she injured her back but for the duties of her employment. Heartland did not prove that the injury was the result of an idiopathic cause, a cause personal to her, and it has not, therefore, rebutted the presumption in Baker's favor under the positional risk doctrine. Accordingly, we reverse the Board's decision and remand with instructions to award Baker benefits.

T.D. v. State of Indiana is the fourth case to come to the Court of Appeals under Indiana Appellate Rule 14.1. The others were T.S. [see also the ILB entries under the heading "Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1"], D.M., and D.S. [transfer was denied in D.S. on Aug. 24- see this ILB entry for more info]. As with the earlier cases, in T.D., a 10-page opinion, the trial court's decision is affirmed. Judge May writes:
The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the St. Joseph Probate Court’s modified dispositional order placing T.D., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *

After reviewing IDCS’s and the Probation Department’s Consideration Reports and considering the evidence and testimony admitted during the modification hearing, the trial court concluded IDCS’s alternative placement recommendations were contrary to T.D.’s best interests. The order placing T.D. at Forest Ridge was supported with ample evidence of T.D.’s history of drug abuse, her diagnosed mental disorders, her family relationships, her wishes and those of her grandmother, and the Probation Department’s formal recommendation. We cannot conclude the trial court committed clear error in placing T.D. at Forest Ridge.[2]
______________
[2] At the time the trial court issued its modified dispositional order placing T.D. in the Forest Ridge program, Indiana law provided that IDCS was responsible for the payment of costs and expenses incurred by or on behalf of a child for an out-of-home placement ordered by a juvenile court and implemented after entry of a dispositional decree or modification order. This was true even if the placement was contrary to the IDCS recommendation, unless or until the trial court modified its dispositional order or IDCS prevailed on appeal, so long as the court made written findings that the placement was an emergency required to protect the health and welfare of the child. See Ind. Code § 31-37-18-9(d) and (e). This rule also applied to out-of-state placements if certain additional conditions were met. See Ind. Code §§ 31-37-19-3 and 41-40-1-2(f) (2008). [ILB - that should be "31", not "41"]

But during the 2009 Special Session of the Indiana General Assembly, Indiana Code Section 31-40-1-2(f) was amended. It now reads: “The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director’s designee.” (Emphasis added.) This amendment shifts from IDCS to the counties the burden of payment for housing and services provided to or for the benefit of a child placed in a facility located outside of Indiana without prior approval by the IDCS director or the director’s designee, notwithstanding the court’s determination regarding the best interests of the child. Because the change made to Indiana Code Section 31-40-1-2 did not become effective until July 1, 2009, it is inapplicable to the case before us.

Andre Syval Peoples v. State of Indiana - "Andre Peoples entered a plea of guilty to dealing cocaine as a Class B felony, then after a bench trial was found to be an habitual offender. He argues on appeal the habitual offender enhancement was improper because his prior convictions do not support such an enhancement. We affirm."

In Steven T. Gerber v. State of Indiana , a 14-page decision with three opinions, Judge May writes for the majority:

Steven T. Gerber appeals the denial of his petition for expungement of his arrest records. We reverse and remand. * * *

Gerber raises two issues, which we restate as: (1) whether the trial court erred by treating the running of the limitations period as a prerequisite to petitioning for expungement, and (2) whether the trial court erred by allowing the Prosecutor to advance arguments in opposition to Gerber’s petition. * * *

On remand, the trial court shall either (1) summarily grant the petition, (2) set the matter for hearing, or (3) summarily deny the petition after finding the petition insufficient. The Prosecutor shall not participate in the proceedings on remand.

Reversed and remanded.
BAKER, C.J., concurs in part and dissents in part. [in an opinion which begins] Although I agree with the majority’s substantive analysis, I respectfully part ways from the disposition of the case. I believe that the trial court has only two limited options on remand.
BARNES, J., concurs in part and dissents in part. [a snippet] I part ways, however, from her conclusion that participation by the prosecutor “should not be permitted on remand.”

David Mork v. State of Indiana - "David Mork appeals his conviction for theft as a class D felony. Mork raises two issues, which we revise and restate as follows: I. Whether the trial court improperly denied Mork's motion for discharge under Ind. Criminal Rule 4(B); and II. Whether the evidence was sufficient to support Mork's conviction. We affirm."

NFP civil opinions today (3):

Term. of Parent-Child Rel. of E.H., J.G., and J.J.G.; E.H. and J.G. v. IDCS (NFP)

John L. Parker v. Lee Morgan (NFP) - "After visiting his friend Calvin Guy at an apartment that Guy was leasing from landlord Lee Morgan, John Parker fell in the apartment’s snow-covered parking lot and injured his ankle. When he returned after the snow had cleared, Parker observed that the parking lot was eroded and uneven in the spot where he had fallen. Parker filed a complaint against Morgan, alleging that he negligently maintained the parking lot, which was used by all the tenants and was under Morgan’s control. Morgan filed a motion for summary judgment, which the trial court granted. Parker now appeals, contending that the trial court applied the incorrect standard of care and that there are remaining genuine issues of material fact. Agreeing with Parker, we reverse the trial court’s grant of summary judgment and remand for further proceedings."

Henry E. Fagan v. Brenda D. Fagan (NFP) - "Henry E. Fagan (“Husband”) appeals the order dissolving his marriage to Brenda D. Fagan (“Wife”). He argues the trial court erred by: (1) entering a final dissolution decree without conducting a retrial of the final dissolution hearing; (2) awarding Wife one-half of his pension; and (3) entering an order for child support in excess of the amount agreed upon by the parties. Concluding Husband has waived these issues, and otherwise finding no error, we affirm."

NFP criminal opinions today (6):

Thomas Dose v. State of Indiana (NFP)

Andrew G. Bowers v. State of Indiana (NFP)

Phillip T. Billingsley v. State of Indiana (NFP)

Jason Woolems v. State of Indiana (NFP)

Michael Havison v. State of Indiana (NFP)

Adrian Butler v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In Cruz v. Safford (SD Ind., Judge McKinney), a 10-page opinion, Judge Bauer writes:

Oscar Cruz, an inmate at the Pendleton Correctional Facility, filed a pro se civil rights action against prison guard John Safford under 42 U.S.C. § 1983, claiming that Safford reached into Cruz’s cell and choked him, in violation of his Eighth Amendment right to be free from excessive force. The case was tried to a jury and Cruz lost. On appeal, Cruz argues that the district court committed several reversible errors by: (1) erroneously instructing the jury; (2) denying a motion to amend his complaint; and (3) limiting the cross-examination of one of Safford’s witnesses. For the following reasons, we affirm.

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Summit on Racial Disparities in the Juvenile Justice System

The Summit on Racial Disparities in the Juvenile Justice System, held yesterday in Indianapolis, is the subject of a report today by the AP's Charles Wilson, in the Chicago Tribune. Some quotes:

About 200 judges, social workers and other experts from Indiana and other states gathered in Indianapolis to discuss how to handle the state's racial disparities in the arrest and prosecution of juveniles. The meeting was an outgrowth of a state commission's report in October about youth services in the state.

Russ Skiba, director of the Equity Project at Indiana University, said preliminary figures based on 2008 data show that black youth were on average about three times as likely to be arrested than other races. He also found that blacks were more likely to be detained for minor offenses such as disorderly conduct or violating probation than whites, and were much more likely to be sent to detention centers than white youth arrested for similar offenses. His data showed that blacks overall were about twice as likely as other races to be detained and that blacks were more than six times as likely to be detained for drug offenses -- even though they were arrested for such crimes less often than whites.

His study, expected to be released later this year, was based on data from the nine Indiana counties that have a computerized juvenile justice system database.

Other experts said far too many youngsters -- whatever their race -- are getting caught in the criminal court system.

Zero tolerance policies often enforced by school police can put youth on a direct path to the courts, detention centers and dropping out of school, they say.

"The zero tolerance strategies -- they just really don't work," said Noble Wray, chief of the Madison Police Department in Wisconsin.

Several experts said one solution is to give police officers more discretion when dealing with minor juvenile offenses and to provide alternatives to detention such as rehabilitative workshops or community service.

"Formal involvement in the judicial system is not going to be the answer for changing the behavior of these kids," said Thomas Cleary, the senior deputy district attorney for Portland, Ore.

For background, see this ILB entry from August 14th, and this ISBA webpage, including a resource guide.

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Indiana Courts

Ind. Decisions - "High court denies Gary casino appeal: Ruling clears way for trial of casino mogul's lawsuit against city"

As I wrote in this entry Monday when posting the August 21st transfer list:

There look to be several other denials of interest on today's 8-page list.
One of them was City of Gary, Indiana v. The Majestic Star Casino, et al, about which Jon Seidel reports today in the Gary Post-Tribune. His story begins:
The Indiana Supreme Court has chosen not to hear an appeal from the city of Gary in its legal battle with Majestic Star Casino.

Gary tried to overturn a Marion County Superior Court ruling that rejected a change-of-venue request from the city and denied an injunction that would force Majestic Star Casino owner Don Barden to make monthly payments to the city.

The Indiana Court of Appeals upheld that ruling in May. Last week, the Supreme Court chose not to hear the case. All justices concurred except Chief Justice Randall Shepard and Justice Robert Rucker, according to court records.

Susan Severtson, Gary's corporation counsel, said attorneys will now likely return to Marion County court to argue the full lawsuit as filed by Barden in 2008.

"We have not been advised of the next court date," Severtson said.

Here are earlier ILB entries on the Majestic Star Casino.

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - "Seventh Circuit enforces requirement that district judges address non-frivolous sentencing arguments"

That is the heading to this entry posted yesterday by Prof. Douglas Berman of the Sentencing Law and Policy Blog that begins:

The Seventh Circuit today issued an important little opinion on post-Booker procedural requirements in US v. Villegas-Miranda, No. 08-2308 (7th Cir. Aug. 27, 2009) (available here).

Posted by Marcia Oddi on Friday, August 28, 2009
Posted to Ind. (7th Cir.) Decisions

Thursday, August 27, 2009

Ind. Gov't. - "St. Joseph County to crack down on homestead exemption cheats"

Troy Kehoe of WSBT 2, South Bend, has this long story today. Here are some quotes:

ST. JOSEPH COUNTY — St. Joseph County leaders are working to track down hundreds of thousands of dollars in missing revenue that could help pare down a $3-$4 million hole in next year's County budget. They're also sending a message: homeowners cheating the system are about to be caught.

The issue all revolves around homestead deductions or exemptions. The homestead credit is granted to homeowners equivalent to 60% of the assessed value of the property or $45,000, which ever is less.

Mortgage exemptions of up to $3,000 can also be granted.

That can add up to a significant amount of money per property in tax exemptions, said St. Joseph County Auditor Peter Mullen.

"It can be a big deductions. It's a lot of money per house," he said.

But, there's the catch: only one exemption of each kind is allowed per household, no matter how many properties are owned.

"You can only have one. You can't have two," Mullen said.

And Mullen believed that's exactly what most homeowners had. That is, until he took a closer look.

It all began early this year, as printers hummed in the Auditor's office. More than $68 million in homestead exemption checks were being mailed, and some had lots of zeros.

"Some of those checks were as small as $25. Some of them were as high as $20,000," Mullen said. "But, more than 1,000 of the checks came back returned to us. They said, moved — not at this address."

So, Mullen looked closer and says he shocked at what he found.

"In many, many cases, the person had two or three homestead exemptions, but used different names. They may have used their middle name and not their last name. They may have used initials. They may have had their wife's name on one, joint names on one, and the husband's name on one. And, they got three mortgage and homestead exemptions," Mullen said.

In one case alone, Mullen found one property owner with 12 different homestead exemptions. * * *

"It took a lot of time, and a lot of patience to go through the telephone book, to call the houses and find out who owns what. And, in turn, we have received over $56,000 in taxes that were being avoided," Mullen said. * * *

In Marion County, Indiana, Mullen says auditors have already found more than $1 million in lost revenue to undue homestead credits just this year.

It's money that should be going to pay county bills, and Mullen says it's highly likely there's a lot more of it still out there. * * *

The problem is, catching those with multiple exemptions has come mostly by chance.

"If we catch it, it's generally by luck," Mullen said. "We can then stop it from happening again. But, we can't go an purge everybody in the county without their numbers. Not until they sell the house."

But, a new state law called House Enrolled Act 1344 is aiming to change that by giving county auditors new powers to crack down.

"Anyone who now applies for the homestead deduction must give either the last five digits of their social security number and the last five digits of their driver's license number, or another comparable form of identification, like a state ID, federal ID or passport," said Indiana Department of Local Government Finance Spokesperson Amanda Stanley.

"Then, that's entered into a statewide, secure database that allows county auditors to log in and search statewide if that person is receiving a homestead, either in their county or another county. That will help cut down on multiple homesteads," Stanley continued.

Starting with 2010 Indiana property tax bills, those requirements will expand to all homeowners — even those already receiving a homestead or mortgage exemption. * * *

The message, both Stanley and Mullen agreed, is a crystal clear one: cheat and you will be caught. And, the penalties can be stiff.

"They're liable for the amount of the deduction the person was allowed, plus a civil penalty equal to 10% of the additional taxes due," Stanley said.

That's in addition to fines that may be assessed for delinquent payment of property taxes.

The goal is simple: honest mistake, or intent to defraud, county leaders want every homeowner to pay their fair share.

"We can go back up to three years to check. And, we'll go after them all," said Mullen.

The story includes a link to this July 8, 2009 memo from the Indiana Department of Local Government Finance.

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Indiana Government

Ind. Gov't. - "Sex Registry Costs Increasing But Can't Be Cut "

That is the headline to this August 26th story by Patrick Fazio, available via MyWabashValley.com:

As local governments work to balance next year's budget, there's one part that's actually illegal to cut. This program only gets more expensive each year with no money to pay for it.

Those increasing costs have Valley law enforcement worried.

"It's an unfunded mandate. That's a position we've caught ourself in many times that laws come down without the finances to enforce them." Vigo County Sheriff Jon Marvel says it costs a lot to maintain the Sex Offender Registry. "It started out first as a sexual registry. Anyone convicted of a sexual crime in nature against children."

But the website has expanded to included all sex offenders and violent criminals. They stay on there from 10 years to life.

"If somebody's convicted of a violent sexual offense, we have to check on that individual six times during the year to make sure he says he's where he's registered to be," says Marvel who points out that the sex offender laws don't give counties any money to hire someone to check on the criminals and update the registry. "Prior to the registry, that officer that we have assigned to it now was assigned solely to the Drug Task Force."

Not only does the registry take time away from other duties, but it only gets busier as more offenders get released from prison.

"That particular officer then has to go out to the house, knock on the door and make sure he lives there. And that's just one individual that registered on that registry," Marvel says.

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Indiana Government

Ind. Decisions - An interesting non-Indiana opinion today from 7th Circuit

In Federal Trade Commission v. Kevin Trudeau (ND Ill.), a 55-page opinion, Judge Tinder writes:

If you have a problem, chances are Kevin Trudeau has an answer. For over a decade, Trudeau has promoted countless “cures” for a host of human woes that he claims the government and corporations have kept hidden from the American public. Cancer, AIDS, severe pain, hair loss, slow reading, poor memory, debt, obesity—you name it, Trudeau has a “cure” for it. To get his messages out, Trudeau has become a marketing machine. And the infomercial is his medium of choice. He has appeared in dozens of them, usually in the form of a staged, scripted interview where Trudeau raves about the astounding benefits of the miracle product he’s pitching. But Trudeau’s tactics have long drawn the ire of the Federal Trade Commission (“FTC”). By promoting his cures, Trudeau claims he is merely exposing corporate and government conspiracies to keep Americans fat and unhealthy. But the FTC accuses Trudeau of being nothing more than a huckster who preys on unwitting consumers—a 21st-century snake-oil salesman. For years Trudeau has dueled with the FTC in and out of court.

Trudeau’s latest run-in concerns his cure for weight loss, which he explains in his book, The Weight Loss Cure “They” Don’t Want You to Know About. By the time Trudeau began promoting the book, courts had sharply curbed his marketing activities. A consent decree banned Trudeau from appearing in infomercials for any products, except for books, provided that he did not “misrepresent the content of the book.”

That proviso forms the basis for this latest lawsuit. The FTC claimed that Trudeau’s Weight Loss Cure infomercial misled consumers by describing a weight loss program that was “easy,” “simple,” and able to be completed at home, when in fact it was anything but. The program requires a diet of only 500 calories per day, injections of a prescription hormone not approved for weight loss, and dozens of dietary and lifestyle restrictions. The district court sided with the FTC, concluded that Trudeau had misrepresented his book, and held Trudeau in contempt. As sanctions, the court ordered Trudeau to pay $37.6 million and banned Trudeau from appearing in any infomercials, even for books, for the next three years.

Trudeau appeals everything. He argues he should not have been held in contempt because he merely quoted his book and expressed his opinions. And he contends that the court’s sanctions were not appropriate for civil (as opposed to criminal) contempt proceedings. We disagree with Trudeau about the contempt finding—he clearly misrepresented the book’s content—but we are troubled by the nature of both the $37.6 million fine and the infomercial ban. So we must remand those aspects of the court’s judgment.

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

Ind. Courts - "Marion County Clerk’s office now accepting credit cards"

From a press release:

INDIANAPOLIS – Marion County Clerk Beth White announced today that the Clerk’s office is now accepting credit and debit cards for most court fees.

In addition to accepting credit cards for traffic violations or cash bonds, customers can now pay the following using their credit or debit card: child support, case filing, probation fees, marriage license and copy fees. These payments are accepted from 8 a.m. to 4:30 p.m., Monday through Friday in room W-123 of the City County Building.

“Today, customers expect flexible options wherever they make payments or purchases,” Clerk White said. “We are pleased to expand our payment options to include credit and debit cards to make paying court fees and fines more convenient for our customers.”

Besides the expanded in-office payment options, customers can also pay child support and traffic tickets online or over the phone using a credit/debit card any time they wish. Bond payments are accepted around the clock at the Arrestee Processing Center with the additional option to pay cash bonds with a debit/credit card. A nominal convenience fee is added to cover the cost of processing all credit/debit card payments whether made in the office, online or over the phone.

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In In the Paternity of C.B. & C.R.; J.R. v. M.B. (NFP), a 24-page opinion, Judge Brown writes at p. 21:

We cannot say that Father intended to give Mother a gift where the testimony of both Mother and Father reveals that the $1,500.00 payment was made in connection with a support agreement that was being discussed even if the agreement was never consummated in its entirety.[6]

In summary, we conclude that the trial court's decision not to reduce Father's total arrearage by $1,500.00 was clearly erroneous and instruct the trial court to modify Father's total arrearage to reflect Father's previous payment of $1,500.00 to Mother.
_________
[6] We also acknowledge that an obligated parent will not generally be allowed credit for payments not conforming to the support order. Decker v. Decker, 829 N.E.2d 77, 79 -80 (Ind. Ct. App. 2005) (citing Kaplon v. Harris, 567 N.E.2d 1130, 1133 (Ind. 1991)). However, Indiana courts have recognized the following exceptions to this general rule: “(1) payments made directly to the mother, (2) payments made via an alternative method agreed to by the parties and substantially complying with the existing decree, (3) payments covered when the non-custodial parent takes custody of the children with the other parent's consent, and (4) payments made toward the funeral expenses of a child.” Id. (emphasis added); see also Payson v. Payson, 442 N.E.2d 1123, 1129 (Ind. Ct. App. 1982) (holding, where the father was ordered to make child support payments directly to the clerk of the court but instead made payments directly to the mother and to third parties for rent, that “[i]n a situation where, as here, the parties have agreed to and carried out an alternate method of payment which substantially complies with the spirit of the original support decree, we find it would be unfair to refuse to credit the non-custodial parent simply because the payments were not made through the clerk.”) Here, according to Father and Mother's testimony, the $1,500.00 payment was made directly to Mother by Father. Hence, even if the payment was a non-conforming payment, Father may be credited for the payment because he made the payment directly to Mother.

In Mark P'Pool v. Indiana Horse Racing Commission (NFP), a 16-page opinion, Judge Robb writes:
Mark P’Pool appeals the trial court’s order affirming the decision of the Indiana Horse Racing Commission (“IHRC”), which imposed a six-year suspension and $30,000 fine upon P’Pool for violations of IHRC rules. For our review, P’Pool purports to raise a single issue, whether he was denied due process during the IHRC proceedings, based on nine alleged errors delineated below. Concluding the IHRC’s decision is supported by substantial evidence, the penalty imposed is not excessive or arbitrary, P’Pool was not denied due process, and the ALJ did not improperly exclude evidence, we affirm.
NFP criminal opinions today (4):

Efren R. Diaz v. State of Indiana (NFP)

Essu E. Brunson v. State of Indiana (NFP)

Abdullah Alkhalidi v. State of Indiana (NFP)

Marquise Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Another NFP COA decision reclassified

The case is Carla Cunningham v. Review Board - NFP opinion issued 6/18/09; Appellee's motion for publication filed 7/16/09; Appellant's petition for rehearing received 7/20/09 - lacks certificate of service; Appellant's petition for rehearing with certificate of service 7/31/09; Ordered published 8/19/09; Appellant's petition for rehearing denied 8/28/09..

From the opinion: "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."

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Time might not be on Delaware County Prosecutor Mark McKinney's side"

So announces the Muncie Star-Press in what appears to be a "teaser" leading to an "in print only" story. It continues:

And neither is an ex-colleague who hopes to win McKinney's job in the 2010 county election.

Supporters of the beleaguered prosecutor are presumably praying the Indiana Supreme Court acts soon on a proposed deal -- stemming from a disciplinary complaint filed by Mayor Sharon McShurley -- that calls for McKinley's license to practice law to be suspended for 90 days.

It's been 111 days since that proposed settlement was submitted to the Supreme Court for its consideration.

If the court does not act in the case in the relatively near future -- and presuming it accepts the 90-day suspension, now seen as a best-case-scenario for McKinney -- the prosecutor could face the grim prospect of mounting a re-election campaign while under a suspension.

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Indiana Courts

Ind. Courts - Anonymous letter causes Knox County judge to step down from case

Jenny Peter of the Vincennes Sun-Commercial has a lengthy report re Knox County Superior Court Judge Tim Crowley's decision. Some quotes:

Judge Tim Crowley announced has removed himself from the ongoing case between the city and the owners of the Executive Inn.

Crowley says he is choosing to “disqualify and recuse” himself from the case because of a letter circulated by mail on or around Aug. 20 that Crowley called a “vicious and defamatory attack” on him.

The Sun-Commercial did receive a copy of the letter, which was unsigned and had no return address.

The page-long letter jumps back and forth between harshly criticizing the city’s elected officials, although none are named specifically, and Crowley. The writer accuses the city of wanting to seize the hotel for its own monetary gain and accuses Crowley of, among other things, helping the city in its task.

Mayor Al Baldwin has publicly denied such allegations.

John Bodine, the attorney for the hotel’s owners, James and Mark Valdes, said neither he nor his clients had anything to do with the writing or sending of the letter.

“This is a travesty,” Bodine said. “Whoever issued that letter, the act was shameful, and I think Judge Crowley had every reason to be upset.”

“Certainly (the letter) did not come from any of our people,” he said. “I think it’s a shame, and I’ve actually been directed by my clients to ask the judge to reconsider his action and to remain the presiding judge.”

Crowley said he thought the letter undermined his efforts in the case and made unnecessary and untrue personal attacks.

“This anonymous mailing attacked the sitting judge on a personal and professional level and maliciously and deliberately sought to damage the judge’s name and reputation,” he writes.

Posted by Marcia Oddi on Thursday, August 27, 2009
Posted to Indiana Courts

Wednesday, August 26, 2009

Ind. Decisions - Costs assessed in Hawkins/Broyles disciplinary cases

Updating earlier ILB entries, the Indianapolis Star reports today:

The Indiana Supreme Court has ordered a Marion Superior Court judge and a former appointed master commissioner to pay nearly $18,000 in costs for their disciplinary proceedings.

The disciplinary actions arose from the court's mishandling of an order setting aside a man's rape conviction, delaying his release from prison for a year or longer.

Judge Grant Hawkins, who finished serving a 60-day unpaid suspension in May, must pay about $10,500 to cover his share of the fees and expenses for the inquiry, according to an order issued Friday.

The rest, about $7,400, was assessed to retired Master Commissioner Nancy L. Broyles. She had handled the case in question and agreed never to serve in a judicial capacity again.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court denies transfer in Child Services expedited review

In the opinion in D.S. v. State of Indiana, issued August 10th, Judge May wrote:

The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the Madison Superior Court’s modified dispositional order placing D.S., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *

The court concluded IDCS’s placement recommendations were contrary to D.S.’s best interests. It placed D.S. in the Rite of Passage program and supported its order with specific factual findings based on ample evidence of D.S.’s history of drug abuse, gang affiliation, and expulsion from school, D.S.’s athletic and leadership abilities, his family relationships, his wishes and those of his mother, and the Probation Department’s formal recommendation. The trial court’s findings support its placement decision. We therefore cannot conclude that the trial court committed clear error in ordering that D.S. be placed in the Rite of Passage program.

In this Order, issued August 24th, the Supreme Court unanimously denies the IDCS's petition to transfer.

Chief Justice Shepard adds to the transfer a statement on the new expedited review procedure:

This expedited appeal procedure was crafted through superb collaboration by all three branches of our government to provide protection from potential excessive spending in placement of abused, neglected, or delinquent children. Through the first eight months of this undertaking, two such appeals have reached us. * * *

In this case, the trial judge has been appealed for choosing the least expensive placement.

The Department has urged that the judge be commanded to place the child in one of several Indiana facilities, the cheapest of which will cost 50% more per day than the one in Arizona which all the remaining players, including the Prosecuting Attorney, think can provide the best chance to divert the juvenile from delinquency to a more successful life. That is, after all, the point of government intervention.

I stand fully ready to smack down anything that even sniffs of judicial overreaching or overspending. But if the appeals we have seen so far represent the worst instances of attacks on the public fisc, it suggests to me that judges, prosecutors, probation departments, and guardians are acting very responsibly.

The earlier expedited review case was D.M. v. State of Indiana, from June 10th. In both cases, the trial judge's decision re placement was affirmed.

Not only has there been dispute about which branch of government has ultimate authority in these placement issues, but also about what level of government must pay the expenses of out-of-state placements. In this regard, see this ILB entry from August 10th, headed "Apparently there are all sorts of surprises in the special session budget," discussing a footnote in D.S. about a new change in the language re the responsibility of the IDCS for to pay for placements outside Indiana.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Courts - changes in store for PACER?

The Blog of Legal Times reports this afternoon:

The Administrative Office of the United States Courts announced Monday that they are beginning a year-long “comprehensive program assessment” of the Public Access to Court Electronic Records system, the 21-year-old Web portal for perusing federal court documents. The office is asking users for input, and say everything about the system is up for discussion — including whether it should continue to charge for its services.

“All aspects of PACER are in bounds if users want to discuss them,” said Administrative Office spokesman Richard Carelli.

Recall this ILB entry from March 1, linking to Senator's Lieberman's letter to the judge chairing the Committee on Rules of Practice and Procedures of the Judicial Conference of the United States.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Courts in general

Courts - "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time" [Updated]

That is a quote from George Washington law prof Orin Kerr, who has just posted this entry to The Volokh Conspiracy, headed "Ninth Circuit Enacts Miranda-Like Code for Computer Search and Seizure." He begins:

The Ninth Circuit's new computer search and seizure decision in United States v. Comprehensive Drug Testing is a truly astonishing decision. The majority opinion, by Judge Alex Kozinski, announces a laundry list of brand-new rules, introduced with no citations to any authority, that henceforth the government must follow when executing warrants for digital information. I can't recall having read anything quite like it, although it does bring to mind Miranda v. Arizona.
[Updated 8/27/09] More from Prof Kerr here.

See also this article today by Dan Levine of The Recorder, headed "9th Circuit Sets Doctrine for Electronic Searches, Finds Steroids Case Search Unlawful." It begins:

The Justice Department's aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age.

In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California. The computer files taken by the government revealed information about far more people -- including professional baseball players and others -- than allowed by a search warrant.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Courts in general

Courts - More on: "Federal Judges Given Guidance on Web Sources"

Updating this ILB entry from August 23rd, a reader has sent me the document which, as the cited article stated:

The Judicial Conference of the United States has sent the chief judge in every federal district five pages of "suggested practices" on the subject.
Access it here.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Courts in general

Courts - "Kentucky court strikes down reference to God in state law"

Stephene Steitzer of the Louisville Courier Journal reports today in a story that begins:

FRANKFORT, Ky. — A Franklin circuit judge Wednesday declared unconstitutional a reference to God in a 2006 law creating the Kentucky Office of Homeland Security.
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In an 18-page order, Judge Thomas Wingate said the General Assembly created an official government position on God when it passed a law requiring the office to acknowledge “the dependence on Almighty God as being vital to the security of the Commonwealth.”

Wingate said it is clear that the purpose of the language wasn't to celebrate the historical reasons for “our great nation's survival in the face of terror and war,” but instead declared publicly that the position of the state was that an “Almighty God exists and that the function of that God is to protect us from our enemies.”

“The Commonwealth's history does not exclude God from the statutes, but it has never permitted the General Assembly to demand that its citizens depend on Almighty God,” Wingate wrote.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

Randall Bonewitz and Russell Dellinger v. Ted Parker - see expanded ILB entry here.

NFP civil opinions today (1):

The Invol. Term. of the Parent-Child Rel. of S.S.; M.S. and K.S. v. Marion Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (2):

Thomas A. Smith, Michael J. Heffern, Tina L. Whiting, Addison R. Pijnapples, and Roderick Berry v. State of Indiana (NFP) - This is an interlocutory appeal from the Jay County Circuit Court, Honorable Brian D. Hutchison. Judge Bradford writes:

Appellants/Defendants Thomas Smith, Michael Heffern, Tina Whiting, Addison Pijnapples, and Roderick Berry (collectively, “Appellants”) bring this consolidated interlocutory appeal from the trial court's denial of their motions for a change of judge. Appellants contend that the trial court erred in denying their motions for a change of judge because certain statements allegedly made by the trial judge suggest that the trial judge was biased or prejudiced against the Appellants. We affirm.
Tyon L. Easley v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - COA decides environmental nuisance case today

There are also a number of NFP opinions today, but this "for publication" opinion will be treated individually.

In Randall Bonewitz and Russell Dellinger v. Ted Parker, a 13-page opinion, Judge Najam writes:

Randall Bonewitz and Russell Dellinger appeal from the trial court's judgment on their complaint alleging that Ted Parker is maintaining a nuisance by operating a furnace to dry mycelium adjacent to their home. The trial court found that “improvements” Parker has made to the operation have “greatly reduced” the adverse effect of Parker's mycelium-drying business on the home, and the court declined to enter a total permanent injunction against the business. We conclude that notwithstanding the improvements, Parker continues to maintain an unabated nuisance which deprives Bonewitz and Dellinger of the free use and comfortable enjoyment of their property.
All emphases added by ILB. The opinion continues:
In 1997, Bonewitz and Dellinger bought an old farm house on approximately one-half acre in North Manchester. Parker owns the surrounding farm land, which, at the time Bonewitz purchased the farm house, Parker used for farming hay. But in 2003, Parker started a new business called Parker By-Products, a business which dries wet mycelium to be sold for use in animal feed. Mycelium is a byproduct of the manufacture of food-grade citric acid. In order to dry mycelium, Parker built a furnace, which uses sawdust as fuel. The drying process creates emissions that include gases and sawdust ash. Those emissions are discharged from a smoke stack on the furnace, which is located approximately 100 to 150 feet from the Bonewitz home.

When Parker started the business, he obtained a variance from agricultural use to business/commercial use from the Wabash County Board of Zoning Appeals, over the objections of Bonewitz and Dellinger. Parker By-Products operates as follows: up to three to five semi tractor-trailers per day deliver wet mycelium to Parker's facility; sometimes, the wet mycelium sits outside in the sun and emits a stench; trucks deliver sawdust to Parker's facility; initially the sawdust was dumped outside, but Parker has since extended a pole building to accommodate dumping inside; the sawdust is burned to heat the dryer, which dries the mycelium; and trucks pick up the dried product and haul it away. When it is operational, the business generally runs “24/7.”

Bonewitz and Dellinger's enjoyment of their home has been substantially affected by Parker's business operation in numerous ways: emissions of smoke and/or steam surround the house; a “rotten, sour” smell permeates the house and clings to fabrics; a “nauseating” odor comes from the drying process, similar to that of “a rendering plant when they're burning dead animals,” ; sawdust blows onto the Bonewitz property and covers everything; when the dryer is running, Bonewitz and Dellinger can feel strong vibrations that cause the house to shake; and trucks come and go everyday and at all hours of the night, disturbing Bonewitz and Dellinger in their sleep. Because of the foul odor and sawdust, Bonewitz and Dellinger avoid going outside, keep their windows closed, and do not have the unrestricted use of their yard or swimming pool. Parker has taken steps to reduce the sawdust and stack emissions blowing onto the Bonewitz property, to minimize the vibrations caused by the dryer, and to ameliorate the noise and lights associated with the trucks during the night.

On October 10, 2007, Bonewitz and Dellinger filed a complaint alleging that Parker's mycelium-drying operation constitutes a nuisance. Bonewitz and Dellinger sought a permanent injunction or, in the alternative, damages. Following an evidentiary hearing, the trial court declined to enter a total permanent injunction, but ordered that Parker be permanently enjoined from unloading sawdust outside of the pole building. The trial court did not award damages. This appeal ensued. * * *

Indiana Code Section 32-30-6-6 defines a nuisance as whatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property. * * *

Here, the undisputed evidence shows that Bonewitz and Dellinger have suffered a number of unreasonable infringements on the use and enjoyment of their property as a result of Parker's business. * * * While the nuisance may have been partially ameliorated, it has not been abated. * * *

The issue here is the off-site impact of infringements from a new business inserted into the neighborhood and whether that impact would offend persons of ordinary sensibilities.

Parker contends that Bonewitz and Dellinger bought their farmhouse knowing that they were in the middle of an agriculturally-zoned area, and he alleges that they “came to the nuisance in the sense that the complaints they have are comparable to the complaints of anyone experiencing any discomfort by any agricultural operation.” Parker also notes that one who moves to an agricultural area simply cannot complain of discomfort based upon agricultural uses. And Parker asserts that Bonewitz and Dellinger purchased a farmhouse in the middle of a farming area but do not want to experience “the normal residual effects of farming.”

But Parker's premise is flawed because Parker By-Products is a separately organized business and not an agricultural use. It is for that very reason that a variance was required.* * * As this court has recognized, not all activities with an agricultural nexus are themselves agricultural. * * *

Here, it is readily apparent that the Parker By-Products “feed business” is a separately organized activity and is, therefore, not an agricultural pursuit. * * *

In requesting that we affirm the trial court's judgment, Parker relies in part on this court's opinion in Wendt v. Kerkhof, 594 N.E.2d 795 (Ind. Ct. App. 1992), trans. denied. In Wendt, we affirmed the trial court's judgment in favor of a hog farmer where the plaintiff filed a complaint alleging a nuisance due to odors from the farm. We observed that “much conflicting evidence was presented, both from experts and nearby landowners” regarding the odors. * * *

In this case, however, the evidence is uncontradicted that offensive odors envelop and permeate the Bonewitz home. While the evidence shows that Parker has taken steps to reduce the effects of noise and dust emanating from his business, the evidence also shows that noise and offensive odors continued to infringe upon and obstruct the free use of their property. * * * As a result, Bonewitz and Dellinger live with the regular onslaught of noise, dust, and odors, which offend the senses, obstruct the free use of their property, and interfere with their comfortable enjoyment of life and property. See I.C. § 32-30-6-6. Thus, the evidence leads only to the conclusion that the nuisance continues unabated, and we are left with the firm conviction that the trial court erred when it declined to grant the relief sought. * * *

But that is not the end of our inquiry. The trial court's judgment addressed Bonewitz's request for a permanent injunction and expressed concern that such equitable relief “would effectively destroy” Parker's business. We share the trial court's concern. * * *

An injunction will not issue where the law can provide a full, adequate and complete form of redress. Id. Here, the trial court did not address Bonewitz and Dellinger's request, in the alternative, for damages. * * *

On remand, we instruct the trial court to determine first whether Bonewitz and Dellinger can be made whole with a money judgment. If so, the trial court shall consider the evidence of Bonewitz and Dellinger's damages. The measure of damages is not restricted to the diminution in rental value. * * *

A proper measure of damages shall be calculated as the difference between the market value of the Bonewitz home if the Parker By-Products mycelium-drying operation ceased and its current market value with an active nuisance next door. * * * Further, Bonewitz and Dellinger presented evidence, and the trial court found, that they have been “disturbed and annoyed” by Parker's business, and they may also be entitled to damages for their discomfort and annoyance as occupants. * * *

On remand, if the trial court decides to award damages in lieu of a permanent injunction, the court shall conduct a hearing solely on the issue of damages, giving the parties an opportunity to present additional evidence on that issue. If, however, the trial court determines that Bonewitz and Dellinger cannot be made whole with a money judgment, then the court shall issue a total, permanent injunction against Parker prohibiting operation of his mycelium-drying business.

Two points:

(1) The opinion stresses that this is not an agricultural operation. This distinguishes the mycelium-drying business from a confined feeding operation.

(2) The nuisance statute, IC 32-30-6-6, is cited twice by the court. IC 32-30-6-9, the "right to farm" section, is not cited at all. Take a look at it. And look also at this June 6th ILB entry, and at fellow attorney Marty Lucas' comments at the end of the entry.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Environment | Ind. App.Ct. Decisions

Courts - One of the federal trial judges in the 7th Circuit is reportedly not taking new criminal cases

"U.S. judge Stadtmueller not taking new criminal cases" is the headline to this lengthy story by John Diedrich of the Milwaukee Journal Sentinel, dated August 23rd. Some quotes:

A federal judge in Milwaukee has stopped taking new criminal cases and is passing off cases he already had in a move legal experts are calling highly unusual and perhaps unprecedented nationally.

The changes come after U.S. District Judge J.P. Stadtmueller got into a high-profile dustup with prosecutors, and his moves are likely to lead to delays in other judges' courts.

Federal judges, who make $174,000 a year and have lifetime appointments, spend about half their time on criminal cases, which take precedence over civil lawsuits, experts said.

Stadtmueller has not taken any new criminal cases since July 22, while his three Milwaukee colleagues received all 16 new criminal cases with 48 defendants, according to court records.

Stadtmueller also recused himself on at least a half-dozen criminal cases, sending those to the same judges. He has not passed off all his criminal cases, and it is unclear whether he will, though officials said they expect more cases to be moved.

Stadtmueller has not explained in writing what he is doing and did not return repeated calls from the Journal Sentinel. His brief recusal orders cite law saying judges must pass off a case if they give an opinion on it.

Legal experts say that, without more explanation, it is impossible to figure out why Stadtmueller is recusing himself. Whatever the reason, his position will cause problems for other judges, they said. * * *

Stadtmueller's moves come after the U.S. attorney's office in Milwaukee took the rare move of challenging him at the 7th Circuit U.S. Court of Appeals in the spring. Prosecutors accused Stadtmueller of showing bias in a 2005 gun case and breaking federal rules by suggesting they strike a plea deal in it.

Underlying that dispute was a concern by Stadtmueller - and shared by other judges - about the kind of cases coming into federal court. Because of congressional changes, federal court has shifted from mostly complex white-collar and organized crime to more low-level drug, gun and child pornography cases.

Stadtmueller wondered how this gun case had taken so much court time and why it was in federal court in the first place. The simple case was hung up by a plea change and several appeals. The government said those comments showed Stadtmueller was biased and he should recuse himself. Stadtmueller fired back that the government was "judge-shopping."

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Courts in general

Ind. Law - "Investigators are also trying to locate an edition of the Auto Trader from June 20, 1991 with a listing for a blue van with high mileage for $1,500"

This is why librarians archive materials, even those that seem unlikely. But too often, this does not happen. And the problem is much worse with digital publications. How long do / will online publications, including the news channels, preserve their digital records?

From a story last evening on The Indy Channel, 6NEWS:

INDIANAPOLIS -- An inmate in North Carolina could hold the key to solving the killing of an Indianapolis woman nearly two decades ago. * * *

Investigators are also trying to locate an edition of the Auto Trader from June 20, 1991 with a listing for a blue van with high mileage for $1,500. Police said they believe the ad may put Hall in Indianapolis at the time of Dewey's killing.

The ownership of the publication has changed since 1991, and police said they cannot find an archived copy.

"That is a potential piece of this jigsaw puzzle that could help to provide a link in building a case," Spurgeon said. "The information that we're getting right now, and the proactive stance the detectives have been taking, is leading us to believe that we may be able to solve the case."

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Indiana Law

Ind. Gov't. - Rockies Express Pipeline apparently reneges on Indiana agreements

As this June 27th ILB entry began:

The ILB has posted a number of entries about the construction of the Rockies Express Pipeline across the state and the related lawsuits.
On August 19th John Estridge, editor of The Brookville News, published this story:
County officials from across Indiana are banding together with one thought in mind, holding the fire to REX [Rockies Express Pipeline] officials’ feet.

Apparently, REX is not going to honor any of its road maintenance agreements with any of the counties in Indiana.

That was the topic of discussion by officials from Decatur, Shelby and Franklin counties at the Franklin County Commissioners’ meeting Monday morning. And that may mean the county is out a couple of million dollars.

REX constructed a 42-inch high pressure natural gas pipeline from Colorado to Ohio’s eastern border. It went through the width of Franklin County south of Brookville and north of Batesville. REX is currently pumping natural gas through the pipe.

Kem Anderson, highway superintendent for Shelby County, and Mark Mohr, highway superintendent for Decatur County, attended the Franklin County Commissioners meeting. They were there hoping for a chance to talk to REX officials.

REX officials were scheduled to be at the meeting to discuss Franklin County’s road maintenance agreement. REX officials and county officials toured the county on Wednesday, July 29, to view the county’s damaged roads from the construction process.

An engineer from CRIPE Engineering hired by REX was supposed to draw up an engineering report and present it at Monday’s meeting.

However, REX officials, through a message from Franklin County Attorney Gene Stewart, said they would not attend the public meeting and wanted to meet at another time in private with the commissioners.

“They don’t want to meet with us in public, that’s bullcrap,” commissioner Tom Wilson said.

That is when Mohr from Decatur County spoke up.

“We have some major concerns,” Mohr said. “They’re dragging their feet. We all need to join forces, put our heads together and go after their bonds.”

Mohr said the Decatur County attorney began the paperwork for taking REX’s bond, it is $2 million with each county, but then REX showed up and drove the county with the Decatur County officials.

“It gave us hope,” Mohr said. “I heard they were going to meet with you guys, and I could get a jump on it and see how you guys were going to react to it.”

Anderson said Shelby County is getting the run around. Johnson County is in the same situation.

Franklin County Commission President Eric Roberts said he knows the son of a Putnam County commissioner, and that county is having the same problems with REX.

Commissioner Don Vonder Meulen suggested the people that were at Monday’s meeting get together later and have another meeting on the situation.

Instead, the officials then spent some time at Monday’s meeting discussing what steps are involved in taking the bonds REX has in place. Roberts said he has asked the question before, and he is not sure of the process.

Officials acknowledged REX could fight the process in federal court. “They know federal court is going to cost us a ton of money,” Wilson said.

Wilson said all county officials and residents in the counties should contact their Congressmen, Senators and Gov. Daniels. “We need to have a town hall meeting with Obama,” Wilson said.

The hope is concerted action by the counties will make REX honor its road maintenance agreements with the counties without everything going into litigation.

“If nothing else, maybe this will scare them into doing something,” Wilson said. “Our attorney will get with the other (county) attorneys and make one big effort.”

The problems for all the counties are while the process is ongoing, the clock on when paving can be done is ticking, and all the counties are facing the same financial problems. Franklin County is probably in the worst position of all the counties, however.

Mohr said the state highway department is beginning to let loose of the federal stimulus money on road projects, meaning large asphalt companies will be busy with major projects and will not want to deal with the relatively small projects each county will have from the REX damage.

Also, if REX would pick one contractor to fix all the damages of all the counties, then how long will that take across the state, he asked.

Then, there is the steady ticking of the clock. “The problem is we’re 45 days from cold weather,” Mohr said. “The situation we have now is we don’t have enough cash to go out and spend $1 million and hope they pay us back.”

“Neither do we,” Roberts said. “We just talked about $400,000 (flood damage to roads and bridges). The tax bills were late and motor vehicle (funding) is low. We’re all in the same boat.”

Jon Leach with O’Mara Paving estimated it would take between $3 to $4 million to fix Franklin County’s roads. REX’s bond is just $2 million.

“We have 27 miles of pipe,” Roberts said. “No other county has as much roads (negatively affected).”

Franklin County Highway Department District One Foreman Chester Ball summed up the unfair quality about the whole situation. “It’s very upsetting that they’re not here,” Ball said. “The engineer said he’d get back with us in one week. Now it’s three (weeks). They got what they wanted. The gas is flowing.”

[Hat tip to Indiana Legislative Insight]

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Indiana Government

Environment - Superfund site in Evansvlle; Indianapolis wins judgment for cleanup costs

From the August 23rd Evansville Courier & Press, this story by Mark Wilson. It begins:

Some of Evansville's oldest and poorest neighborhoods are on the verge of becoming a Superfund site targeted for a widespread cleanup of soils contaminated with lead from the smokestacks of factories long gone.

But children there will remain at risk because of the area's aging homes even after the cleanup is complete.

The risk of lead poisoning there, and in other parts of the city, too, is probably just as great from exposure to the lead-based paint in older housing, said Dwayne Caldwell, environmental health specialist with the Vanderburgh County Health Department.

But persuading parents to have their children tested has been an uphill battle.

From a press release issued yesterday by the Indianapolis mayor's office:
The City of Indianapolis succeeded in its first step to secure repayment of millions of taxpayer dollars used to clean up a contaminated eastside Brownfield site. An August 20th judgment secured against the Ertel Manufacturing Corporation found the company caused or contributed to environmental contamination at their former site on Dr. Andrew J. Brown Avenue. The case will now proceed with a determination of damages, estimated by the City to be more than $5 million. * * *

Before the City cleaned up the Ertel site, it contained significant amounts of contamination and an abandoned factory. To date, the City has spent more than $5 million to remove tons of contaminated soil and to protect the Martindale-Brightwood neighborhood from contamination. In the court's ruling, it found that Ertel is liable to the City for these costs.

Today, the reclaimed property is an expansion site for Major Tool & Machine. The clean-up efforts allowed Major Tool & Machine to keep more than 250 jobs in Indianapolis and extend its operation.

Posted by Marcia Oddi on Wednesday, August 26, 2009
Posted to Environment

Tuesday, August 25, 2009

Ind. Law - More on "Attorney William Crabtree II, facing trial, found dead in Dyer home"

Updating this ILB entry from earlier today, Dan Hinkel of the NWI Times has a comprehensive article on Mr. Crabtree. Some quotes:

Before his career dissolved, Crabtree ran his one-lawyer practice in an office along Indianapolis Boulevard in Schererville, representing clients in civil lawsuits. His name is still posted on the sign at the gleaming office building, although his former office is now empty.

He also gave time to local nonprofit groups including the Campagna Academy. He once served as president of the Hoosier Boys Town Foundation, the funding group for Campagna's precursor. He also served on the board of the Partnership for a Drug Free Lake County.

Crabtree's criminal case stemmed from an alleged scheme involving clients' tax payments and land deals. Federal authorities said that in September and October 2007, the daughter of a dead man gave Crabtree checks worth $394,636 to pay taxes on her father's estate. But Crabtree changed the name on the checks and kept the money, then forged receipts and e-mails to illustrate tax payments he didn't make, according to the charges.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Indiana Law

Environment - "Angola City Council approves Univertical cleanup agreement"

The ILB has had a long list of entries on this issue. Today Jim Measel of WTHD 105.5 (NE Indiana) reports:

ANGOLA - The Angola City Council approved a 19-page agreement between the city and Univertical on Monday night which will cover the environmental clean-up work at the former Dana-Weatherhead site.

Attorney Melina Kennedy from the law firm of Baker and Daniels said the agreement includes an eight year commintment for Univertical to stay in Angola. It also releases Univertical from any further liability.

Univertical has agreen to contribute $1 million towards contamination remediation plan.

To help pay for the clean up and improvements to the city's sewer system, the Council passed an ordinance on third reading which increase monthly sewer rates for the average residential user by $2.88.

Local Option Income Tax money is being used by the city to help pay for the increase in the rates.

Ratepayers will probably see the increase in their October bills.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Environment

Ind. Courts - Federal criminal fraud case persists after defendants' deaths

Updating earlier ILB entries relating to the Gabriele murder-suicide, the AP's Charles Wilson has a story today reporting:

SOUTH BEND, Ind. — The government is pushing ahead with criminal fraud charges against an Indiana medical practice despite the apparent murder-suicide of the ophthalmologist and his wife, who were the main defendants.

Attorneys for Gabriele Eye Institute PC argued that going to court without Dr. Philip and Marcella Gabriele would prevent the business from receiving a fair trial, but a judge ruled that their absence wouldn't irreparably harm the practice's defense against charges of health care fraud.

“While this court understands that the Gabrieles' absence will make it more challenging for GEI to present its defense, their absence won't result in a trial that is fundamentally unfair or violative of GEI's constitutional rights,” U.S. District Judge Robert L. Miller Jr. wrote.

According to the Aug. 18 order, neither Miller nor attorneys for either side were able to find any legal precedent for dropping a case against a corporation upon the deaths of the defendants whose actions prompted the charges. Prosecutors did cite several civil cases in which lawsuits continued in such circumstances, however.

Peter Henning, a visiting professor at the Indiana University School of Law in Indianapolis who teaches a course about white-collar crime, said he also was unaware of any similar situations involving criminal cases. But he likened it to situations in which witnesses disappear or refuse to testify.

“The fact that a witness is unavailable doesn't mean the case against you should be dismissed,” he said.

Henning said GEI might have faced a similar situation if the Gabrieles had taken the stand and invoked their Fifth Amendment rights against self-incrimination. * * *

GEI argued that its right to a fair trial would be hurt because the Gabrieles were the only people alleged to have taken part in fraud and the company couldn't defend itself effectively without them. It also said its defense would be harmed because of the inability to consult with the couple.

But prosecutors strongly disagreed, noting that GEI had been aware of the investigation for about two years and had had time to discuss the case with the Gabrieles.

“The Constitution entitles a defendant to a fair trial but it does not permit a defendant to avoid liability merely because two of the corporation's agents have purposefully absented themselves,” the government said in court documents.

Prosecutors hope to obtain restitution for hundreds of patients.

“GEI has substantial assets including real estate, equipment and accounts receivable that could justly be used to make restitution to the public and private insurers and hundreds of individual patients victimized by the Gabrieles and GEI,” federal prosecutors said in court documents.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Ind Fed D.Ct. Decisions

Law - Still more computer problems: Kentucky county's funds stolen by online hackers [Updated]

Be concerned. When the ILB posted this story July 27th from the Louisville Courier Journal about the theft of $415,000 of Bullitt County Kentucky's funds by Ukrainian hackers, it seemed an isolated incident.

Not so, according to this story today in the Washington Post, reported by Brian Krebs, and headed "European Cyber-Gangs Target Small U.S. Firms, Group Says." Some quotes:

Organized cyber-gangs in Eastern Europe are increasingly preying on small and mid-size companies in the United States, setting off a multimillion-dollar online crime wave that has begun to worry the nation's largest financial institutions.

A task force representing the financial industry sent out an alert Friday outlining the problem and urging its members to implement many of the precautions now used to detect consumer bank and credit card fraud.

"In the past six months, financial institutions, security companies, the media and law enforcement agencies are all reporting a significant increase in funds transfer fraud involving the exploitation of valid banking credentials belonging to small and medium sized businesses," the confidential alert says. The alert was sent to members of the Financial Services Information Sharing and Analysis Center, an industry group created to share data about critical threats to the financial sector. The group is operated and funded by such financial heavyweights as American Express, Bank of America, Citigroup, Fannie Mae and Morgan Stanley.

Because the targets tend to be smaller, the attacks have attracted little of the notoriety that has followed larger-scale breaches at big retailers and government agencies. But the industry group said some companies have suffered hundreds of thousands of dollars or more in losses.

Many have begun to come forward to tell their tales. In July, a school district near Pittsburgh sued to recover $700,000 taken from it. In May, a Texas company was robbed of $1.2 million. An electronics testing firm in Baton Rouge, La., said it was bilked of nearly $100,000.

In many cases, the advisory warned, the scammers infiltrate companies in a similar fashion: They send a targeted e-mail to the company's controller or treasurer, a message that contains either a virus-laden attachment or a link that -- when opened -- surreptitiously installs malicious software designed to steal passwords. Armed with those credentials, the crooks then initiate a series of wire transfers, usually in increments of less than $10,000 to avoid banks' anti-money-laundering reporting requirements. * * *

Businesses do not enjoy the same legal protections as consumers when banking online. Consumers typically have up to 60 days from the receipt of a monthly statement to dispute any unauthorized charges.

In contrast, companies that bank online are regulated under the Uniform Commercial Code, which holds that commercial banking customers have roughly two business days to spot and dispute unauthorized activity if they want to hold out any hope of recovering unauthorized transfers from their accounts.

Avivah Litan, a fraud analyst with Gartner Inc., said few commercial banks have invested in back-end technologies that can detect fraudulent or unusual transaction patterns for businesses.

"The banks spend a lot of money on protecting consumer customers because they owe money if the consumer loses money," Litan said. "But the banks don't spend the same resources on the corporate accounts because they don't have to refund the corporate losses."

[Updated 8-26-09] See also this Washington Post "Security Fix" entry.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to General Law Related

Ind. Decisions - One Indiana 7th Circuit decision today; and an environmental decision of note

In U.S. v. Deloney (ND Ind., Judge Lozano), a 7-page opinion, Judge Bauer writes:

In 2007, Dwight D. Deloney pleaded guilty to possessing with intent to deliver crack cocaine and was sentenced to 87 months’ imprisonment. On appeal, Deloney claims that the sentence was unreasonable; he argues that the district court failed to give meaningful consideration to the statutory sentencing factors and, moreover, should have sentenced him according to the then-impending amendment to the Sentencing Guidelines, which later reduced the penalties for most crack cocaine offenses. We affirm.

The environmental law decision is U.S. v. Apex Oil, out of Illinois, a 12-page opinion by Judge Posner that begins:

Apex Oil Company appeals from the grant of an injunction, at the behest of the Environmental Protection Agency and on the authority of 42 U.S.C. § 6973 (a part of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq.), that requires Apex to clean up a contaminated site in Hartford, Illinois. In a 178-page opinion following a 17-day bench trial, the district judge made findings that millions of gallons of oil, composing a “hydrocarbon plume” trapped not far underground, are contaminating groundwater and emitting fumes that rise to the surface and enter houses in Hartford and in both respects are creating hazards to health and the environment. The judge deemed it Apex’s legal responsibility to abate this nuisance because the plume was created by an oil refinery owned by a corporate predecessor of Apex. Apex challenges these findings and conclusion, but the challenge has no possible merit.

The principal question presented by the appeal is unrelated to the district judge’s findings and conclusions; it is whether the government’s claim to an injunction was discharged in bankruptcy and therefore cannot be renewed in a subsequent lawsuit—this suit.

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

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In In the Matter of the Paternity of J.J. v. Wess A.J. , an 11-page opinion, Judge Mathias writes:

Garnet S. (“Mother”) appeals the Carroll Superior Court's modification of physical custody of her minor child to Wess J. (“Father”). She raises two issues, but we address only the following dispositive issue: whether the trial court abused its discretion when it modified custody because of Mother's relocation without considering all of the factors as required under Indiana Code section 31-17-2.2-1(b). Concluding that the trial court was required to hear evidence on and consider all of the factors enumerated in section 31-17-2.2-1(b), we remand for proceedings consistent with this opinion. * * *

The parties proceeded pro se at the custody hearing, and both failed to present evidence on each of the statutory factors. There is scant evidence in the brief record regarding the parties' respective financial circumstances. Moreover, the parties did not present evidence addressing the hardship and expense involved for Father to exercise parenting time and the feasibility of preserving the relationship between Father and J.J. through suitable parenting time.[3]

Because the record before us does not lead us to the conclusion that the parties or the trial court fully considered the enumerated factors listed in section 31-17-2.2-1(b), we remand this case to the trial court with instructions to conduct another hearing on Father's motion to modify custody and to hear evidence on each of the statutory factors. Absent exigent circumstances, the court shall order the parties to maintain the status quo pending the outcome of a new hearing.
______________
[3] We encourage parties facing issues involving the custody of children to obtain counsel to aid in the litigation of custody disputes. Because the court's order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Destin Quinn Bray v. State of Indiana (NFP)

William Andrews v. State of Indiana (NFP)

Jeremy H. Lee v. State of Indiana (NFP)

James Allen Lee v. State of Indiana (NFP)

Christopher Hampson v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Ind. App.Ct. Decisions

Law - "Fans Cannot Be Involved in Recruiting, but the Line Blurs"

Eric Prisbell and Steve Yanda have an interesting, and very long, story today in the Washington Post about "a growing concern in college basketball." Some quotes:

NCAA rules explicitly state that fans of teams cannot be involved in recruiting, but those regulations blur when the fan wears a media credential. Such credentials, which are issued by whatever entity is running a particular event, designate the bearers as media members, giving them access to prospects that even college coaches don't have during the all-important summer evaluation period. College coaches are not permitted to interact with prospects during the period.

NCAA officials and prominent figures on the summer basketball circuit are alarmed at an increasing number of fans who are creating Web sites, obtaining media credentials and becoming amateur recruiters. Rachel Newman-Baker, the NCAA's agent, gambling and amateurism director, said one of the organization's biggest concerns this summer was who was obtaining media credentials and for what purpose. * * *

That concerns those charged with the enforcement of NCAA recruiting regulations, and with Web addresses easy and inexpensive to obtain, separating legitimate online journalists from fanatics with URLs can be difficult.

"It really has gotten worse," said Bob Gibbons, a national recruiting analyst for 30 years. "We have a whole different set of communications than I am familiar with, and that existed when I first started out, went to a camp, watched the best players and did a report on them. They have taken it to different levels. There are multiple problems that need to be resolved, and I don't think anyone knows the exact solution to it. How do you legislate these people who claim they are media representatives?"

The same reporters had this story August 18th headed "Actions of Third Parties Can Muddy Basketball Recruiting Waters." It begins:
In wooing high school prospects to join their programs, college basketball coaches seek to convince players that they can provide the best place to continue their athletic and academic development. Doing so requires building relationships and trust with players, their parents and often a high school or summer league coach.

Increasingly over the past two decades, however, college coaches have lamented the proliferation of additional participants in the recruiting process. These third parties -- who collectively fall under such labels as "handlers," "middlemen" or "advisers" -- latch on to prospects at young ages and then attempt to broker access to the players in exchange for benefits from college coaches or their schools.

Previously a factor for only the most elite high school prospects, third-party recruiting is becoming much more widespread. LuAnn Humphrey, the NCAA's associate director of enforcement who oversees the organization's basketball focus group, said one of her sector's biggest concerns is that the presence of third-party handlers is trickling down to less-heralded recruits.

Several prominent figures in the summer basketball circuit noted a rise in the population of small-time handlers in recent years.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to General Law Related

Courts - Tips on "Managing the electronic communication revolution in the Indiana courtroom"

Miriam Rozen of the Texas Lawyer reports today on three Texas judges and how they use social network sites to help them do their jobs. This lengthy article is highly recommended by the ILB, and supplements earlier entries. Here are a few snippets.

The first judge,. Judge Susan Criss of Galveston, is a Facebook regular:

[S]he has one page she uses for personal and professional networking purposes. She says she started "friending" lawyers on Facebook to network and possibly to campaign in the future. (Friends generally can see what other friends post on their Facebook pages.) But Criss steers clear of what may be perceived as online ex parte communications by asking lawyers who represent parties in her courtroom to "de-friend" her when a trial commences.

In her six months on Facebook, Criss has read all sorts of surprising comments posted by litigants and lawyers. "I've seen witnesses talk [on Facebook] about a case they are going to testify on. I've seen litigants bragging about anticipating making a lot of money. Those words can be used in front of a jury to cross-examine them," Criss says.

When Criss sees such comments on Facebook, she says she alerts lawyers on both sides. "Lawyers need to talk to their clients from the very beginning to find out what they have put on the Web," she says.

Recently, Criss has devised instructions for jurors that she issues before testimony in a trial begins. At that point, Criss says she tells jurors that they should not post anything online about their courtroom experience other than that they are serving on a jury and when they expect to be done. She says she also asks jurors which social network sites they use to "make sure jurors aren't going to be on Facebook talking about how this or that lawyer is an idiot."

Criss now worries -- with texting and various other forms of electronic communications -- about jurors engaging in such behavior in her courtroom right under her nose. "I also need to make sure they are not texting during the trial when they are sitting in the jury box," she says.

The section about the second, Judge Kathryn Lanan, begins:
For the past two years Lanan, a juvenile court referee who presides over detention and adjudication hearings at the Galveston Juvenile Justice Center in Texas City, has required all juveniles under her court's jurisdiction to become her "friend" on Facebook or MySpace, thereby allowing her to view their postings (and them to view hers) or to fix their online settings so that all members may view the juveniles' pages, not just friends. Lanan, who has been on the bench since 2006, says she prefers that the juveniles "friend" her out of concern for their privacy.
The section re the third judge is shorter, but equally valuable:
Judge Orlinda Naranjo of Travis County's 419th District Court does not have a Facebook or MySpace page. "I don't want to participate in that, thank you," says Naranjo, who has served on the district court for three years and previously as judge of Travis County Court-at-Law No. 2 for 11 years.

But in the family law cases over which she presides, the judge says more attorneys are introducing evidence related to social networking sites and texting. "I see it in discovery requests. I see it in hearings. It is not commonplace yet. But I think it will be," Naranjo says.

In 2006, Texas became one of the first states in the nation to adopt rules governing the admission of evidence in civil proceedings obtained from social networking sites and individuals' pages on such sites, as well as from texting and other electronic communications.

"We are seeing more and more family law cases with allegations about a person being stalked by receiving 25 or 50 texts a day, or complaining about what a spouse has put on Facebook," Naranjo says. Such evidence helps her make decisions, especially in child-custody matters.

For example, during a recent custody case, a father's lawyer introduced paper copies of his ex-wife's craigslist postings as evidence of her involvement in clubs and organizations that could be detrimental to their child, Naranjo says. That evidence contributed to the judge's decision to grant temporary custody to the dad.

In another custody case, Naranjo says, a father had alleged that his daughter posted scantily clad photos of herself on her MySpace page and bragged about using a fake ID for underage drinking. The father alleged that the images illustrated that the mother did not appropriately supervise the child. "The images underscored how this mother didn't have any idea of what was going on in this girl's life. It was a very effective tool," says Naranjo, who granted the father temporary custody.

"I am just amazed what people put out there for the world to see. They are talking about smoking dope and doing drugs. It's discoverable. All of that is so easily discoverable."

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Courts in general

Ind. Law - "How valid is a will? Recent lawsuits raise questions about final wishes"

The South Bend Tribune yesterday had this long story by Alicia Gallegos. From near the end of the story:

The Jeffers case is far from the only will dispute that has landed in court.

A string of recent will battles involving celebrities like Michael Jackson, James Brown and Anna Nicole Smith also have brought the subject of to the forefront.

Locally, there is also the recent case of the late Dr. Philip Gabriele, whose brother-in-law has asked a court to revoke the doctor's will, claiming a depressed Gabriele was being unfairly influenced when he penned the document.

Gabriele and his wife, Marcella, were indicted in federal court for malpractice in June and scheduled to be arraigned the day they were found dead in an apparent murder-suicide.

Gabriele wrote the will just days before he died, giving purported best friend Susan Manuszak 75 percent of his gross estate and his mother 25 percent.

But despite all the publicity, [Alan F. Rothschild, head of the Trust and Estate Division of the American Bar Association] says, contested wills are not typical.

"In my 25 years practicing law, I would say less than one percent of wills are contested," he said.

Local estate expert Richard B. Urda Jr., attorney and president of Urda Professional Corp. in South Bend, agrees. The disputes are "relatively rare," says Urda, who is also a fellow with The American College of Trust and Estate Counsel.

If a will is contested, however, Urda points to three common assertions, including: that proper will procedure was not followed, that the client had decreased mental competency, or that someone exerted "undue influence" during the time of the will.

Childless couples also have a greater risk of having their wills challenged because of the broader mix of possible beneficiaries, Rothschild says.

But both experts detail some ways to prevent a will dispute, and they say it's never too late to implement them.

The tools are used to catch criminals, to provide building safety, and also, in recent times, to ensure will security.

They are videotapes.

Clients have had the ability to have their interactions with attorneys and estate planners recorded for years, Urda says, based on Indiana statute. A person can easily ask to have their will-signing recorded and kept for evidence.

Residents also have the option of a revocable trust, which they can put funds into. Revocable trusts in many states are much more difficult to challenge than a will, according to experts.

As for issues of mental competency, Rothschild believes that attorneys have a certain responsibility to look out for their clients, especially if something doesn't seem right.

"I feel some personal and professional obligation to not proceed to do something if I think the person does not fully understand what I'm doing," Rothschild said.

Asking a client additional questions or speaking further with witnesses might be necessary to be certain a client is cognizant, Rothschild said.

Urda adds that it might be warranted to ask for a family physician's opinion about a client's mental state if concerns arise.

And don't forget to speak up.

If you have plans to give money to a certain charity or to significantly change your will, Rothschild says you need to let family members know.

"I think the risk of (will disputes) increases," says Rothschild. "when it's a surprise to people."

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Indiana Law

Ind. Gov't. - "Sex offenders to pay fee in Floyd County"

Chris Morris reports in the Jeffersonville New & Tribune:

Sex offenders living in Floyd County will now have to pay a registration fee.

The Floyd County Commissioners passed an ordinance last week which calls for sex offenders to pay a $50 registration fee. The money will be used to help pay for new software which will help law officials keep track of sex offenders not only in their area, but throughout the country.

“This system will save a lot of manpower,” Floyd County Sheriff Darrell Mills said. “It’s a very good program and it will be self-supporting.”

The New Albany Police Department and Indiana State Police also will have access to the program. Mills is required to keep track of sex offenders in New Albany and Floyd County.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Indiana Government

Ind. Law - "Attorney William Crabtree II, facing trial, found dead in Dyer home"

Updating earlier ILB entries, the most recent from Dec. 25, 2008, Christin Nance Lazerus reports today in the Gary Post-Tribune:

William Crabtree II, who was set to face tax evasion and fraud charges in federal court on Monday, was found dead in his home earlier that morning.

Crabtree, 46, was pronounced dead at 5:07 a.m. in his Dyer home in the 1300 block of Ballybunion Court in the Briar Ridge subdivision.

Dyer Police alerted the coroner's office at 4:34 a.m.

The Lake County Coroner's office has performed an autopsy, but is not releasing a cause of death, pending a toxicology report.

The coroner's office has ruled out homicide.

Crabtree was charged with stealing more than $2.2 million from his clients between 2006 and 2008.

He allegedly set up a series of forged checks, phony receipts and bank transfers to steal money from clients of his law firm and a title company he owned.

Crabtree's lawyer, Clark Holesinger, filed a motion to continue the trial while final issues are resolved in the case. The jury selection was set to begin at 8:30 a.m. in Judge Rudy Lozano's court, but jurors were sent home.

Holesinger said his heart goes out to Crabtree's family.

Crabtree resigned his law license in December 2008, after the state Supreme Court had suspended his license and were investigating his possible disbarment.

Posted by Marcia Oddi on Tuesday, August 25, 2009
Posted to Indiana Law

Monday, August 24, 2009

Ind. Decisions - Supreme Court posts one late this afternoon

In Alvey v. State, a 7-page, 4-1 opinion, Justice Sullivan writes:

The decisions of the Court of Appeals are conflicting over whether an individual who pleads guilty to an offense is entitled to challenge the denial of a motion to suppress or other pre-trial motion on direct appeal. Precedent limiting the right to appeal following a guilty plea dictates that such an appeal is not permitted. * * *

Based on the weight of the authority, Alvey cannot challenge his convictions in a direct appeal following his guilty plea. To the extent that prior opinions of the Court of Appeals are inconsistent with this conclusion, we disapprove of those decisions. See, e.g., Jones, 866 N.E.2d 339; S.A., 654 N.E.2d 791. A trial court lacks the authority to allow defendants the right to ap-peal the denial of a motion to suppress evidence when a defendant enters a guilty plea, even where a plea agreement maintains that such an appeal is permitted. Lineberry, 747 N.E.2d at 1155. Therefore, despite the plea agreement’s statement to the contrary, Alvey could not plead guilty and challenge the denial of his pre-trial motion to suppress. * * *

Defendants who plead guilty to achieve favorable outcomes forfeit a plethora of substantive claims and procedural rights. Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001). Alvey cannot benefit from both the advantages of pleading guilty and the right to raise allegations of error with respect to pre-trial rulings; these rights are relinquished once defendants decide against facing an uncertain outcome at trial.

Although we hold that a defendant cannot challenge the trial court’s ruling on a motion to suppress following a guilty plea, including those cases where the defendant reserved the right in his or her plea agreement, we find some unfairness to Alvey. Should we simply vacate the plea, he could face a higher sentence. Therefore, Alvey shall have the option of proceeding with the current plea agreement (absent the right to appeal the suppression order). If he does not exercise this option within 90 days of this opinion being certified (unless extended by the trial court), the plea agreement shall be vacated. * * *

Shepard, C.J., and Dickson and Rucker, JJ., concur. Boehm, J., dissents with separate opinion. [that begins] I respectfully dissent. I see no reason why this plea agreement should not be honored ac-cording to its terms, as it would in several states and in federal court under Federal Rule of Crim-inal Procedure 11(a)(2). See 5 Wayne R. LaFave, Criminal Procedure § 21.6(b) (3d ed. 2007).

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 21, 2009

Here is the Clerk's transfer list for the week ending August 21, 2009. It is eight pages long.

(The ILB has not seen a transfer list for the week ending August 14th, despite several inquiries. However, the ILB received notice on August 14th that the case of Anthony Malenchik v. State was granted transfer August 10th. This case would be on the the August 14th list, if there is one. It is not on the new, August 21st list.)

Three transfers were granted last week (Foundations of East Chicago, Whatley, and Jarrels); they were discussed in this August 20th entry and this one from August 21st.

One notable case denied transfer last week was the case involving the Plainfield park sex offender ban - see this ILB entry from August 22nd.

There look to be several other denials of interest on today's 8-page list.

________

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 5 1/2 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, August 24, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Annex Books and New Albany DVD still awaiting decisions; September will mark the 4th anniversaries of their oral arguments before the 7th Circuit

Here is Judge Sarah Evan Barker's August 27, 2004 opinion in Annex Books Inc, et al v. City of Indianapolis. In Annex Books, Judge Barker upheld provisions of an Indianapolis adult business ordinance.

The appeal was argued before a 7th Circuit panel of Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005. An opinion (05-1926) has yet to be issued.

Here is Judge Barker's January 1, 2005 opinion in New Albany DVD v. City of New Albany. "Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance — enacted after New Albany DVD had tried to open — was too broadly written" reported the LCJ at the time.

The appeal was argued before a 7th Circuit panel of Judges Easterbrook, Ripple and Rovner on Sept. 26, 2005. An opinion (05-1286) has yet to be issued.

Yes, the four-year anniversaries are approaching. Anyone have a clue as to when rulings may be expected? Are these cases in line for winning the all-time "cases awaiting decision the longest before the 7th Circuit" award?

For background on these cases, start with this ILB entry from July 4, 2008. See also this ILB entry from Oct. 19, 2004, headed "Cities battle adult stores in courts."

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of Parent-Child Rel. of R.B.; T.B. v. IDCS (NFP)

NFP criminal opinions today (1):

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

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court issues two rulings today in cellphone sales tax challenge

In CINCINNATI SMSA LIMITED PARTNERSHIP and NEW CINGULAR WIRELESS PCS, LLC, as successor to Indiana Cellular, LLC, Kentucky CGSA, LLC, Westel-Indianapolis, LLC, Indiana 8, LLC, ) and Westel-Milwaukee, LLC v. Ind. Dept. Revenue - Judge Fisher today issued two NFP orders, this Order on Respondent's Motion to Strike, and this Order on Petitioners' Motion for Summary Judgment.

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Law - "Facing Foreclosure in Northwest Indiana"

Michael Puente of Chicago Public Radio has this long report today (that you may listen to or read). A few quotes:

A new report by the Mortgage Bankers Association puts Indiana ahead on an unwelcome scale. Fifteen percentage of Indiana homeowners with a mortgage were either behind in payments or were in foreclosure as of June.

Nationally, past due loans, and loans in foreclosure added up to 13 percent. It’s not just Northwest Indiana’s big cities in trouble. Many of the area’s more affluent, outlying communities also are dealing with increasing levels of unemployment and foreclosure. * * *

To those who know Northwest Indiana, the steep rise in foreclosures in 2007 didn’t come as a big surprise in places like Gary, where most incomes are low and unemployment high.

The foreclosure rate is at 16 percent in the city.

But the suburban areas, those bedroom communities where landscaped lawns, tree-line streets, backyard pools and three car garages are more the norm, surely those would be insulated from the foreclosure mess. * * *

BENMAN: You would think people there would have the income to cover it. If they did have an adjustable rate, or some adjustment they could make, both people working, and so on.

Keith Benman’s with the Times of Northwest Indiana.

He led a team of reporters who analyzed lending trends in parts of Crown Point, neighboring Merrillville and Gary, cities in Lake County, east of Chesterton.

The reporting showed numbers and reasons that surprised the researchers.

BENMAN: First assumption there were thought Gary, East Chicago, we’ll find the highest numbers there. But what we actually found were yes, there was a high number in Crown Point, Merrillville. Those were the highest concentrations of subprime lending in the county and also some of the highest concentrations of foreclosures as well.

Before the downturn in the economy , banks and lending institutions were quick to give home and refinancing loans, especially in middle class areas like Crown Point, where bad credit hasn’t been much of an issue and borrowers had more options.

SHARP: Your no doc loans, where you needed a 720 or 780 credit score. So, there you have your more affluent buyers because they were buying the larger homes and the larger priced homes.

That’s Darrolyn Sharp, head of Consumer Credit Counseling of Northwest Indiana.

Sharps says communities like Chesterton, Valparaiso and Crown Point are home to many who obtained mortgages through what she calls creative financing.

SHARP: Those are the kinds of loans now that are being subjected to foreclosure. And, now you’re looking at the industry where the property values have declined, we can’t get the appraised value, so what are we supposed to do.

And, when the foreclosures create empty buildings in more communities that haven’t seen the problem much before, Sharp says that causes particular stress for neighbors.

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to Indiana Law

Ind. Law - "Gerrymandering targeted: Lawmakers take aim at partisan redistricting"

That is the headline to this article today in the Evansville Courier & Press by reporter Eric Bradner. It begins:

INDIANAPOLIS — As state lawmakers gear up for a 2010 midterm election that will determine who wields the mapmaking power in the Indiana General Assembly, a commission meeting in the coming weeks is studying ways to cut partisan politics out of the redistricting process in future years.

Legislators are studying whether to have an independent commission draw district lines or at least assist in the process — an increasingly popular change that 21 other states already have adopted.

It's too late to change the rules for the redistricting set to occur in the Legislature elected in 2010, after the completion of the upcoming U.S. Census. That's because doing so would require amending the Indiana Constitution, which currently requires state lawmakers to draw the district lines. But lawmakers could change the process for future years.

See also this July 31 ILB entry, quoting Art. 4, Sec. 5 of the Indiana Constitution, and linking to a still-available AP story.

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to Indiana Law

Law - Yet more on: Chicago Mayor Dailey privatizes City parking meters

Updating this June 7th ILB entry, Slashdot has an interesting post this morning on the "smart" meters installed in Chicago.

Posted by Marcia Oddi on Monday, August 24, 2009
Posted to General Law Related

Ind. Law - It's the Law: "Death penalty explained in three parts"

Ken Kosky's "It's the Law" column in the NWI Times this week begins a three-part series on the death penalty with an examination of what makes a killer eligible for like in prison or the death penalty (while others who commit murder in Indiana are not eligible under Indiana law to serve more than the 45- to 65-year prison sentence, so with credit for good behavior they can get out of prison in a few decades):

Indiana law states that prosecutors, to seek life in prison or the death penalty, must prove the existence of at least one of these aggravating circumstance:

-The defendant committed the murder by intentionally killing the victim while committing arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity or dealing in cocaine or a narcotic drug.

-The defendant killed by unlawful detonating of an explosive with intent to cause injury or damage.

-The defendant killed by lying in wait.

-The defendant was hired to commit the murder or hired someone to commit the murder.

-The victim was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge or law enforcement officer -- and was killed during duty or because of something he or she did on duty.

-The defendant has been convicted of or committed another murder.

-The defendant was in custody, on parole or on probation due to a felony when the murder occurred.

-The defendant burned, mutilated or tortured the victim while the victim was alive, or dismembered the victim.

-The victim was less than 12 years of age.

-The victim was a victim of any of these offenses for which the defendant was convicted: battery, kidnapping, criminal confinement and sex crimes.

-The murder was done to prevent a witness from testifying.

-The murder was committed by firing a gun from a vehicle or into an inhabited dwelling.

-The victim was pregnant and a viable fetus was killed.

There are mitigating circumstances that may work in the defendant's favor, such as his age (younger than 18), mental state or lack of criminal record. Other mitigating factors include the fact that the defendant was an accomplice in a murder and had a minor role, the defendant was acting under the domination of another person or the victim participated or consented to the defendant's conduct.

Posted by Marcia Oddi on Monday, August 24, 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 8/24/09):

Next week's oral arguments before the Supreme Court (week of 8/31/09):

Next Thursday, September 3rd

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 8/24/09):

Next week's oral arguments before the Court of Appeals (week of 8/31/09):

Next Tuesday, September 1st

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, August 24, 2009
Posted to Upcoming Oral Arguments

Sunday, August 23, 2009

Courts - "Federal Judges Given Guidance on Web Sources"

Mary Pat Gallagher's story in the New Jersey Law Journal, dated August 21st, included these quotes:

Judges, like the rest of us, can be lured by the treasure trove of information on all kinds of topics available on the Web. Now federal judges have a set of guidelines to help them decide when and how to use Internet sources.

The Judicial Conference of the United States has sent the chief judge in every federal district five pages of "suggested practices" on the subject.

The guidelines say judges should apply the same criteria to Internet sources as for traditional media -- accuracy, scope of coverage, objectivity, timeliness, authority and verifiability.

Among the questions they should ask: whether the source is peer-reviewed; who publishes it and why; whether the publisher uses editors and fact-checkers; whether the information is reliable and up-to-date; and the sources cited, if any. * * *

The ephemeral nature of the Internet was a prime concern for the guideline writers. "Unlike printed authority, Internet information is often not maintained at a permanent location, and a cited webpage can be changed or deleted at any time," wrote Judicial Conference Secretary Jim Duff in his accompanying cover letter to chief judges on May 22.

"Obviously, this has significant implications for the reliability of citations in court opinions."

Consequently, before citing an Internet page, a judge should take into account whether the information is "stable and likely to remain accessible" via the citation used.

A recent state appeals court decision highlighted the risk of relying on a malleable Web source. In Palisades Collection v. Graubard, A-1338-07, decided April 17, the Appellate Division threw out a judgment in a credit-card collection case because the trial judge took judicial notice of information from Wikipedia that helped trace ownership of the debt in order to establish the plaintiff's standing to sue. Noting that anyone can edit Wikipedia, including a litigant, the appeals court termed it "inherently unreliable."

The federal guidelines recommend capturing a page and attaching it to the opinion if there is reason to believe it will be changed or altered. A captured page should be converted to PDF format with some notation of the date, such as a watermark.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Courts in general

Law - "Illinois Gov. Pat Quinn signs overhaul of state's open records law; Attorney general's office gains powers, but often-abused exemptions remain"

From a report today in the Chicago Tribune by Monique Garcia:

Gov. Pat Quinn signed an overhaul of the state's open records act into law on Monday, saying the "landmark" changes would make government more transparent following the arrest and ouster of predecessor Rod Blagojevich.

Backed by Illinois Atty. Gen. Lisa Madigan, the law will give her office sweeping new powers to interpret what records are public and settle disputes over the Freedom of Information Act. The changes, which take effect Jan. 1, included shortening the time government bodies have to respond to records requests and imposing fines of up to $5,000 for agencies that wrongfully deny records.

"I think anybody in Illinois who pays taxes should be very happy that our government is going to become more open to the public," Quinn said at a signing ceremony, where he was joined by Madigan and several members of the blue-ribbon ethics panel he formed after Blagojevich's arrest late last year.

But there is still broad language in the act that leaves open the door to oft-abused exemptions for requests that are "unduly burdensome" and "a clearly unwarranted invasion of personal privacy." Also intact is another exemption that lets public officials keep secret "preliminary drafts, notes, recommendations memorandum and other records in which opinions are expressed, or policies or actions are formulated."

The exemption has drawn fire from critics who say these are the records most needed by citizens to question and evaluate the actions of their public servants.

Under the new law, public agencies must notify the attorney general's office when they assert the privacy and draft exemptions so the office can review whether that is appropriate. Before the new law, the public was left with little option but to sue the government agency that refused a request.

This part of the story points to differences between the power of the Illinois Governor when acting on legislation, and that of the Indiana Governor:
Quinn's signature came after weeks of intense lobbying by supporters and critics.

The Illinois State's Attorneys Association sent Quinn a letter asking that he use his amendatory veto power to rewrite the bill and remove provisions they said could result in the improper release of victim and informant information. The Illinois Municipal League also asked Quinn to make changes before signing the bill, saying the new provisions would make responding to information requests more complex and place an undue burden on local governments.

"This is a lawyer's dream and a layman's nightmare," Municipal League General Counsel Roger Huebner said Monday. "When will we get an act that serves the public? These changes don't."

But the Illinois Press Association, which represents many of the state's newspapers, urged Quinn to sign the measure, saying it was a welcome improvement.

In a written message to legislators, Quinn acknowledged the concerns raised by law-enforcement officials and local governments and asked that "all parties impacted by this bill work collegially in the coming months to craft consensus legislation that addresses the significant, lingering concerns."

On August 18th the Tribune published this article headed "Illinois' new open records law at a glance."

An editorial Aug. 18th in the State Journal-Register:

It should be a new day in Illinois when it comes to public records come Jan. 1.

Ignoring complaints by the Illinois Municipal League and the Illinois State’s Attorneys Association, Gov. Pat Quinn left the bill intact Monday, signing it without making changes recommended by the two associations that would have gutted the bill.

The governor, who often has confounded the Capitol by switching positions, stuck to his principles on this issue and should be commended. Attorney General Lisa Madigan, who was at the bill signing with Quinn, once a potential political rival, also deserves kudos for her spearheading of this effort.

When the modified law goes into effect at the beginning of next year, the public will be to able to get records faster and without the kind of bureaucratic wrangling that has characterized what’s on the books today.

At least that is the new law’s aim. Given the objections of the Illinois Municipal League (whose first vice president is Springfield Mayor Tim Davlin) to the law’s provisions, we are concerned that local governments will try to gum up the process by often kicking basic requests to the attorney general’s new public access counselor.

That person’s job will be to mediate and decide disputes over what is and is not public. He or she will have subpoena power and issue decisions that could only be overturned by a judge.

One of the IML’s objections to the law is that the public access counselor will be overwhelmed. Its recommendation was that the position simply be eliminated and the status quo, in which citizens have to ante up for a lawyer to enforce the law, be maintained.

In our view, the law is clear. The public access counselor should seldom have much to do. The overwhelming majority of records will now be public.

That includes:

* Documents that probably will give public bodies heartburn when they are released (disciplinary records of employees accused of misconduct).

* Documents that seem noncontroversial but that some local governments have tried to withhold in the past (building permits, which the city of Springfield once laughably claimed were exempt from public view).

The public access counselor’s biggest potential workload will come because of a provision requiring he or she to review instances in which governments cite privacy as a reason for denying a records request.

In our experience, privacy is cited most often to hide records related to potential employee misconduct. But the new law does not include a personnel record exemption, and it makes clear that releasing records related to the public duties of public employees is not an invasion of privacy.

If Illinois governments get the message that the days of concealing records and putting citizens trying to look behind the curtain through a bureaucratic gauntlet are over, this new law will work well.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to General Law Related

Ind. Courts - "DNA backlogs increase in state" [Updated]

Jon Murray reports today in this story in the Indianapolis Star on DNA backlogs. A few months back, Murray reported on legislation that might have increased the backlogs even more. Here are the links: Feb. 17, 2009 - "Police want to add DNA from more people to database" plus follow-ups from April 20th and May 7th.

From today's story:

Waiting times for DNA test results that could prove crucial in criminal cases are growing in Marion County and across Indiana as crime labs grapple with an avalanche of evidence.

Rising backlogs -- despite years of efforts to whittle them down -- haven't set off alarm bells yet, but Marion County has seen a handful of trials delayed. Prosecutors are waiting sometimes months longer for DNA results that could cinch a guilty plea or provide seemingly rock-solid proof to a jury.

Leaders at the state's two government-run crime labs say they have a handle on the problem and are hiring new analysts, investing in automation and leaning on private labs to take outsourced cases. * * *

The Indiana State Police's Laboratory Division, which handles testing for all other counties at its main lab in Indianapolis and three regional labs, routinely hit the six-week turnaround target a year ago. More recently, said Paul Misner, the biology section supervisor, turnaround for some cases has grown by several weeks.

The story at many labs across the country is the same, or worse.

Despite Congress' approval of nearly $500 million in grants since 2004 to help clear backlogs, at least 350,000 samples from murder and rape cases still await testing by federal, state or local labs, according to ProPublica, a nonprofit investigative reporting newsroom.

New laws have expanded a national database by mandating collection of DNA from convicts or even those arrested in some states, overloading many labs.

Indiana collects DNA from about 2,000 felony convicts each month, but the State Police outsources the job to Strand Analytical Laboratories in Indianapolis, easing the burden. A bill to expand collection to those arrested on felonies failed in this year's General Assembly because of cost concerns.

The larger problem -- or opportunity, as Medler sees it -- is that improvements in technology have made smaller biological samples from crime scenes potentially useful.

Often associated with sexual assaults or homicides, DNA evidence is now a growing factor in other investigations. Indianapolis police began an initiative two years ago to scour burglarized homes and businesses for potential DNA samples; using "touch DNA," analysts might be able to identify skin cells left behind on items a burglar touched.

Such work led to 11 hits in the offender database last year and six this year, Medler said, giving burglary detectives fresh leads in an area where few cases get solved.

Medler cited figures showing a large chunk of the current DNA backlog -- which stands at 136 cases in progress or waiting to start -- involves material gathered in burglary and firearms cases using recent DNA advances.

[Updated 8/25/09] See also this earlier ILB entry, from July 6th, quoting a South Bend Tribune story: "Backlog of cases extends toxicology test results: Toxicology tests often take weeks, months to complete."

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Indiana Courts | Indiana Law

Ind. Gov't. - "Problem of junked cars in Sellersburg: Cars on blocks could cost the owner plenty"

Braden Lammers has this report in the New Albany News & Tribune. Some quotes:

The town of Sellersburg is cracking down on junked cars left in residents’ yards.

An amendment to an ordinance — that has been on the books in Sellersburg for 10 years — passed in January, applies restrictions to inoperable vehicles being left in yards.

“The vehicles have to be licensed, insured and running,” said Brian Meyer, president of Sellersburg’s Town Council.

The ordinance — 2009-002 — also is a reflection of Indiana state law, providing two days to remove a vehicle abandoned not on a resident’s personal property. If the vehicle is on the resident’s private property and inoperable, the provision allows for 20 days before a citation is issued.

“We were getting a lot of junked cars sitting around and that’s definitely not what we want to portray as a town,” Meyer said. * * *

Maximum penalties for abandoned vehicles included the cost for removal and storage of the vehicle, a fine not to exceed $2,500 — under general penalties — and possible auctioning of the vehicle if it is not claimed by the owner.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - More on: Former Indiana attorney admits to 24 bank robberies

Updating this ILB entry from July 22, 2006, Stephanie Gattman has this very long story today in the Elkhart Truth. Some quotes:

As a U.S. Marine, Clifton Bruce Davidson Jr. pledged to be "Always Faithful."

As an officer with the Elkhart Police Department from 1988 to 1995, he was trained to "Protect and Serve."

When he passed the Indiana bar exam, he was expected to uphold the highest ethical standards and to represent his clients' interests before his own.

But on a sunny, 70-degree day in November 2003, Davidson walked into a bank in the northern suburbs of Cincinnati, gave the teller a note and demanded money. It was about 3 in the afternoon.

The former Marine, police officer and attorney -- the man who was trained to uphold and defend the law -- robbed the first of 38 banks. * * *

Davidson started law school at the Indiana University Indianapolis School of Law in 1997, graduating in 2000.

He became an attorney because he saw how the system worked in his case with the city. "I thought I could make a difference," he said. "But it didn't work out that way."

He practiced plaintiff employment law in the Indianapolis area.

He was miserable, he said, and consumed by the pressure. "It got to be where I'd wake up in the middle of the night with the bed soaked with sweat. My doctor told me it was anxiety attacks. It was hell."

Davidson gave up and walked away from his law practice.

The depression was so bad that he couldn't even muster enough energy to transfer his cases to another attorney. "When you are so depressed that you are struggling to get yourself up off a couch, it's 20 times harder to transfer a hundred complicated legal cases. Many times it can't be done," Davidson said.

In 2004, Davidson was disbarred for six counts of attorney misconduct by the Indiana Supreme Court Disciplinary Commission for accepting retainer and filing fees from clients, taking little or no action on their behalf and not responding to inquiries about their cases. He failed to answer or appear for the complaint.

He also filed for personal and business Chapter 7 bankruptcy in federal court in 2004 and had several financial-related cases filed against him in Hamilton and Marion county courts. The bankruptcy was discharged in March 2005.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Indiana Courts

Environment - "Illinois pollution enforcement hampered by politics"

Really?

Michael Hawthorne has this lengthy story today in the Chicago Tribune. A quote:

What appeared to be an obvious violation of state environmental laws became entangled in one of former Gov. Rod Blagojevich's political feuds, delaying action for months. Dozens of other cases against polluters languished as well, largely because Blagojevich and his top aides refused to refer them to his archnemesis, Atty. Gen. Lisa Madigan, a Tribune investigation found.

The bitter dispute still reverberates through state government today, eight months after Blagojevich was arrested on federal corruption charges and then impeached and removed from office. Nearly 19 months after it was discovered, the Schiller Park site still hasn't been cleaned up, and several other older cases are moving through an enforcement system that Gov. Pat Quinn and Madigan only recently have begun to repair. * * *

There are signs the frosty relationship between environmental enforcers is thawing under Quinn, who at one point faced the prospect of a primary challenge from Madigan next year before she decided to run for re-election as attorney general.

The state EPA has sent about 18 cases a month to the attorney general since May. Lawsuits in the works include one against a railroad involved in a train derailment that spilled thousands of gallons of ethanol into a Rockford-area creek, and two others involving Downstate hog farms that dumped liquid manure into nearby streams.

Anchor Metal Finishing also was referred to the attorney general for enforcement, more than a year after EPA inspectors found leaky barrels of toxic waste at the Schiller Park site. Company officials have not responded to the lawsuit and could not be reached for comment last week.

Meanwhile, the state has called in the U.S. EPA to oversee the cleanup.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Environment

Ind. Gov't. - "Defending city police exhausts legal fund"

Two related stories today from the Fort Wayne Journal Gazette.

Some quotes from the first, by Benjamin Lanka:

Legal costs of defending the city have grown rapidly in the past few years.

The cost of defense has risen from $720,558 in 2006 to more than $1.2 million last year, far exceeding its $700,000 budget, according to data provided by the city controller’s office.

In total, the city has spent nearly $6 million in legal defense costs and settlements since 2006.

Those rising costs, most often the result of lawsuits against the police department, forced the City Council this month to put $1.2 million from its cash reserves into the city’s liability account. The account was $273,963 in the red before the infusion of cash. Through July, the city had spent $651,987 on legal defense costs this year. This left the city with $12.5 million in reserves just weeks before it begins debating the 2010 budget.

Councilman Mitch Harper, R-4th, was the lone member to vote against allocating the extra $1.2 million. He said as the council prepares for its budget debate, it needs to look at numerous expenses including those paid to defend the city in court.

“The council has not taken an overall examination of legal fees that Fort Wayne pays,” he said.

The city’s settlement history, however, is quite good, according to James Stergiou, chairman and CEO of SGRISK actuary consultants. The company provides services to the city. Because the city is self-insured, it pays out of pocket for its legal expenses and settlements.

The city has had low losses compared with other communities – Stergiou estimated it was in the top 25 percent in the country. This has saved a minimum of $5 million over the past 20 years from not buying private liability insurance. He noted being self-insured also allows the city to invest the money it would otherwise pay on premiums.

He added the city would still be responsible for its legal costs with a private insurer. * * *

The legal and settlement totals include claims for auto accidents, unemployment insurance, police actions and others. The claims against city police, however, account for the majority of legal work. According to city statistics, police liability claims account for nearly 64 percent of all the money spent on attorneys defending suits. The police account for less than 30 percent of the settlements paid by the city since 2006, though.

Police Chief Rusty York said the costs are cyclical, noting there have been years when the costs have been low. But he said the nature of the police business leads to situations when force must be used, and especially police shootings – regardless of legitimacy – result in lawsuits. * * *

A few major recent police cases have cost the city nearly $1 million.

Some quotes from the seond story, headed "Suing sheriff no road to riches," reported by Rebecca S. Green:
In October 2006, an Allen County Jail inmate, Earlie Berry, sued then-Sheriff Jim Herman and then-correctional officer Doug Keller in Allen Superior Court, claiming he had been the victim of excessive force.

Berry, in jail on a misdemeanor charge, claimed that in August 2005 Keller struck him for no reason in the chest, “knocking the air out of him” and “causing pain for several days,” according to court documents. * * *

In late July, nearly three years later, Berry’s case finally went to trial, with the six-person jury deciding for the sheriff’s department and its officers. After the trial, Berry was arrested as he left the Courthouse on an outstanding warrant for failing to pay court costs in the criminal case.

And to add insult to the alleged injury, attorney John Feighner, who represents the sheriff’s department, asked Allen Superior Court Judge Stanley Levine to order Berry to pay the county’s legal bills for much of the trial.

During the trial, and with permission of the court, Feighner approached Berry and said that if he did not drop the lawsuit, which the county deemed frivolous, then Feighner would seek to recover the money the county was spending from that moment on, according to court documents.

Berry went ahead, the jury agreed with the county, and now Berry might end up owing Keller, now an Allen County Sheriff’s officer, and the sheriff’s department $1,425, according to court documents.

Feighner is quick to say that not all lawsuits filed against the sheriff’s department are frivolous, but he believes Berry’s did and decided to get the county’s and Keller’s money back.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Indiana Courts | Indiana Government

Ind. Courts - More on: Channel 6 finds public defender appointed upon request, with no effort at determining financial need

Updating this ILB entry from Thursday, an ILB reader send this August 22nd story from the Anchorage Daily News. The story, by Megan Holland, is headlined: "Officer gets public defender despite $100,000-plus salary - SEX ASSAULT CHARGES: Judge says 13-year veteran can't afford defense":

An Anchorage police officer accused of multiple counts of sexual assault will get a public defender despite his $100,000-a-year salary, at least for now, a Superior Court judge ruled Friday.

"The charges in this case are equivalent to homicide charges," Judge Phillip Volland said after being asked by the prosecution to revisit his initial granting of public defender services. "This would be a very expensive case."

Eligibility for a public defender generally requires the defendant to be "an indigent person." While suspended police officer Anthony Rollins, a decorated, 13-year-veteran of the department, may not fit the normal profile, he does not have the money to hire a lawyer to defend him in this kind of case, Volland said.

Prosecutors had objected to Rollins being granted a state paid-for defense attorney because of his police income and properties he and his wife own around Anchorage.

Public records show Rollins was paid $142,892 by the Anchorage police department in 2008; and up until his mid-July arrest, the department paid Rollins $78,688. His wife, police Sgt. Denise Rollins, also made good money. Their combined income for the past five and a half years was $1,168,602, according to municipal records.

Although Rollins has above-average income, he does not appear to have sufficient assets or cash to pay for a long ,complicated case, the judge said.

Rollins and his wife have two sons in college and even though, on paper, they have $1.1 million worth of property, they owe more on their two rental properties than what they are worth.

Their family home already has two liens on it. And they are limited out on credit cards, Volland said after reviewing Rollins' financial affidavit. Volland said he also looked at Rollins' household expenses and determined they were reasonable. "It's likely the family is already facing economic pressures," he said, because of the loss of Rollins' income after his arrest.

Rollins, 41, is accused of sexually assaulting six women over a span of three years. Some of the 20 charges against him say he abused his official position to commit the crimes. He has pleaded not guilty to all the charges.

Alaska private defense attorneys vary in hourly rates, but charges of $300 to $500 an hour for their services in a serious criminal case is not unusual, local lawyers say.

Volland said he doubted there's a lawyer in Anchorage who would take Rollins' case without a $100,000 deposit in cash or property; if he were in private practice, he certainly wouldn't.

The case is probably going to involve a lot of pre-trial legal battles, including a request to move the trial to another city because of the publicity in Anchorage. If the trial moves, Rollins would have to pay for his lawyer to live in another city for the duration. And it will likely be a three to four week trial-- hundreds of hours of an attorney's time.

Because Rollins is a member of the police union, his defense attorney, Office of Public Advocacy attorney Sue Carney, asked if the union would cover the cost of a private lawyer. Volland said he hadn't considered that and will inquire, but for now would grant Rollins a public defender.

Public defenders are not always free. Under some circumstances, Rollins could be billed for up to $5,000.

Posted by Marcia Oddi on Sunday, August 23, 2009
Posted to Courts in general | Indiana Courts

Saturday, August 22, 2009

Law - "Where’s the Rulebook for Sex Verification? "

The Sports Section of today's NY Times has a long, fascinating article by Alice Dreger, professor of clinical medical humanities and bioethics in the Feinberg School of Medicine at Northwestern University. How are a few snippits:

Many think you can simply look at a person’s “sex chromosomes.” If the person has XY chromosomes, you declare him a man. If XX, she’s a woman. Right?

Wrong. A little biology: On the Y chromosome, a gene called SRY usually makes a fetus grow as a male. It turns out, though, that SRY can show up on an X, turning an XX fetus essentially male. And if the SRY gene does not work on the Y, the fetus develops essentially female.

Even an XY fetus with a functioning SRY can essentially develop female. In the case of Androgen Insensitivity Syndrome, the ability of cells to “hear” the masculinizing hormones known as androgens is lacking. That means the genitals and the rest of the external body look female-typical, except that these women lack body hair (which depends on androgen-sensitivity).

Posted by Marcia Oddi on Saturday, August 22, 2009
Posted to General Law Related

Ind. Courts - "Budget battles not over in St. Joseph County"

Some quotes from about half-way through a story dated Aug. 20th by Troy Kehoe of WSBT.com, South Bend:

Juvenile Justice Center administrator and Probate Court Judge Peter Nemeth is preparing too, submitting a budget nearly identical to last year's — that keeps cuts implemented over the last two years intact.

"We have cut about 20% over the last two years," he said.

But, the JJC/Probate Court budget does include some increases in the form of pay raises for eight of his employees — issued earlier this year despite the County Council's objection.

Nemeth called the Council's "refusal to permit raises, unjust, unfair and discriminatory" at the time. Under Indiana law, judges can "mandate" the amount of money they need to "operate their courts sufficiently." But, ultimately, their budgets are set by the County Council, and approved by County Commissioners.

Nemeth's judicial mandate would change that; boosting Probate Court employees' pay by a total of $60,208. Including fringe benefit costs, Nemeth estimates the total cost to be around $79,000.

The County Council refused to adhere to the mandate, and the matter will go before a specially appointed judge next month.

Nemeth says even if he loses, he won't cut.

"I don't think that's going to happen. But, if it does, I'll have to take another look and determine what to do. Obviously, it's a new budget year. Might have to try a different approach. Might have to issue another mandate," Nemeth said.

And, if he's asked to make additional cuts in that case?

"It would be virtually impossible to do without shutting things down," Nemeth said.

Posted by Marcia Oddi on Saturday, August 22, 2009
Posted to Indiana Courts | Indiana Government

Environment - More on: IDEM meetings introduce new antidegradation rules

Updating this ILB entry from August 12th, Gitte Laasby of the Gary Post-Tribune reported August 20th:

PORTAGE -- Indiana's proposed pollution rules won't address pollutants some say could have a major impact on water quality in the state's lakes and streams: phosphorus and nitrogen.

Technical experts and top officials from the Indiana Department of Environmental Management acknowledged that at a 21/2-hour public meeting in Portage on Wednesday.

"I don't think these rules are acceptable because they're going to exempt very important pollutants that will have a demonstrable effect on waters in Indiana," said Albert Ettinger, senior attorney with the Environmental Law & Policy Center.

The rules only regulate pollutants for which the state has established how much of a concentration will do damage on the environment, for instance fish. The state hasn't determined what that amount is for nitrogen and phosphorus, which means the new rules to protect water quality won't apply, explained Brad Klein, attorney with the Environmental Law & Policy Center.

"They're not toxic for fish, but they cause algal blooms that can lead to elimination of oxygen in the water," he said.

Martha Clark Mettler, deputy assistant commissioner in IDEM's Office of Water Quality, said the rule wasn't deliberately written to exclude nitrogen and phosphorus, but that IDEM would consider changing the rule.

"I don't think that was our intent, but that's why we're out talking to people because that's what we want to know," she said.

The meeting was intended to inform people about the rule and to answer questions from the about 50 attendees who eagerly fired away.

The rules were revised in response to an independent report that concluded that the unclear rule was at the heart of the controversy that arose when IDEM allowed BP to increase discharges into Lake Michigan 2007.

Several attendees raised concerns about how IDEM would weigh factors like health versus jobs when it determines whether a facility can discharge more pollution.

"All the factors are listed, but it's not clear how they're valued and weighed to make a decision," said Lin Kaatz Chary of Gary. "What kind of community input is there? What data is used to support those decisions? I find that very squishy."

She said community members often feel they express their opinions but that a company's interests weigh more heavily. IDEM's Assistant Commissioner for the Office of Water Quality, Bruno Pigott, said the state tries to balance interests of industry and residents, but that the public has improved opportunities for input under the new rule.

Some asked whether the Grand Calumet River would get additional protection because it flows into Lake Michigan. IDEM officials said that would depend where the pollution was discharged and whether it would make it all the way to Lake Michigan.

IDEM has three more public meetings before it takes public comments and finalizes the rule. Indiana's 11-member Water Pollution Control Board still has to approve the rule as does the U.S. Environmental Protection Agency.

Today the Fort Wayne Journal Gazette has an editorial about the public meetings:
Indiana’s recent efforts to revamp its clean water rules are welcome. But they apparently fall short of what environmental advocates want and what Hoosiers should demand.

In 2007, state regulators nearly ignited a civil war with Illinois by imprudently granting the BP refinery on Lake Michigan the go-ahead to increase the pollution it discharges dangerously close to where Chicago residents get their drinking water. After prolonged public outrage, plenty of bad press and an independent study from an Indiana University professor showing that state rules governing water pollution permits are flawed, the Indiana Department of Environmental Management decided to change the rules.

The proposed rules define under what circumstances a business can increase the pollution it discharges into Indiana lakes, rivers and streams.

IDEM is conducting a series of meetings about the proposed changes. But late notice about the meetings may keep people from attending. The first meeting was convened in Portage on Wednesday; the news release announcing the meetings did not appear on the department’s Web site until Tuesday.

The closest meeting for Fort Wayne residents will be on Tuesday in Garrett. A third meeting will be in Seymour. It’s unclear why these locations – away from major population centers – were chosen.

Environmentalists think the state’s revised rules fail to protect Indiana water and will lead to more pollution.

In a news release, Rae Schnapp, water policy director for the Hoosier Environmental Council, said: “Indiana has ignored this federal requirement for years, and is now proposing to implement a rule fraught with loopholes.

“Environmentalists have submitted comments, but many important suggestions have been ignored.”

Environmental advocacy groups, including the Hoosier Environmental Council, The Sierra Club’s Hoosier Chapter, and the Alliance for Great Lakes Water Quality, want a good turnout at the meetings because the meetings will give residents an opportunity to learn more about the proposed changes as well as the steps residents can take if they don’t like the state regulator’s proposal.

For more information, here is IDEM's antidegradation page.

Posted by Marcia Oddi on Saturday, August 22, 2009
Posted to Environment

Ind. Courts - "Priest abuse case hinges on "repressed" memories"

The ILB had this most recent entry Jan. 25th on former Catholic priest Harry Monroe. Now a trial is taking place before Judge David Dryer of Marion Superior Court, Civil 10. Yesterday the Indianapolis Star reporter Robert King wrote in a Star blog:

John Doe RG, as he is known in court papers, doesn't have much room for God in his life these days. It wasn't always so.

As an altar boy at St. Andrew Catholic Church in Indianapolis in the 1970s, he and his family were deeply involved in the church. But John Doe RG lost that somewhere along the way. For a long time he didn't now where. But he says it found out the reason why in 2003, when -- during a session with his therapist -- he began recovering memories about sexual abuse he suffered at the hands of priest Harry Monroe.

Today, in a sterile courtroom in Indianapolis, John Doe RG spent two hours listening to legal arguments about whether abuse that is more than 30-years-old can be addressed in a lawsuit -- long after the normal statute of limitations have expired -- because the victim's memories had been "repressed" until recently.

Today's legal debate focused squarely on this question of whether some trauma victims, such as those sexually victimized by priests, really can lose access to their memories of the abuse for long periods of time, and then recover them later, as John Doe RG says happened to him.

Judge David Dreyer, who is hearing the case, said he will need at least a month to make a decision. But the case can't go forward unless he allows testimony about repressed memory to be heard -- it is the only way John Doe RG can comply with the statute of limitations.

Dreyer asked the lawyers to provide him more information about the relationship between the term "dissociative amnesia," which is listed in the psychiatrist's desk reference, and "repressed memory," which is not.

In the past, Indiana courts have allowed cases based on repressed memories to go forward. But Archdiocese of Indianapolis attorney Jay Mercer argued the concept of "repressed memory" is "psychiatric folklore," in the words of critics he cited. He said many experts believe that memories never really go away, but that trauma victims either choose to forget or they simply haven't been reminded of it. In those and other instances, Mercer argued, that shouldn't justify any leeway when it comes to the statute of limitations.

Attorney Pat Noaker, arguing for John Doe RG, said the terms repressed memory and dissociative amnesia are essentially interchangeable. And he argued that it wasn't necessary for Dreyer to decide the validity of repressed memory testimony because the Indiana Supreme Court had twice deemed it valid.

Today the Star has this brief, unsigned article:
The lawyer representing a man who claims to have been abused by a priest 33 years ago needs to sort out psychiatric terminology he's banking on as a reason to allow a suit long after the normal statute of limitations expired, Judge David Dreyer said Friday.

The plaintiff, named in papers as John Doe RG, is a former altar boy at St. Andrew's Catholic Church. He said memories of his abuse by former priest Harry Monroe first emerged in 2003.
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Attorney Pat Noaker contends the Indiana Supreme Court has already decided that old cases can go forward when brought after a victim recovers a long "repressed memory" of abuse.

But Jay Mercer, the attorney for the Archdiocese of Indianapolis, said there is debate among experts about the scientific validity of repressed memories.

Noaker said the term "dissociative amnesia," which appears in the psychiatrist's desk reference, is essentially the same as "repressed memory," which does not. Mercer argues they are different.

The issue is important to Dreyer, who said acceptance in the desk reference would be one simple way of deciding the credibility of the science and whether to allow testimony.

Dreyer gave both sides three weeks to present written arguments on the point. He expects to decide within a month or so whether the case can go to trial.

Posted by Marcia Oddi on Saturday, August 22, 2009
Posted to Indiana Courts

Ind. Decisions - More on: "Indiana court lets sex offender park ban stand"

Updating yesterday's ILB entry, Josh Duke has this report in today's Indianapolis Star. Some quotes:

An Indiana Supreme Court decision allowing Plainfield to bar sex offenders from town parks may clear the way for other communities to enact similar laws.

The court refused by a 4-1 vote the American Civil Liberties Union's request to hear its case against the Hendricks County town, filed on behalf of a man from Marion County. The decision let stand without comment a state Court of Appeals ruling last September supporting Plainfield's ordinance. * * *

The ACLU appealed the Indiana Court of Appeals ruling on behalf of the Marion County man hoping to clarify the court's stand on such local ordinances.

The Marion County man began pursuing the lawsuit against Plainfield in 2005 after Plainfield police told him not to return to the town's recreation center. He had visited there with his young son.

The man was allowed to remain anonymous by the court system throughout the lawsuit. His name and criminal history are on the public registry of sex offenders. He has completed a prison term and probation.

ACLU attorney Ken Falk couldn't be reached for comment Friday but previously said the ACLU objected because it "retroactively punishes citizens who have paid for their crimes and have a right to go to a public park."

After Thursday's Supreme Court decision not to hear the case, Falk told the Associated Press the group might now drop a lawsuit over a similar ordinance in Greenwood.

Greenwood City Attorney Shawna Koons, who drafted the city's ordinance, said she would have preferred the Supreme Court rule on the case against Plainfield. Without that ruling, the issue remains open in Indiana to decisions on a case-by-case basis, she said.

Matt Thacker's report in the Jeffersonville News & Tribune today is headed "Dowdell attorney believes Supreme Court decision leaves ‘inconsistencies’." Here is the story:
The Indiana Supreme Court’s decision Friday to not overturn an ordinance banning registered sex offenders from parks in Plainfield could affect Jeffersonville’s ordinance.

In Jeffersonville’s case, Eric Dowdell’s petitions to watch his son play baseball in Jeffersonville parks were denied. The Indiana Court of Appeals ruled that Dowdell should be allowed in the parks because the city’s ordinance was passed after Dowdell was charged, convicted and served his sentence for a sex offense. He also was no longer on the sex-offender registry.

Larry Wilder, the attorney representing the city council in the Dowdell case, said he had expected the Supreme Court would rule on Jeffersonville’s case at the same time as the Plainfield case.

The Supreme Court has not yet made a decision whether to hear Jeffersonville’s case.

Wilder was clearly stunned when informed of the Supreme Court’s decision on Plainfield, repeatedly saying, “Wow.” The court declined to hear the case by a 4-1 vote, letting stand without comment a state Court of Appeals ruling upholding the 2002 ordinance.

“It seems at this point that there are two inconsistent decisions in the Indiana Court of Appeals,” Wilder said.

The Court of Appeals had decided that Plainfield’s ordinance — which bans convicted sex offenders from parks for life — is not unconstitutional. Jeffersonville’s ordinance allows offenders to petition to be allowed back in the parks once they no longer have to register.

While he hopes the Supreme Court will reverse the Court of Appeals decision in the Dowdell case, Wilder added that the Supreme Court can choose to leave two inconsistencies in Court of Appeals decisions and let the law evolve.

If the Supreme Court decides not to hear the Jeffersonville case, the city would have no other options to appeal the Dowdell decision, Wilder said.

Here is a list of ILB entries mentioning the Dowell decision.

Posted by Marcia Oddi on Saturday, August 22, 2009
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Friday, August 21, 2009

Ind. Decisions - "Indiana court lets sex offender park ban stand"

Although the ILB has yet to receive, and thus post, a Clerk's Transfer List from last week or this week, this story was posted this afternoon from the AP:

The Indiana Supreme Court has declined to overturn an ordinance banning registered sex offenders from parks in the Indianapolis suburb of Plainfield.

The court declined to hear the case by a 4-1 vote, letting stand without comment a state Court of Appeals ruling upholding the 2002 ordinance.

The American Civil Liberties Union of Indiana had sought a ruling to clarify the court's stand on such local ordinances. The court has generally declined to strike down laws restricting the activities of sex offenders but has found constitutional problems with enforcement in certain cases.

Plainfield town attorney Mel Daniel said officials were pleased with the decision released on Thursday.

ACLU attorney Ken Falk said the group might now drop a lawsuit over a similar ordinance in Greenwood.

For background, see this ILB entry from August 19th.

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - More on: Brief filed in response to AG's July 27th petition for rehearing in David Camm case

Updating this ILB entry from August 18th, Matt Thacker of the Jeffersonville News & Tribune reports today in a lengthy story that begins:

The Indiana Supreme Court on Wednesday requested to have the entire David Camm murder case file sent to them.

That came after Camm’s defense team filed its response Friday to Attorney General Greg Zoeller’s and Floyd County Prosecutor Keith Henderson’s request for a rehearing before the Supreme Court.

Henderson said the Supreme Court could have rejected the state’s argument without looking at the case file. He is hopeful the request means the justices will review transcripts of the trial.

“Definitely, it was my intention through the petition for reconsideration for the four justices [who ruled in favor of overturning Camm’s murder conviction] to review the record of the trial, because I do think they overlooked some key portions of it,” Henderson said. “I think the Supreme Court will give such an important case a thorough review.”

Katharine Liell, Camm’s attorney, said the Supreme Court requesting the case file is standard procedure, and she believes the court will deny the state’s request for a new hearing.

“The state, in its petition for rehearing, raised nothing new,” Liell said. “These are arguments they already made and lost on.”

Liell said the Indiana Supreme Court generally will only reconsider a ruling if the state can show that it misapplied U.S. Supreme Court precedent.

“A rehearing is not appropriate just to regurgitate what has already been argued,” she said.

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Observations on: Verdict in road-rage shooting trial in Clark County

This ILB entry from earlier today included this quote from the LCJ story:

At Thursday's sentencing hearing, [Judge] Moore told the packed courtroom that while preparing for deciding on a sentence, he had his staff drive the stretch of 10th Street where the problems had escalated and count the number of driveways and other possible escape routes that either motorist could have taken.

There were 48 such opportunities, the judge said. And Moore said he went to see the gas station next to the location where the shooting took place. He said Parrish had “two options to pull into that driveway before she chose to pull that gun.”

Given my recent ILB entries on Ind. Code of Judicial Conduct Rule 2.9(C), including this one from Aug. 20, I asked IU Law Professor Joel Schumm for his observations. He responded:
Although the evidence rules don't apply at sentencing, Evid. R. 101(c)(2), the judicial canons or code of conduct do. When judges gather evidence on their own, partiality concerns can arise. What is the defense lawyer supposed to do? Object and ask for a continuance to go count the driveways or question the court employee who gathered the evidence?

Hulfachor v. State, 813 N.E.2d 1204, 1207-08 (Ind. Ct. App. 2004): "Nevertheless, we strongly caution trial courts against looking outside the record for evidence in a sentencing hearing. Obviously, such a practice deprives a defendant of the opportunity to review the information and refute its accuracy. By not placing the information in the record, the trial court created a risk that sentencing would be based on inaccurate or irrelevant information. Therefore, trial courts should look only to evidence properly placed in the record when making sentencing determinations."

[More] Just a few minutes after writing the above, Matt Thacker's afternoon story in the Jeffersonville News and Tribune was posted. Some quotes:
[Judge] Moore had harsh words for Mosier and Parrish, saying that the two appeared to be in competition as they drove down 10th Street the day of the shooting.

“Both of these adults on the roadway that day were engaged in conduct that was not that of mature adults,” Moore said.

He said he drove down 10th Street after the jury trial concluded and counted 48 places either Mosier or Parrish could have exited to avoid the confrontation, and he even asked a staff member to drive down 10th Street and check his counting.

Moore said he also sat in the parking lot at Thorntons twice in the past month watching traffic in order to visualize what might have happened that day.

He found it “troubling” that Parrish never drove into the Thorntons parking lot and said Parrish “put lives at stake and endangered people on the roadway that day, maybe even people in the next lane.”

[Brian Butler, Parrish’s attorney] said he had never heard of a judge going out to the scene of a crime, but was not aware of any rule prohibiting judges from doing that.

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 10 NFP)

For publication opinions today (8):

In Christine Dugan v. Mittal Steel USA, Inc., and Jay Komorowski, a 13-page opinion, Judge Crone writes:

Christine Dugan appeals the trial court's grant of summary judgment in favor of Mittal Steel USA, Inc. (“Mittal”), and Mittal employee Jay Komorowski (collectively, “Appellees”) on her defamation claim. We affirm in part, reverse in part, and remand for further proceedings. * * *

Dugan first contends that Komorowski's statements are defamatory per se. We agree. On their face, the statements impute criminal conduct and misconduct in Dugan's occupation. Dugan also contends that the statements are false, in that the arbitrator determined that she did not engage in such wrongdoing. Again, we agree.

In response, Appellees invoke the doctrine of qualified privilege, which “protects communications made in good faith on any subject matter in which the party making the communication has an interest or a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” * * *

Assuming for argument's sake that Komorowski made the statement in good faith and that he and his coworkers shared a common interest in job security, we fail to see how the statement was limited to the purpose of upholding this interest, in that Komorowski admitted that he did not know whether the investigation was over or whether more employees would be terminated. In other words, we fail to see how Komorowski's statement regarding Dugan's alleged theft could even arguably serve the purpose of quelling any rumors and fears regarding McClain's and Gorroll's job security. Likewise, we cannot conclude that the meeting was the proper occasion for making the statement or that the statement was made to appropriate parties. Cf. Schrader, 639 N.E.2d at 262 (listing elements of qualified privilege defense). Therefore, we conclude that Appellees failed to establish as a matter of law that the statement is protected by the common interest privilege. Consequently, we reverse the trial court's grant of summary judgment as to paragraph 7 of Dugan's complaint and remand for further proceedings on that portion of her definition claim.

In Boyd Vandenberg, Deceased v. Snedegar Construction, Inc. , a 17-page opinion, Judge Crone writes:
Boyd Vandenberg's wife, Jane Vandenberg, appeals the order of the Full Worker's Compensation Board (“the Board”), affirming the single hearing officer's decision denying her claim for worker's compensation benefits following Boyd's suicide. Jane asserts that the Board erroneously concluded that Snedegar Construction, Inc. (“the Company”), carried its burden to prove that Boyd's death was caused by a knowingly self-inflicted injury and therefore she is not entitled to benefits. We affirm. * * *

We conclude that the evidence and the reasonable inferences drawn therefrom support the Board's decision that the Company carried its burden to prove that Boyd's death was caused by his knowingly self-inflicted injury. Accordingly, we affirm the Board's decision denying Jane's claim for worker's compensation benefits.

In Plaza Group Properties, LLC, Robert W. Allen, et al. v. Spencer County Plan Commission, et al. , a 17-page opinion, Judge Bailey writes:
The Spencer County Plan Commission and the Spencer County Board of Commissioners (collectively “Spencer County”) filed an information to show cause, alleging that Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, L.L.C. (collectively “Defendants”) were violating an order issued by the Spencer Circuit Court. The trial court found the Defendants to be in contempt, ordered them to pay $340,000 in fines, in addition to attorney and expert-witness fees, and prohibited the operation of the Defendants' business for at least one year and until they paid in full the fines and fees ordered therein. * * *

The Defendants were precluded from arguing that Spencer County Ordinance 2005-11 was unconstitutional and that two of the Defendants did not operate the business. Furthermore, the one-year closure of the Defendants' bookstore did not violate their First Amendment rights.

The fine was not punitive. However, of the forty-six contemptuous acts found to have occurred, the record does not support the trial court's finding in three of them. Accordingly, we remand with instructions to reduce the fine from $340,000 to $317,500. We deny the county's request for appellate attorney fees. Affirmed in part, reversed in part, and remanded.

D.L.D. v. L.D. - "D.L.D. (“Father”) appeals the denial of his motion to correct error, which challenged the denial of his Indiana Trial Rule 60(B)(6) motion to set aside a dissolution decree, custody order, and property settlement obtained by L.D. (“Mother”). We affirm."
Note: As per this ILB entry from Aug. 14, quoted here, this is the now at least the fourth such opinion:

"ILB comment (from 8/14/09): This is the third opinion in a divorce case the ILB has noticed recently where the parties are not identified by name. All three divorce cases have included custody issues. I've learned informally that there is a new courtwide policy that essentially vests discretion in the writing judge. I have heard nothing official, so don't know the parameters of the discretion, whether it is just divorce cases with custody issues, what criteria apply, etc.. (In this case, the parties' names are available via the docket.)"

Q- Might this or a similar informal policy be adopted to shield the identities of the parties with respect to other types of decisions?

In William Price v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:
Appellant-defendant William Price appeals his conviction for Cruelty to an Animal, a class A misdemeanor. Specifically, Price argues that the statute is unconstitutionally vague and that the evidence was insufficient to convict him. Finding that the statute is not unconstitutionally vague as applied to Price and that the evidence was sufficient, we affirm. * * *

Price argues that Indiana Code section 35-46-3-12 is unconstitutionally vague. As an initial matter, the State maintains that Price has waived this argument because he did not move to dismiss the information in the trial court. Price counters that the constitutionality of a statute may be raised at any stage of the proceedings.

Our Supreme Court has held that “[g]enerally, the failure to file a proper motion to dismiss raising the Constitutional challenge waives the issue on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985). Nevertheless, both our Supreme Court and this court have considered challenges to the constitutionality of statutes even though the defendant had failed to file a motion to dismiss. See Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992) (concluding that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court”); Vaughn v. State, 782 N.E.2d 417, 420 (Ind. Ct. App. 2003) (deciding to address the defendant's challenge to the constitutionality of a statute even though the defendant failed to file a motion to dismiss and the State argued waiver). Moreover, even in cases where waiver has been found, the court proceeded to address the merits of the defendant's constitutional challenge. See Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985) (concluding that “[e]ven assuming appellant had preserved this claim, it would not constitute reversible error”); Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008) (stating that “even if we were to consider [the defendant's] argument upon the merits, he would not prevail because his challenge to the statute as unconstitutionally vague fails”). Thus, we will address the merits of Price's argument.[2]
_____________________
[2] We caution that our decision to reach the merits is not an invitation to neglect to file a motion to dismiss and then argue for the first time on appeal that the statute is unconstitutional. Indeed, this court has refused to address the merits after concluding that the defendant waived his constitutional challenge. See Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (holding that the defendant waived his challenge to the constitutionality of a statute because he failed to file a motion to dismiss in the trial court); Wiggins v. State, 727 N.E.2d 1, 5 (Ind. Ct. App. 2000) (holding that the defendant waived his argument that the statute was unconstitutionally vague even though he had filed a motion to dismiss because the motion only alleged that the statute violated the prohibition against ex post facto laws).

In Isaiah Tooley v. State of Indiana , an 8-page opinion, CJ Baker writes:
Appellant-defendant Isaiah Tooley appeals his conviction for Cruelty to an Animal, a class A misdemeanor. Specifically, Tooley argues that the statute is unconstitutionally vague and that there was insufficient evidence to convict him. Finding that the statute is not unconstitutionally vague on its face or as applied to Tooley and that the evidence was sufficient, we affirm. [ILB - The same discussion re vagueness as in the Price opinion follows, with the same footnote text.]
Kenneth L. Collins v. State of Indiana is a 23-page, 2-1 opinion. Judge Bradford writes:
Appellant/Defendant Kenneth Collins appeals from the trial court's alteration of the terms of his probation, which was originally imposed following his February of 2000 guilty plea to Class B felony Rape. We affirm in part and remand in part. * * *

We conclude that the imposition of the Special Stipulations did not constitute an abuse of discretion, did not violate due process, and was not an ex post facto law. We further conclude, however, that Special Stipulations 6, 7, 10, 11, and 15 were impermissibly vague, and we therefore remand this cause to the trial court for clarification of those terms. * * *

BROWN, J., concurs.
CRONE, J., concurring in part and dissenting in part. I concur with the majority's opinion in all respects except for its determination that Stipulations 16 and 17 are not unconstitutionally vague. Pursuant to McVey, 863 N.E.2d 434, and Fitzgerald, 805 N.E.2d 857, I would remand to the trial court to reconsider and clarify these conditions.

In Roger L. Brown v. State of Indiana , a 10-page opinion, Judge Crone writes:
Roger L. Brown challenges his convictions for class D felony operating a vehicle while intoxicated resulting in bodily injury. We affirm.

Issues: I. Whether the trial court abused its discretion by admitting evidence of Brown‟s horizontal gaze nystagmus test; II. Whether the trial court abused its discretion in admitting evidence of Brown‟s blood draw; and III. Whether the evidence is sufficient to sustain the convictions.

NFP civil opinions today (3):

George Mimms v. Hidden Bay Homeowners Association, Inc. (NFP)

Barbara MacMillian v. Jeffrey S. MacMillian (NFP) - "Barbara MacMillan appeals an Order entered on December 15, 2008, ordering Barbara to pay half of any tax liability based upon the sale of certain investment accounts, and also granting Jeffrey MacMillan a credit of $15,226.00 which represents 40% of the mortgage and real estate taxes paid by Jeffrey from the filing date until the date of the dissolution trial. Barbara raises three issues, which we revise and restate as: I. Whether the trial court erred in granting Jeffrey a $15,226.00 credit which was not granted to Jeffrey in the original dissolution decree, when the original dissolution decree was not appealed; II. Whether the trial court erred in ordering Barbara to pay one-half of the tax liabilities concerning the sale of certain investment accounts; and III. Whether this court should remand the case to the trial court for its consideration of awarding appellate attorney fees and expenses in favor of Barbara. We reverse and remand."

Brown Flying School, Inc. and Steve Brown v. Terre Haute International Airport Authority, et al. (NFP) - Lack of standing.

NFP criminal opinions today (7):

Justin Parsley v. State of Indiana (NFP)

Larry D. Grissett v. State of Indiana (NFP)

James Bryant v. State of Indiana (NFP)

Timothy E. Dennison v. State of Indiana (NFP)

Clyde Piggie v. State of Indiana (NFP)

Cordero Love v. State of Indiana (NFP)

Randy L. Reedy v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts -Still more on: Verdict in road-rage shooting trial in Clark County

Updating this ILB entry from August 1st, Harold J. Adams of the Louisville Courier Journal reports today in a story that begins:

A Clark County judge sentenced a Jeffersonville woman Thursday to 10 years for shooting a motorcyclist following a rolling confrontation of more than a mile along a city street.

People can't “decide that they are going to settle a traffic dispute with bullets and guns,” Clark Circuit Judge Dan Moore told Yalanda Parrish, who will be allowed to serve the final three years of her sentence on work release. Moore could have sentenced her to as many as 20 years.

The judge also ordered Parrish to pay $1,881 in restitution to the man she shot, Wesley Mosier, for medical expenses. * * *

At Thursday's sentencing hearing, Moore told the packed courtroom that while preparing for deciding on a sentence, he had his staff drive the stretch of 10th Street where the problems had escalated and count the number of driveways and other possible escape routes that either motorist could have taken.

There were 48 such opportunities, the judge said. And Moore said he went to see the gas station next to the location where the shooting took place. He said Parrish had “two options to pull into that driveway before she chose to pull that gun.”

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Appeals court upholds child molester ruling"; complaints aganst judge

The NFP August 12th COA decision in Steven W. Everling v. State of Indiana is featured in this Aug. 20th story by Justin Schneider in the Anderson Herald Bulletin. Some quotes:

The Indiana Court of Appeals has dismissed the appeal of a convicted child molester who claims he did not receive a fair trial in a Madison County court.

In a ruling filed Aug. 13, Judge Ezra Friedlander denied a claim by former Elwood resident Steven Everling that he was denied a fair trial, failed to receive effective counsel and that the local court abused its discretion in sentencing. * * *

Zaki Ali, Everling’s defense attorney, tried to stop the trial before it even began.

He filed a motion for change of judge and a complaint against Madison County Circuit Court Judge Fredrick Spencer with the Indiana Commission on Judicial Qualifications. The change of judge motion was denied. The day the trial was set to begin, Everling asked for a stay of proceedings and Ali filed for an emergency stay of proceedings; both were denied.

Ali asked Spencer to recuse himself in four other criminal cases after Spencer purportedly used an expletive in describing Christopher J. Mier, one of Ali’s clients. Spencer also allegedly engaged in plea negotiations with Mier at the hearing. Ali could not be reached for comment, but has said previously that none of his clients can receive a fair trial from Spencer, due to personal bias.

Friedlander, on behalf of the Indiana Court of Appeals, said Spencer never acted unfairly during the trial.

“The trial court’s actions and demeanor did not cross over the bounds of partiality,” he wrote. “That a complaint was filed against the trial judge by Everling’s trial counsel in an unrelated case does not establish that the trial court was biased against Everling.” * * *

The Court of Appeals opinion also upheld Everling’s sentence of 110 years.

“The trial court did not abuse its discretion in articulating the aggravating and mitigating factors that underlie the sentence imposed,” Friedlander wrote. “Nevertheless, because the record contains inconsistent statements as to the total sentence imposed, we remand to the trial court for clarification.”

Spencer did, however, leave Everling’s sentence unclear. His oral ruling called for two 55-year sentences to be served concurrently, while his written sentence was for the two sentences to be served consecutively, for a total of 110 years

Spencer said he intended to give Everling 110 years and plans to schedule a hearing to correct the error. * * *

In a separate case, Spencer faces a judicial misconduct complaint involving his actions in a murder trial.

Defense attorney Jeff Lockwood filed a complaint with the Judicial Qualifications Commission in August 2008, claiming that Spencer said he had already decided the sentence for Kathy Jo Ward, who was convicted of manslaughter for the killing of her husband, John Ward.

[ILB - access the story itself for more information on the alleged basis of the complaint]

Spencer said Wednesday that he was aware of the status of that complaint with the Judicial Qualifications Commission, but had no comment.

The Commission considers complaints against judges confidential unless the complaint results in public discipline or charges against the judge.

An earlier story by a different Herald Bulletin reporter, assistant managing editor Stephen Dick, dated April 29th and still available here, is headlined "State investigating Judge Spencer: Allegations stem from Ward murder trial."

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "LaVille school construction postponed again: Tax judge needs more evidence from DLGF before making final determination"

The Tax Court's August 20th NFP opinion in the case of George M. Moffett v. Department of Local Government Finance (ILB summary here) is the subject of a story today in the South Bend Tribune, reported by Virginia Ransbottom, that begins:

LAKEVILLE — Construction on LaVille schools will remain on hold after an Indiana Tax Court opinion was filed, asking for more evidence.

Judge Thomas Fisher's opinion, filed Wednesday, says the Department of Local Government and Finance failed to support its approvals of a nearly $20 million bond for school construction.

The case has been remanded to the DLGF, which is required to provide evidence supporting its decision.

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Another transfer granted this week, making three in total

Supplementing this ILB entry from yesterday, the ILB has received word that the following case was granted transfer Aug. 21st:

Posted by Marcia Oddi on Friday, August 21, 2009
Posted to Indiana Transfer Lists

Thursday, August 20, 2009

Ind. Courts - Channel 6 finds public defender appointed upon request, with no effort at determining financial need

Indy Channel 6 News' Jack Rinehart had this report last evening. Here are some quotes:

INDIANAPOLIS -- Some within the Marion County legal justice system are questioning why a man who lives in an exclusive neighborhood is being represented by a public defender.

Cary Osborne is set to go to trial next week on a misdemeanor charge of resisting law enforcement, 6News' Jack Rinehart reported.

At his initial hearing in April, Osborne asked for a public defender, citing a medical condition and time spent under the care of doctors, court records show. * * *

The judge said he would assign a public defender to Osborne's case, but at no point asked if Osborne could afford his own attorney. * * *

Marion County Chief Public Defender Robert Hill said that the county lacks the money and resources to verify every person's financial need.

"It does create a situation where someone looking at this might have questions," he said. "If someone isn't entitled to a public defender, resources are tight, my attorneys are overworked, the system is overburdened. If someone isn't entitled, they shouldn't get a public defender. " * * *

Besides owning the home that Osborne is living in, his mother owns a $1 million mansion in the high-end stretch of Meridian Street north of downtown Indianapolis.

There was a follow-up report on Channel 6 this evening, focusing on what kind of investigation, or questioning, judges should perform prior to appointing a public defender, but it does not seem to be available online yet.

The ILB has written about this issue before, in two entries headed "If you cannot afford an attorney, one will be appointed for you." In the first, from Sept. 26, 2008, I wrote near the end:

I'm told that in at least some Indiana counties little effort is made to determine eligibility before a public defender is assigned. The ILB would be interested in comments from readers on this point.
A follow-up, from Oct. 1, 2008, dealt with appointment of counsel for alleged delinquent children.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Indiana Courts

Ind. Gov't. - Public Access Counselor moves on, to Indiana Department of Education; no successor named

Robert Annis of the Indianapolis Star reports this afternoon:

Indiana¹s top public records watchdog is leaving her job to take a education post.

Public Access Counselor Heather Willis Neal, who Gov. Mitch Daniels appointed to a four-year term in 2007, accepted a new role at the Indiana Department of Education.

The Indiana University Law School graduate previously served as executive director of the School Choice Indiana nonprofit from 2005-07. * * *

Neal¹s last official day as public access counselor is Friday, but because there is no successor lined up, she'll be pulling double duty for a while, she said.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Indiana Government

Ind. Decisions - Another 7th Circuit post-Heller gun ruling

The decision is Justice v. Town of Cicero (ND Ill), written by Judge Wood (joined by Judges Tinder and Bauer), issued August 14th. Here, beginning on p. 9, is the discussion dealing with the 2nd amendment:

We now turn to Justice’s Second Amendment claim. The district court found that the Town’s ordinance requiring the registration of all firearms did not violate Justice’s constitutional rights because the Second Amendment does not regulate the activities of a state or its subdivisions, relying on this court’s decision in Quilici v. Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982). It noted that the Illinois Constitution subjects the right to bear arms to the police power, and that Illinois permits municipalities to regulate the possession of firearms to protect the public health, safety, and welfare. See Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir. 1984).

Since the date of the district court’s opinion (October 10, 2007), there has been some water under the Second Amendment bridge. First, the Supreme Court decided District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which struck down an ordinance of the District of Columbia that flatly prohibited the possession of handguns. Second, this court decided National Rifle Ass’n of America v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), in which we concluded that the Second Amendment (under current Supreme Court law) is not one of the parts of the Bill of Rights that has been incorporated by the Fourteenth Amendment and thereby made applicable to the states. In NRA, we aligned ourselves with the Second Circuit’s decision in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), and expressed disagreement with the Ninth Circuit’s reasoning in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).

If, as we have held, the Second Amendment does not apply to the states and their subdivisions, then Justice has no case. Even if we are wrong and the Ninth Circuit has proven to be the better predictor of the Supreme Court’s rulings, there is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance. Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under § 62-260 of its ordinance. The Town does prohibit the registration of some weapons, but there is no suggestion in the Complaint or the record that Justice’s guns fall within the group that may not be registered. See § 62-261. Nor does Heller purport to invalidate any and every regulation on gun use; to the contrary, the Court in Heller disclaims any such intent:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [FN26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
128 S. Ct. at 2816-17 (citations omitted). Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.
Justice had sued the Town for confiscating his guns, citing him for possession of an unregistered firearm, and shutting down his business for one week. From near the beginning of the opinion:
After methodically explaining the problems with each of Justice’s allegations, the district court dismissed the entire complaint [ILB - including the 2nd amendment challenge to the Town’s ordinance requiring registration of firearms] for failure to state a claim under FED. R. CIV. P. 12(b)(6). We agree with the district court and therefore affirm the judgment for the defendants.

We review an order granting a Rule 12(b)(6) motion to dismiss de novo and affirm if the complaint fails to include sufficient facts “to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Thus, both the recent Heller, and this term's Iqbal, are relied upon in this decision.

As of yet, there has been little, if any, press on this opinion. Dovid Kopel of The Volokh Conspiracy discusses the opinion in this entry this afternoon.

For background, see the prior ILB entries citing NRA v. City of Chicago.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Two transfers granted Aug. 19th

Although we still have not seen the transfer list for the week ending Aug. 14, the ILB has just received information on some new transfers, granted Aug. 19, which presumably will be included on the Clerk's Transfer List to be dated Aug. 21st.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Tax Court issues one NFP today

In George M. Moffett v. Department of Local Government Finance (NFP), a 7-page opinion, Judge Fisher writes:

On September 10, 2008, the Department of Local Government Finance (DLGF) issued a final determination granting modified approval of the proposed lease rental agreement between the Union-North United School Corporation (the School Corporation) and the Union-North United School Building Corporation (the Building Corporation). George M. Moffett (Moffett) challenges that final determination. * * *

The Court therefore REMANDS the case with instructions for the DLGF to enter specific findings of fact upon which its final determination is based and upon which judicial review may then be effectively facilitated.

What happened here? The Court writes:
[I]t is imperative that the DLGF provide written findings of fact in support of its final determination, as those findings enable the Court to intelligently review the final determination without speculating as to the DLGF's rationale. See Jackson v. Cigna/Ford Elec. and Refrigeration Corp., 677 N.E.2d 1098, 1102 (Ind. Ct. App. 1997) (stating general rule that, in all cases, administrative agencies must set out written findings of fact so that on judicial review, courts do not have to speculate as to agency's reasoning) (citations omitted).

Here, the DLGF's final determination fails to meet this standard. Indeed, the final determination offers no findings of fact, no reasoning, no analysis of any kind.
_________
[7] * * * Whether the DLGF considered the factors in Indiana Code § 20-46-7-11 is not the problem. * * * The problem is that it is impossible to discern why the DLGF ruled the way it did, and therefore it is impossible to discern whether its final determination is supported by substantial evidence.

[8] 8 On a final note, the DLGF argues that because many of Moffett's claims as to why the DLGF's final determination is erroneous are “conclusory,” “not supported with citations to the record,” or “not supported by cogent argument,” they fail to show that the DLGF committed reversible error. (See Resp't Br. at 4-5, 8-10.) It seems rather disingenuous, however, that the DLGF can complain about the deficiencies of Moffett's claims when those claims arise from its entirely deficient final determination. Accordingly, the Court will deal with Moffett's claims (and the DLGF's responses thereto) after the DLGF enters specific findings of fact in support of its final determination.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (2):

In Andre L. LaFlamme v. Carrie Goodwin, an 11-page opinion, Judge Friedlander writes:

Andre Laflamme appeals the trial court's order refusing to set aside a default judgment that modified a California child support order. Laflamme presents two issues for our review, one of which we find dispositive: Did the trial court have personal jurisdiction over Laflamme? We reverse and remand. * * *

In this case, there are no contacts sufficient to establish personal jurisdiction over Laflamme. Laflamme has never lived in Indiana and the couple's daughter was not conceived in Indiana. Laflamme's only contacts with Indiana include sending “cards, letters and gifts” to his daughter in the past, responding to Goodwin's request that he continue paying child support and assist in paying post-secondary education expenses for the couple's daughter, and paying child support pursuant to the California court's order. We agree with Laflamme that none of these contacts constitute acts of “purposefully avail[ing himself] of the privilege of conducting activities within [Indiana], thus invoking the benefits and protections of [Indiana's] laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). Laflamme's contacts with Indiana were incidental to Goodwin's decision to move to this state with Amanda and too attenuated to subject him to the jurisdiction of Indiana courts. See Hotmix & Bituminous Equip. Inc. v. Hardrock Equip. Corp., 719 N.E.2d 824 (finding no minimum contacts despite communication through interstate telephone calls and letters that culminated in a business relationship).

We address one other argument made by Goodwin in support of the court's exercise of personal jurisdiction over Laflamme. The fact Laflamme did not contest personal jurisdiction when the Indiana court domesticated the California divorce decree in 1999 does not serve as a valid waiver of his right to now contest the Indiana court's exercise of personal jurisdiction over him for purposes of modifying his child support. In this same vein, choosing not to challenge personal jurisdiction at the time of the domestication order does not render Laflamme's present challenge to the court's exercise of personal jurisdiction untimely. * * *

In short, we conclude the trial court lacked personal jurisdiction over Laflamme under UIFSA. Consequently, the court's default judgment and order modifying Laflamme's child support obligation are void. Therefore, the trial court erred in refusing to set aside the default judgment and dismiss the action. The judgment of the trial court is reversed, and this cause is remanded with instructions that Goodwin's request for modification be dismissed.

In In the Matter of: J.W., Indiana Dept. of Child Svcs. v. V.B. and C.W. , a 3-page ruling, Judge Friedlander's opinion reverses the trial court order that the Indiana Department of Child Services pay the guardian ad litem fees:
The question presented is whether the DCS is obligated to pay the GAL’s fees, or whether, as the DCS contends, that obligation properly belongs to the county – in this case, Hendricks County. Another panel of this court recently addressed precisely this issue. In In re N.S., 908 N.E.2d 1176 (Ind. Ct. App. 2009) we undertook an examination of the relevant statutes, i.e., Ind. Code Ann. § 31-40-3-2 (West, Premise through 2009 Public Laws approved and effective though 4/20/2009), and Ind. Code Ann. § 33-24-6-4 (West, Premise through 2009 Public Laws approved and effective though 4/20/2009). [where we concluded] "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." * * *

Accordingly, adopting the rationale set out in In re N.S., we conclude that the trial court erred in ordering the DCS to pay the fees associated with J.W.’s GAL.
Judgment reversed.

NFP civil opinions today (1):

J.M. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (7):

Richard D. Martin v. State of Indiana (NFP)

Moses Pierce v. State of Indiana (NFP)

Brian Bowen v. State of Indiana (NFP)

Jason R. Barton v. State of Indiana (NFP)

Britt Scott v. State of Indiana (NFP)

Patrick Germany v. State of Indiana (NFP)

Richard Perez v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 4 Indiana opinions today from 7th Circuit

Fincher v. South Bend Housing Authority (ND Ind., Judge Simon)

In Laouini v. CLM Freight (SD Ind., Judge Barker), a 13-page opinion, Judge Flaum writes:

The sole issue on appeal in this employment-discrimination lawsuit is whether the defendant, CLM Freight Lines (“CLM”), met its burden at summary judgment of proving that the plaintiff, Moncef Laouini, did not timely file a charge of discrimination with the EEOC. The agency’s Indianapolis office accepts administrative charges of discrimination by fax, and plaintiff’s counsel insists that he faxed Laouini’s charge during business hours on the final day for timely filing. A transmission record from counsel’s fax machine confirms that he successfully faxed some document to the agency that day, but there is nothing in the agency’s files evidencing receipt of counsel’s fax. The district court concluded that Laouini could not prove that the charge had been timely filed and granted summary judgment for CLM. We vacate the judgment and remand for further proceedings. * * *

According to the [district] court, although the fax confirmation shows that something had been faxed from counsel’s office to the EEOC on April 12, there was no evidence that the fax was actually received or that the document that had been faxed was Laouini’s charge. The court found it significant that Laouini’s lawyer could not say with certainty that he personally fed the charge into the fax machine. The court also reasoned that, because there was evidence that faxes received by the EEOC’s Indianapolis office before 4:30 p.m. are deemed filed the same day, and Laouini’s charge was not file-stamped until it arrived in the mail on April 16, the fax was never received. Finally, the court declared that, although the local EEOC office allows filing by fax, EEOC regulations do not expressly approve of this method, and so any lawyer who submits a charge by fax “acts at his or her peril.” * * *

This case, then, turns in part on the evidentiary significance of a fax confirmation generated by the sender’s machine, an issue we have not previously addressed. Although CLM insists that such a confirmation is “no evidence” of receipt, the company does not cite any authority supporting this proposition or acknowledge that most courts to address the issue have concluded otherwise. * * *

Although fax confirmations may not always be conclusive proof of receipt, we believe that in this case—where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt— the fax confirmation creates a factual dispute sufficient to preclude summary judgment. Whether it was plaintiff’s counsel or his assistant who faxed the charge, the fax confirmation independently verifies that a three-page document was sent from counsel’s office to the EEOC before 4:30 p.m. on April 12, the final day for timely filing. As the district court observed, the confirmation itself does not prove the content of the document, but counsel swore in an affidavit that the fax consisted of Laouini’s two-page charge and a cover sheet, and there is no evidence to undermine his representation.[1] And although at summary judgment the plaintiff did not present evidence establishing that confirmation of a successful transmission necessarily means that the document printed out on the other end, a reasonable factfinder could certainly infer as much. It is commonly understood that “success” in this context means that the two fax machines have performed an electronic “handshake” and that the data has been transmitted from one machine to the other. See, e.g., INFORMATION SECURITY MANAGEMENT HANDBOOK 277 (Harold F. Tipton & Micki Krause eds., 6th ed. 2008) (“[O]ne significant advantage the fax has over other forms of data exchange is that the sender immediately knows if the transmission was successful. . . . [A]ll fax machines have the capability to print a fax confirmation sheet after each fax sent. This sheet confirms if the fax has been successfully transmitted . . . .”); How to Understand Faxes, http://www.how-to.com/article/ details/160 (“Once your fax has been delivered, your system . . . will create a page with the end result of the transmission. If the fax was sent successfully, the page will say “Okay.”); How to Get Confirmation of a Sent Fax, http://www.ehow.com/how_2015874_confirm-fax-sent.ht ml (“A confirmation report is a document confirming that your faxes were sent and received.”).

The fax confirmation is thus strong evidence of receipt, and, contrary to the district court’s conclusion, CLM offered no evidence to meet its burden of proving nonreceipt.
_________________
[1] Although CLM has not raised the issue, there is a question whether counsel’s role as a fact witness on this point is problematic. The Southern District of Indiana has adopted the Indiana Rules of Professional Conduct, see S.D. IND. LOC. R. 83.5(g), which prohibit a lawyer from serving as an advocate at a trial in which he is likely to be a necessary witness unless the testimony relates to an uncontested issue, relates to the nature and value of counsel’s legal services, or disqualification of the lawyer would cause substantial hardship to the client, see IND. RULES OF PROF’L CONDUCT R. 3.7. Whether counsel would be a “necessary” witness at trial and whether any of the exceptions would apply are questions for the district court to address.

In Haber v. Biomet, Inc. (SD Ind., Judge McKinney), a 12-page opinion, Judge Wood writes:

We conclude that res judicata bars our consideration of the particular arbitrability issue that Haber asks us to consider in his appeal. At Haber’s urging, the Hamilton Superior Court reached that issue first and resolved it. In addition, the district court’s rationale for dismissing Haber’s complaint on the basis of venue was sound. Therefore, we affirm.

In Coffman v. Indianapolis Fire Dept. (SD Ind., Judge Young), a 16-page opinion, Judge Rovner writes:

Indianapolis firefighter Tonya Coffman sued the Indianapolis Fire Department and several of its employees alleging sex discrimination under Title VII, 42 U.S.C. § 2000e et seq., violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and privacy intrusions amounting to violations of her due process rights under the Fourteenth Amendment, see 42 U.S.C. § 1983. She also brought several state-law claims. Her claims arise from what she alleges were a number of discriminatory driving evaluations and fitness for duty evaluations. The district court dismissed the state-law claims without prejudice and granted the defendants’ motion for summary judgment on all of Coffman’s remaining claims. She appeals, and we affirm.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - "3rd Circuit Appeal Challenges Judge's Outside Research in Bench Trial"; Where is Indiana on this?

Henry Gottlieb writes today in the New Jersey Law Journal:

A federal appeals court has been asked to limit the right of judges to do their own research in bench trials, lest they be swayed by facts not before them.

U.S. Magistrate Patty Shwartz in Newark, N.J., no-caused a medical malpractice claim after consulting published and unpublished cases -- not cited by the parties -- that dwelled on the type of injury the defendant doctor was accused of inflicting.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed the verdict, saying the research was for "informational" purposes only and was not the basis for Shwartz's decision.

The plaintiff, seeking en banc review and a new trial, asks: Was Shwartz's inquiry akin to jurors making clandestine visits to an accident scene or doing Internet research in the middle of a trial?

Or was the judge engaged in acceptable, indeed commendable, efforts to inform herself before reaching the right decision, as the defense argues in the case, Araoz v. United States, 08-2248. * * *

The plaintiffs lawyer, Kenneth Berkowitz of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham, N.J., concedes there was enough in the record presented by the parties to support Shwartz's verdict.

But he objects to her examination of 14 published and unpublished cases from other federal and state jurisdictions that were not presented by either side in a case in which there were no legal disputes. The research was solely to glean facts, and that was extraneous information that could have tainted the outcome, Berkowitz argues.

The research exposed the judge to commentary by other judges on the reliability of experts and may have colored her view, Berkowitz argues.

In one of the cases she cited, an unreported state court decision in Ohio, a judge was critical of the expert who Berkowitz used in his case.

"The magistrate judge conducted this research solely to become informed of the extraneous facts, analysis and outcomes in fourteen state and federal cases, not one of which was cited by either party, which cases all involved the very same injury and liability positions as advanced by plaintiff-appellant," Berkowitz says in an Aug. 11 petition.

"Once the magistrate judge ventured outside the record to explore factually similar cases for informational purposes the magistrate judge exceeded the bounds of what she permissibly could do as a facto finder in this non-jury trial," he argues.

In an interview on Tuesday, Berkowitz amplified his assertion that there is a difference between research for guidance on the law and guidance on the facts. "If you are trying to figure out what the federal law is in New Jersey, you look at federal cases and New Jersey state cases," he says. "You would never look to Ohio law in an unpublished decision. There is no legitimate reason for doing it." * * *

Berkowitz's brief says it's true that magistrates, unlike jurors, are exposed to inadmissible material and know how to filter it out. "Such filtering did not happen here," the pleading says. "Instead, the magistrate judge not only improperly sought out the extraneous material she considered it, discussed it and relied upon it." * * *

Defense counsel Allan Urgent, an assistant U.S. Attorney in Newark, declines to comment.

Urgent and Assistant U.S. Attorney Pamela Perron argued in a brief before the three-judge panel that Shwartz did not rely on the 14 cases and that their inclusion in the opinion was innocuous.

Two of them were used to describe terms such as "shoulder dystocia" and the definitions were no different from the ones used by experts in the case, the brief says.

Other cases were cited for the self-evident point that "many malpractice cases turn on competing expert testimony," according to the brief.

"In this case a conscientious, hardworking judge exercised her independent judgment in preparing the trial court's findings of fact and conclusions of law," the defense brief says.

"In innumerable cases resulting in a judgment, trial judges conduct independent research to assure themselves of the current status of law," the brief says. "It is certainly not unusual or improper for a judge to cite factually similar cases to help explain the court's ruling."

"The public expects judges to read the law and to make use of existing case law," the brief says. "Adopting Araoz's speculative argument would create a new appellate issue that could be litigated in almost every case. The Court should reject Araoz's reasoning because the result would discourage trial judges from undertaking legal research as part of the decision-making process."

This May 7th ILB entry linked to a law review article titled "The Curious Appellate Judge: Ethical Limits on Independent Research" (by Elizabeth G. Thornburg of Southern Methodist University) and to Ind. Code of Judicial Conduct Rule 2.9(C), adopted by Indiana's Supreme Court in 2008.

This July 4th ILB entry quoted from the Indiana Court's May 13th, 2008 opinion in the "MySpace case," A.B. v.State of Indiana, where Justice Dickson wrote at p. 2 [emphasis added]:

As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." Tr. at 25. The principal testified: "I don't get on MySpace." Tr. at 36. The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.
This year, on May 27th, the Court ruled in the case of Brandon Stanley v. Danny Walker, Justice Dickson included this footnote 3 on p. 4 of his dissent [emphasis added]:
The majority opinion, the concurrence, and this dissent discuss information from resources that are not part of the record of proceedings of this case. Indiana Code of Judicial Conduct Rule 2.9(C) declares that judges "shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." And Comment [6] explains that this prohibition "extends to information available in all mediums, including electronic." I understand this Rule's reference to the "facts in a matter" to mean the specific facts relating to the incident upon which a lawsuit is based, but that the Rule does not restrain appellate consideration of other general information helpful to the function of appellate courts in statutory interpretation and the advancement determination of common law.
Justice Dickson was on a panel on "Drawing the Line Between Internet Research and Impermissible Fact-Hunting" last Oct. 28, His materials included the new rule, A.B. v. State, and two articles:

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Courts in general | Indiana Courts

Environment - More on "NW Indiana counties stop residents' wind tower ventures"

Updating this ILB entry from August 15th, which reported that "County ordinances aren't prepared to deal with wind towers and spires," Gitte Laasby of the Gary Post Tribune had this follow-up story on Aug. 19th. Some quotes:

The disagreement between Lake County and a Lowell man who put up a wind spire without a permit might be coming to an end.

The man intends to apply for a variance of use, which is what the Lake County Plan Commission requires unless he takes down the tower.

Lowell resident Nick Serena maintains that he called the county before putting up his spire and was told no permit was required.

Lake County Plan Commission Director Ned Kovachevich said county officials did inform Serena and distributor George Kontol Jr. in March that a variance was required, but that Serena wasn't happy with the process.

"This is simply a case of someone that does not wish to follow the rules," Kovachevich wrote in an e-mail to the Post-Tribune. "Mr. Serena and Mr. (Kontol) were aware of what was necessary and also were aware of the local requirements. They have brought this unpleasant situation on themselves by deciding not to follow local rules, regulations or procedures."

Kovachevich said the county reminded Serena after the fact that he needed a variance and that he said he'd comply, but never did.

Kovachevich said the county ordinance doesn't mention wind generators. It only lists land uses approved for each zone. Anything not listed requires a variance.

"We don't have a list of uses that are not approved in an agricultural zone. The only thing you can find in the ordinance are uses that are approved in an agricultural zone, or any zone for that matter," Kovachevich said. "If it's not approved, it's not permitted."

Kontol Jr. said knowing a variance is required helps, but that going through a potentially lengthy variance process with public hearings would still dissuade some from putting up wind generators. He said he'd prefer wind towers to be worked into the ordinance like it is in some towns and counties.

"For someone to have to sit there and go through the variance process, you're going to derail it," he said.

He said Crown Point recently issued him a permit that cost $125 to put up a wind spire. In LaPorte County, a permit was $60. In another unincorporated area in the state, spires are regulated like a TV antenna and permits cost $25.

"Lake County is the hardest county to do anything in," he said.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Indiana Government

Ind. Law - "Ice Miller wins kudos as women's employer"

Dana Hunsinger reports today in the Indianapolis Star:

When it comes time for that annual mammogram, women at Ice Miller can have it done at work. They can bring in their laundry to be dry-cleaned and breast-feed in private "mommy rooms." And if they have to work late, they don't have to cook dinner. The firm provides it.

It's these perks, along with a high percentage of female partners and associates, that landed Indianapolis-headquartered Ice Miller as one of the 50 best law firms in the nation for women, according to Working Mother magazine and Flex-Time Lawyers. It was the only Indiana-based firm to make the list, which was announced last week. * * *

The law firm also ranks No. 1 in the nation among the 180 largest law firms for the highest percentage of female equity partners, those who share in the firm's profit -- 27.3 percent, compared with 16 percent nationwide. And it ranks fifth nationwide for the percentage of female partners.

For the top 50 list, firms were evaluated on their profile, family-friendly benefits and policies, flexibility, leadership, compensation and advancement and retention of women, among other factors.

Ice Miller stood out for multiple reasons, including 12 weeks of paid leave for the birth or adoption of a child, as well as the fact that women who choose to work a flexible or reduced-hour workweek are still eligible for equity partnership, said Jennifer Owens, senior director of editorial research and initiatives at Working Mother. * * *

Other Indianapolis law firms are also making strides when it comes to female associates.

Barnes & Thornburg, for example, has 47 female partners, said Jan Carroll, one of those partners.

"From the time I started, I was given the same opportunities and challenges as my male colleagues, not that I expected otherwise," said Carroll, who joined in 1986.

Posted by Marcia Oddi on Thursday, August 20, 2009
Posted to Indiana Law

Wednesday, August 19, 2009

Law - More on: "New appraisal rules raise many concerns"

"New appraisal rules raise many concerns" was the headline to a story by Nicole Blake of the Indianapolis Star, dated July 21st.

Yesterday the New York Times and the Wall Street Journal both had major stories on the same topic.

The Times story, by David Streitfeld, begins:

Mike Kennedy, a real estate appraiser in Monroe, N.Y., was examining a suburban house a few years ago when he discovered five feet of water in the basement. The mortgage broker arranging the owner’s refinancing asked him to pretend it was not there.

Brokers, real estate agents and banks asked appraisers to do a lot of pretending during the housing boom, pumping up values while ignoring defects. While Mr. Kennedy says he never complied, many appraisers did, some of them thinking they had no choice if they wanted work. A profession that should have been a brake on the spiral in home prices instead became a big contributor.

On May 1, a sweeping change took effect that was meant to reduce the conflicts of interest in home appraisals while safeguarding the independence of the people who do them.

Brokers and real estate agents can no longer order appraisals. Lenders now control the entire process.

The Home Valuation Code of Conduct is setting off a bitter battle. Mortgage brokers, lenders, real estate agents, regulators and appraisers are all arguing over whether an effort to fix one problem has created many new ones.

The agents, maintaining that the changes are effectively blocking home sales by encouraging the use of inexperienced appraisers, are asking Washington to suspend the code until 2011. For their part, appraisers acknowledge that the change may have been well intentioned but contend that it has no teeth and is undermining the economics of their profession.

“We’ve been begging for years for enforcement of existing state and federal laws regulating appraising,” said Mr. Kennedy, a leader in the appraisal community. “We thought we were finally going to get that. But the code is doing nothing except putting ethical appraisers out of business.”

In the WSJ story, here are some quotes fromJames H. Hagerty's lengthy report:
Appraisers are required to follow a set of national rules known as the Uniform Standards of Professional Appraisal Practice. Among other things, those rules require that "an appraiser preparing an appraisal in an unfamiliar location must spend sufficient time to understand the nuances of the local market."

Yet some appraisers who travel long distances to find work may be hard-pressed to spend "sufficient time" in an unfamiliar market. LaRon Hall did an appraisal in early June on a home being sold in Palm Desert, Calif., about 86 miles from his office in Rancho Cucamonga, Calif. He says he needs to accept jobs within a broad swath of Southern California to earn a living. Under the new appraisal code, Mr. Hall says, "you're getting less money and you're having to do more. ... It's definitely a sticky situation."

Mr. Hall appraised the three-bedroom home at $186,000, far above the $138,000 for which it sold in late June. Concerned about accuracy, the mortgage lender that financed the purchase rejected Mr. Hall's appraisal and ordered one from another party before making the loan, according to a person involved in the transaction.

A spokesman for Equifax Inc., whose AMC unit ordered the appraisal in Palm Desert, says Mr. Hall has an excellent record on appraisals and that Equifax has a "rigorous quality-control process."

Though consumers can't choose their own appraiser—unless they're paying cash for a home—they should request a copy of the appraisal and examine it to see whether it contains any errors in the description of the property and whether the nearby homes, or "comps," used to gauge its value are truly comparable. If they aren't, the consumer should present any evidence of flaws to the banks and insist that the appraisal be reviewed and redone if necessary.

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to General Law Related

Courts - "After Settlement in Amtrak Case, Opinions Erased From Lexis and Westlaw" [Updated]

Shannon P. Duffy of The Legal Intelligencer reports today in a lengthy article. Here are some quotes:

Ordinarily, the decision to settle a case while an appeal is pending means giving up the opportunity to set a legal precedent as well as forgoing the chance to win a reversal of any unfavorable published decisions handed down by the lower court.

But a team of defense lawyers fighting to overturn a $24 million verdict have figured out a way to have their settlement cake and eat their jurisprudence, too.

The confidential settlement in Klein v. Amtrak -- a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire -- included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw.

And it worked.

A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to "direct" Lexis and Westlaw to remove them from their databases. * * *

Exactly how the lawyers went about persuading Stengel to take such an unusual step is impossible to say because all of the court papers are under seal and none of the lawyers will talk about it. * * *

Robert C. Clothier of Fox Rothschild, who has handled access cases for The Legal Intelligencer, said he was troubled by the court's decision to allow the defense lawyers to file all of their motions under seal, including the motion that asked for permission to seal the other papers.

To justify sealing any document, Clothier said, the courts have consistently held that it is necessary to "articulate on the record" the extraordinary circumstances that justify secrecy. As a result, he said, the motion to seal itself cannot be under seal.

The audiotape of the 3rd Circuit oral argument reveals that the three-judge panel had tough questions for both sides and that no clear winner emerged.

In five years of litigation, Klein v. Amtrak spawned a series of legally significant decisions -- all now withdrawn -- on issues such as how to apply the "attractive nuisance" doctrine in a case where the injured plaintiff was nearly 18 years old, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents.

In April 2008, Stengel issued a 60-page opinion that upheld the jury's verdict, rejecting a slew of arguments that challenged his pretrial rulings, his jury instructions and the size of both the compensatory and punitive damage awards.

Stengel found that the jury's conclusions were supported by clear evidence that "Amtrak had every reason to know trespassers were regularly on its tracks and that teenage boys were inclined to climb to the top of parked boxcars."

[Updated at 7:00 pm] Prof. Eugene Volokh has posted the six opinions here.

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Fouchard Guillaume and Christine Guillaume v. Hall Farms, Inc. and Midwest Marketing Co., Inc. (NFP) - "Neither McCants nor Hilton were employees of Midwest, and therefore summary judgment in favor of Midwest and Hall Farms was proper. Consideration of the issue of whether the trial court properly denied the Guillaume’s motion to amend their complaint is not properly before us on appeal and must be dismissed. We affirm."

Term. of Parent-Child Rel. of R.R.; J.C., et al v. IDCS (NFP) - "A thorough review of the record reveals that the trial court's judgment terminating Mother's parental rights to R.R. is supported by clear and convincing evidence. This court will reverse a termination of parental rights “only upon a showing of 'clear error' -- that which leaves us with a definite and firm conviction that a mistake has been made.” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly, 592 N.E.2d at 1235). We find no such error here."

NFP criminal opinions today (11):

Bobby Long v. State of Indiana (NFP)

Hector Seba v. State of Indiana (NFP)

Marvin W. Brown v. State of Indiana (NFP)

Michael G. Haney v. State of Indiana (NFP)

Leon Jennings v. State of Indiana (NFP)

Dennis Ellis v. State of Indiana (NFP)

Mark D. Youngs v. State of Indiana (NFP)

Melvin L. Sledge v. State of Indiana (NFP)

Jason Caldwell v. State of Indiana (NFP)

Derick Scruggs v. State of Indiana (NFP)

Joshua Balser v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't - "I-69 project: Can state finish what it started?"

I actually thought the Indianapolis Star was for the currenlty planned I-69 route to Evansville, before it was against it. But a quick search did not turn up any earlier Star editorials supporting the current route.

But today the Star definitely takes a stand, on the basis of its cost, against the route selected, in an editorial headed "Evansville or bust: I-69 takes toll." Some quotes:

Plans for the extension of I-69 through southwest Indiana were hatched long before the current recession and will not be realized in concrete for years, perhaps decades, to come.

Driving in the dark has been the hallmark of this dubious venture through several governorships representing both political parties. Today, as the economy forces cuts across the gamut of state services, nobody in government can or will say how much the 141-mile stretch of highway will wind up costing, much less what its economic benefits will be.

Two things are known: The route chosen for I-69 is the most expensive of all options considered; and the projected cost keeps growing. * * *

For all its expressed confidence, the administration can't say where the bulk of the money will come from for a highway whose estimated bottom line has ballooned to more than $3 billion -- $4 billion-plus by the reckoning of its opponents. * * *

It might have been less. This long-sought Indianapolis-to-Evansville connector could have used existing I-70 and U.S. 41, widened and upgraded, with far lower construction cost and far less property acquisition and loss of forest and farmland.

That route, which would have terminated near Indianapolis International Airport, likewise would have taken far less property in this area than the now-planned Perry Township connection, which is opposed by residents and elected officials across the political spectrum.

Foes of the chosen route insist they haven't given up on changing it; but their appeals to the state and federal governments and the courts have failed so far. Gov. Mitch Daniels' successor may find it feasible to rethink the project if progress remains slow and cost estimates continue to rise. Otherwise, he or she will become the next star player in a high-stakes guessing game of historic proportions.

The editorial references its Aug. 17th story by Bill Ruthhart, headed "I-69 project: Can state finish what it started?." The story concluded:
Critics say the project will continue to get more expensive as inflation and higher construction costs factor into the later phases. Plus, they say, the cost of acquiring land in more urban areas such as Indianapolis will add to the price.

INDOT declined to place a price on the overall project. Tokarski's group has estimated at least $4 billion.

Six years after then-Gov. Frank O'Bannon's administration settled on the final route for the I-69 extension, supporters argue that whatever the final cost, the project is worthwhile. It will connect Evansville to Indianapolis through a direct interstate route, generate construction jobs and create new businesses along the corridor.

"I-69 is about more than convenience," Ellsworth said. "It's about bringing jobs and economic development."

Opponents hold out hope of stopping it.

[Thomas Tokarski, president of Citizens for Appropriate Rural Roads, a leading I-69 opposition group] and John Smith, an I-69 critic who formed the opposition group Count Us, say the highway is unnecessary and is motivated by political pandering to the Evansville region. They also say it has harmful consequences: the elimination of 4,500 acres of farmland, 2,000 acres of forest, 400 homes and 125 businesses.

Both said their aim to undermine the highway's future rests on costs.

"The state has always pushed ahead and tried to make this look like a done deal, but it's not," Smith said. "They won't have the resources to build it."

Daniels' administration has its own message.

"The governor is committed to this project," Jankowski said. "It's essential to southwest Indiana and the state as a whole."

This Sept. 15, 2007 ILB entry quoted a story from the Evansville Courier & Press that began:
Opponents of the route for Interstate 69 from Evansville to Indianapolis want the state to consider a route using existing roads — U.S. 41 to Interstate 70 near Terre Haute. They are asking a federal judge to order the state to re-evaluate its route options and reconsider the indirect route it previously rejected.
The federal judge, David Hamilton, ruled Dec. 11, 2007 "against environmentalist plaintiffs and in favor of state and federal officials in deciding the new-terrain route of Interstate 69 from Evansville to Indianapolis can proceed."

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Indiana Government

Courts - "Judge rules blogger's identity must be revealed"; differing viewpoints

The Reporters Committee for Freedom of the Press site has this brief story:

A blogger lost his bid to keep his identity secret after a judge in New York City ruled that a fashion model had established a legitimate defamation claim against the blogger.

Establishing a legitimate underlying claim is necessary under New York rules of discovery before a subpoena to reveal an anonymous speaker will be enforced, according to the court.

The blogger had created a site called "Skanks in NYC," and had featured model Liskula Cohen in several postings. One posting labelled her a "psychotic, lying, whoring ... skank."

The blogger had argued that the comments should be understood as opinion and hyperbole, and thus not stating anything factual that could be the subject of a libel claim.

But Judge Joan Madden disagreed. The use of the words as captions to "sexually provocative" photographs of the model reinforce the sexual overtones of the words, Madden held, and thus "the words 'skank,' 'skanky' and 'ho' carry a negative implication of sexual promiscuity, and as such as resonably susceptible of a defamatory connotation and are actionable."

Because Cohen had established the basis for a libel suit, the judge ordered Google, which had hosted the blog through its blogger.com site, to reveal the identity of the blogger.

The RCFP also provides a link to the trial court's decision.

ABC's Good Morning Amercia had a feature on this ruling this morning, told from the model's point of view. Here is the accompanying story by Rich McHugh and Noel Hartment, headed "Model Liskula Cohen Wins Court Battle with Google to Learn Blogger's Identity."

Here are some RCFP links to earlier stories on anonymous commenters. The ILB also has been following this topic. A search for the word "anonymous" will turn them up (unfortunately along with a number of unrelated entries containing the word.)

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Courts in general

Ind. Law - "IPS wants to put an end to students' sexting"

Ken Kosky's NWI Times' "It's the Law" column June 15th, looked at "sexting" -- the ILB entry includes links to several earlier entries on the topic. Also of note is this March 27th ILB entry.

Today Andy Gammill has a front-page Indianapolis Star story headed "IPS wants to put an end to students' sexting." Some quotes:

Indianapolis Public Schools is drafting a new policy to ban -- and also warn parents about -- something that didn't exist even a few years ago: sexting.

The district wants to take a strong stand on students sending sexual images of themselves or others from cell phones while at school, said Barry Olshin, a central office administrator who headed a committee on the topic.

Many parents, Olshin said, don't know that their teens may be sending nude or other sexual images of themselves and don't realize the students might be committing a crime if they pass on pictures of others.

"We have been concerned about it for quite a while," he said. The district wants "parents to understand exactly what the law is and what the possible consequences are."

The School Board will consider a formal policy banning sexting and a warning to parents at a committee meeting at 5:30 p.m. today and likely will adopt a policy next month.

The new policy is being driven, in part, by cases the district has confronted, including one high-profile incident last year at Marshall Community School where students passed around a video of a girl secretly taped with a cell phone while she was having sex. In addition, the Indiana School Boards Association has recommended that districts address the issue. * * *

A survey last year by the National Campaign to Prevent Teen and Unplanned Pregnancy found that about a third of teenage boys and a quarter of teen girls say they've had private nude or semi-nude images of others shared with them.

Depending on the students involved and their ages, teens involved in sexting could be charged with possession or distribution of child pornography.
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Rocky Grismore, principal at Manual High School, said sexting has become an issue in the past few years as more students own cell phones with cameras.

He estimates that it comes up several times each school year, especially when students fight about images that were meant to be seen by only one person or a few people.

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Indiana Law

Courts - "Astor Trial Plods On, Trying the Patience of Many "

Adding to this long list of earlier Brooke Astor estate trial entries, this story, by A. G. Sultzberger and John Eligon was in the August 17th NY Times. It begins:

The Astor trial, three months in, had bogged down once again.

With the jury out of the room, John R. Cuti, a defense lawyer, voiced what has become a common complaint by many people in the courtroom: He accused the prosecution of taking too long to make a point.

“I didn’t realize you were my time-management consultant,” Joel J. Seidemann, an assistant district attorney, fired back during the exchange last month.

“You could use one,” snipped Mr. Cuti.

Much like the woman at the center of it, the Astor trial has had a life longer than anyone could have reasonably expected. After crawling through 72 witnesses during 17 weeks of testimony — longer than the whole trial was supposed to take — the prosecution is expected to wrap up its case on Tuesday, leaving lawyers to debate whether the avalanche of information has advanced the case or obscured it.

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Courts in general

Courts - More on "Two Kentucky diet-drug lawyers permanently disbarred"

Updating this Oct. 24, 2008 ILB entry, that headline wasn't the half of it. This story yesterday from the Lexington Herald-Leader, reported by Beth Musgrave, is headlined "Fen-phen attorneys sentenced to decades in prison: 25 years for Gallion, 20 for Cunningham." The story begins:

COVINGTON — Two disbarred lawyers convicted of taking millions of dollars from their former clients are likely to spend much of their remaining lives in a federal prison.

U.S. District Judge Danny Reeves sentenced William Gallion, 58, to 25 years in prison and Shirley Cunningham Jr., 54, to 20 years in prison on Monday after a nearly daylong sentencing hearing in federal court in Covington.

Both sentences were less than what prosecutors had recommended for the two men, who were convicted in April of taking about $94 million from a $200 million fen-phen settlement that should have gone to their former clients in a 2001 Boone Circuit Court case.

Also yesterday, Brett Barrouquere of the Associated Press had this story, headed "Attorneys Convicted Over Diet-Drug Settlement Sentenced to Jail, Ordered to Pay $127 Million."

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Courts in general

Ind. Decisions - "Indiana Supreme Court asked for clarity on local sex offender restrictions"

"Ruling in Plainfield's case considered key for Indiana communities with similar rules" was the headline to a story Sept. 25, 2008 quoted in this ILB entry. The Sept. 24th Court of Appeals opinion was in the case of John Doe v. Town of Plainfield, Indiana.

Doe's petition for transfer was filed Oct. 23, 2008. The Supreme Court has not yet acted on the petition.

Charles Wilson of the AP has written a comprehensive story on the appeal effort. The Louisville Courier Journal has a complete version of the story, dated Aug. 18th. Some quotes:

The Indiana Supreme Court has been asked to prevent an Indianapolis suburb from banning sex offenders from public parks in a case that could expand a trend of state court rulings finding constitutional problems with restrictions on sex offenders.

The American Civil Liberties Union of Indiana appealed a state Court of Appeals ruling that upheld Plainfield's ban last September. So far the high court hasn't said whether it will hear the case brought by a sex offender listed only as John Doe in court documents.

The case could join a handful of recent Indiana rulings on laws that restrict sex offenders' activities after they've done their time, including one in Jeffersonville.

The Jeffersonville case is Eric Dowdell v. City of Jeffersonville. See this June 10th ILB entry. More from Wilson's story:
Last month, the Supreme Court ruled that a state law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center could not be used to force a sex offender to move from a home where he had lived for 20 years. In April, the high court overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state's Sex Offender Registration Act was passed.

And in the Jeffersonville case, the Supreme Court has been asked to review a Court of Appeals ruling in June that found Jeffersonville officials unconstitutionally applied a park ban against a man who no longer was required to register as an offender.

Joel Schumm, a professor at the Indiana University School of Law in Indianapolis, said Indiana appears to be more willing to consider such cases than other states where similar bans are generally upheld.

“The court's shown a willingness to take a hard and thoughtful look at these kinds of cases,” he said.

Schumm said the ACLU of Indiana is simply asking the court to take the “next step” in restricting such ordinances by finding that Plainfield's ban also violates a state constitutional prohibition on excessive punishment.

Besides arguing that the ordinance retroactively increased the penalty for the plaintiff's original offense, the ACLU contends that the use of public parks is a constitutionally protected “core value” that all citizens have the right to enjoy unless they forfeit that right by committing a crime in a park.

The Supreme Court decision was State of Indiana v. Anthony W. Pollard, from July 1st. See this ILB entry from July 4th for background. More from the AP story:
Supporters of similar bans argue the ordinances are needed to protect children because sex offenders have a high risk of repeat offenses. Opponents like the ACLU argue that the bans often unconstitutionally continue to punish individuals who already have served prison sentences and probation. * * *

The plaintiff in the ACLU case was convicted in 2001 for child exploitation and possession of child pornography. He was released from probation in August 2004. He was visiting the Splash Island water park with his young son in June 2005, when police warned him not to return because he was listed on the sex offender registry.

“Our view is you can go anywhere you want to go, just not the park,” [attorney Mel Daniel, who handled the appeal for Plainfield] said.

Falk countered: “There are lots of public places. Do we ban people from sidewalks? Do we ban people from public buildings?”

The Supreme Court's decision in the case could affect other Indiana communities. Officials in Lebanon, about 25 miles northwest of Indianapolis, are contemplating a park ban [ILB -see this entry from July 16th], and the ACLU has put its lawsuit on hold against the Indianapolis suburb of Greenwood, which bans people convicted of certain sex-related and drug-related offenses from its parks.

More litigation will likely ensue until the high court clarifies the law, and it should “settle the law so that every community in Indiana will understand that the law is settled,” the ACLU said in court documents.

The Plainfield case has been awaiting transfer to the high court for nine months, which is unusually long, said Schumm, the university professor. That might indicate the court is preparing an opinion or having trouble agreeing on what to do, he said.

If the Supreme Court doesn't hear the case, the Court of Appeals ruling upholding Plainfield's ordinance stands. If it does hear the case, the Supreme Court could reverse, uphold or modify the decision.

For more, see this Oct. 31, 2008 ILB entry and this one from Sept. 25, 2008, both headed "Ruling in Plainfield's case considered key for Indiana communities with similar rules", quoting an Indy Star story.

Today Sophia Voravong of the Lafayette Journal Courier has this story, headed "Plainfield case may clarify rules for Ind. sex offenders." Some quotes:

A Supreme Court decision could expand on a series of recent rulings that found constitutional problems with various restrictions on convicted sex offenders.

Several rulings dealt with legislation, passed in 2006, that prohibits offenders against children from living within 1,000 feet of a school, public park or youth program center.

The Supreme Court last month found that the residency restriction violated the Indiana Constitution by retroactively punishing a Blackford County sex offender.

In February 2000, Lafayette banned a three-time convicted child molester from all city public school and park properties.

This came after the man, identified only as John Doe in court documents, admitted during a group therapy session that he had visited Murdock Park, watched children and had sexual fantasies.

Doe filed a lawsuit on grounds that the ban violated his First Amendment rights. The 7th Circuit Court of Appeals later ruled in Lafayette's favor.

It's unclear whether a Supreme Court decision in the Plainfield case would have any impact on Lafayette's John Doe. The ban was related only to Doe as an individual, Mayor Tony Roswarski said Tuesday.

City attorney Ed Chosnek said Lafayette has a trespassing ordinance that serves as a guideline when deciding if someone will be banned from public parks.

The ILB last wrote about the 7th Circuit's City of Lafayette decision on May 5th, in an entry headed "The tricky sex offender case that could trip up one of the judges on the short list to replace Souter."

Posted by Marcia Oddi on Wednesday, August 19, 2009
Posted to Ind. App.Ct. Decisions

Tuesday, August 18, 2009

Ind. Decisions - Transfer list for week ending August 14, 2009 not yet available

Still waiting on the Clerk's Transfer List for the week ending August 14th.

As noted in this entry from August 14th: (1) one transfer was granted last week; and (2) there was no transfer list for the week ending August 7th.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Indiana Transfer Lists

Environment - "'Chicken underground' emerges in Indiana"

Bob Scott reports in the Indianapolis Star:

Gay-Ellen Stulp and Stephany Miskunas are lobbying the Lafayette City Council to allow them to keep pet chickens at their homes in the historic Highland Park neighborhood.

Stulp said she wants city council members to amend the ordinance that forbids having chickens in the city. The city council's Public Health Welfare and Safety Committee plans to consider the matter. * * *

Many cities allow urban chicken farming, including Indianapolis, St. Louis, San Francisco, Ann Arbor, Mich., and Madison, Wis.

Restrictions are placed on the chicken lovers in most of those cases, though. For example, in most cases, hens are allowed but not roosters, only three or four chickens are permitted at each household, and chickens must be kept from leaving the property.

The urban chicken movement has businesses that sell equipment and offer tips for raising the birds. * * *

Stulp said backyard hobbyists are propagating the heirloom varieties of chicken.

"This is part of the 'back to the earth' movement," said Stulp, an Eli Lilly chemical engineer. "It's a harmless hobby.

"After the ordinance was changed in Madison, Wis., there are now 150 families that have chickens."

I was unaware that I legally could raise chickens here in downtown Indianapolis.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Environment

Courts - "Va. Rushes To Address Ruling on Analysts: Drug-Case Demands Have Strained State Lab"

Still pending before the Indiana Supreme Court are two cases which may turn on the SCOTUS ruling June 25th in the case of Melendez-Diaz v. Massachusetts. For details, see this June 24th ILB entry.

The ILB has had a long list of entries on the Melendez-Diaz decision and its implications.

Add to that list this lengthy August 18th story in the Washington Post, reported by Tom Jackman. Some quotes:

In July, the month after the Supreme Court ruled that experts' signed certificates alone are not enough to prove that suspected illicit drugs really are illicit drugs, defense attorneys in Virginia subpoenaed drug analysts 925 times. In July 2008, that number was 43.

Officials with the state's Department of Forensic Science said that during the same month, their examiners spent 369 hours traveling to or testifying in courthouses across the state. In the previous 11 months, the examiners spent 230 hours going to court.

The courts committees of Virginia's General Assembly will start work Tuesday on emergency legislation designed to help the state respond to the Melendez-Diaz v. Massachusetts ruling, in which the Supreme Court said that drug or alcohol analysis certificates are "testimonial" and defendants are entitled to cross-examine the person who performed a drug or breath test. On Wednesday, the General Assembly will meet in a special session called by Gov. Timothy M. Kaine (D) specifically to respond to the impact of the ruling.

Among the proposals the legislature will consider:

-- Delete the requirement that prosecutors prove that a breath-test machine has been inspected and calibrated within the past six months. The machines must still be inspected every six months, and defendants can still challenge the machine's validity, but the inspection record would be designated a "business record," which Melendez-Diaz author Justice Antonin Scalia wrote "may well qualify as nontestimonial records" not subject to cross-examination.

-- Curb the right to a "speedy trial" when prosecution witnesses, such as lab analysts, are not available to testify, up to 90 days for those in jail and 180 days for those not in jail.

-- Require defense attorneys to formally object to a lab or DWI certificate in advance, and if they do, prosecutors must then use lab analysts as live witnesses in proving their case, to conform with Melendez-Diaz. Virginia law now forces the defense to call the analyst after his or her certificate has been admitted.

Although the new legislation might provide more breathing room for the state lab, legislators acknowledge that it does not address their most pressing need: more analysts, to examine not only drugs but also DNA, blood and other crime-scene evidence that defendants are challenging more frequently. That will have to wait until the General Assembly's regular session in January, by which time authorities think they will have a better idea of how this week's changes will affect the need for live testimony by the state's 160 scientists.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Courts in general

Ind. Decisions - One Indiana case decided by 7th Circuit today; plus an Illinois case of interest

In U.S. v. Foster (SD Ind., Judge Young), a 6-page opinion, Judge Cudahy writes:

Darryl Foster pleaded guilty to violating the federal Gun Control Act of 1968, 18 U.S.C. § 921 et seq., which prohibits convicted felons from possessing a firearm. The district court enhanced Foster’s sentence pursuant to the Armed Career Criminal Act (ACCA) because it found that he had three prior violent felony convictions and that he used his gun in connection with the commission of a violent crime, to wit: criminal recklessness. Foster has affirmatively waived any challenge to the ACCA enhancement, and the argument that he does make on appeal is frivolous. We therefore affirm.
In Hanes v. Zurick, et al (ND Ill.), a 13-page opinion, Judge Wood writes:
Stephen Hanes sued the Village of Grayslake, Illinois, and eleven officers of its police department, alleging that the officers denied him—and only him—equal protection of the law, solely for reasons of personal animus. Relying on Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), the district court denied the officers’ motion to dismiss, which sought dismissal both on the basis of qualified immunity and for failure to state a claim. Under Hilton, a plaintiff states such a claim by alleging that “the police decided to withdraw all protection . . . out of sheer malice.” Id. at 1007. Focusing on their qualified immunity theory, the officers filed this interlocutory appeal, in which they invite us to reconsider Hilton in light of the Supreme Court’s holding in Engquist v. Oregon Dep’t of Agriculture, 128 S. Ct. 2146 (2008), that no class-of-one equal protection claim can be made in the public-employment context. We reject the officers’ invitation. Based on the significant differences between public employment and policing, we hold that Hilton remains good law after Engquist. We therefore affirm.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Myers Blaker v. Ronald Young, II, M.D., and Indianapolis Neurosurgical Group, a 14-page, 2-1 opinion, Judge Friedlander writes:

Myers Blaker appeals from the trial court's grant of summary judgment in favor of Ronald Young, II, M.D. and Indianapolis Neurosurgical Group (ING) (collectively, Dr. Young) on Blaker's claim for medical malpractice. Blaker presents two issues for review: 1. Did the trial court properly grant summary judgment? 2. Did the trial court abuse its discretion in denying Blaker's request to supplement his designated evidence with evidence relating to the issue of causation? We affirm. * * *

BAKER, C.J., concurs.
RILEY, J., dissenting with separate opinion. [which concludes] In sum, there is no evidence that Dr. Young identified the right PICA; and the inferences from the record, the operative note, the notation of identification of the left PICA and the silence as to the right PICA identification create a genuine issue of material fact as to whether Dr. Young complied with the standard of care. Therefore, I would reverse the trial court and remand for further proceedings.

In Anthony Street v. State of Indiana , a 5-page opinion, Judge Vaidik writes:
Anthony Street appeals his conviction for Class B misdemeanor public intoxication. Specifically, Street contends that the evidence is insufficient to support his conviction because the State failed to prove that he was knowingly in a public place at the time of his arrest for public intoxication. Concluding that a knowing mens rea is not an element of the offense of public intoxication, we affirm Street's conviction.
NFP civil opinions today (1):

In In re the marriage of: Cheryl Groseclose v. Lance Groseclose (NFP), a 7-page opinion, Cheif Judge Baker writes:

Appellant-respondent Cheryl Groseclose, by her next friend and guardian, Rita Dalbey, appeals from the trial court’s order dissolving the marriage of Cheryl and appellee-petitioner Lance Groseclose and dividing the marital estate. Cheryl argues that the trial court erred by declining to award her spousal maintenance and by neglecting to consider tax consequences of its award to her of a 401(k) account. Finding no error, we affirm. * * *

The sole evidence—aside from the fact that Cheryl is unemployed—to which she directs our attention in support of a conclusion that she is incapacitated is a document appointing Dalbey to be Cheryl’s guardian in Illinois. The document is signed by a clerk, not by a judge. It describes Cheryl as an “alleged disabled Person,” implying that a finding of disability had not actually been made. The document is one paragraph and contains no facts whatsoever about Cheryl and her alleged disability. Though Cheryl alleges that an Illinois court has made a finding of incapacity, she has never provided a document signed by a judge that, in fact, reaches such a conclusion.

She argues that we must give full faith and credit to judgments of courts in sister states. While that may be true, the only judgment provided to us is a guardianship; not a finding of incapacity. And even if we were to assume that a finding of incapacity is implied by the guardianship, there is absolutely nothing in the record tending to establish that whatever unnamed incapacity Cheryl suffers from meets the statutory criteria set forth above. In other words, even if she is considered to be disabled by Illinois law, there is no evidence in the record that the disability materially affects her ability to support herself.

NFP criminal opinions today (3):

Susan Miller v. State of Indiana (NFP)

Ocie Brasher v. State of Indiana (NFP)

Thomas K. Patterson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "A call for a moratorium on executions"

Updating this ILB entry from August 9th, Jon Murray has a story today in the Indianapolis Star headed "Activists again seek moratorium on death penalty in Indiana." Here are some quotes from the later part of the lengthy story:

Marion County Prosecutor Carl Brizzi said Indiana's rules for death-penalty cases already protect defendants by providing top-notch lawyers, with costs shared by counties and the state.

"Whether or not there should be a death penalty is for the people and the legislature to decide," Brizzi said. "In this state, there are more than adequate protections in place that ensure that a defendant gets a fair trial and multiple appeals."

But the costs -- estimated by a state panel in 2002 at an average of $624,000 for defense and appeals, eight times what it costs when the most severe option is life imprisonment without parole -- often strain government budgets.

In western Indiana's rural Parke County, county officials increased the income tax by 0.25 percentage point in 2007 to cover the costs of a death-penalty trial that ultimately ended with a guilty plea and a life sentence. * * *

Thirty-five states have death penalty statutes.

"I think states are now willing to look at the larger question, given its costs and how little we're using it," said Richard Dieter, executive director of the Death Penalty Information Center, based in Washington. "Prosecutors are using it sparingly, even in Texas."

Indiana's governor has said he has moral reservations about capital punishment but thinks it's fitting for the worst crimes. * * *

Among board members and official advisers to the [Indiana Coalition Acting to Suspend Executions, or InCASE] are former Kernan administration officials Tom McKenna and Jon Laramore. Another, community activist Tim Streett, supported then-Gov. Kernan's decision in January 2005 to commute the death sentence of his father's killer to life imprisonment.

Cost issues in particular, Laramore said, could resonate with people who otherwise support capital punishment.

Here are some earlier ILB entries on the monetary cost of the death penalty:
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...

Posted in The Indiana Law Blog on June 27, 2009 09:54 AM

Law - More on "Citing Cost, States Consider End to Death Penalty"

Updating this ILB entry from Feb. 25th, the Washington Post has a similar story today by Deborah Hastings of the AP. The long story begins:-- After decades of moral arguments reaching biblical proportions, after long, twisted journeys to the nation's...

Posted in The Indiana Law Blog on March 7, 2009 12:39 PM

Law - "Citing Cost, States Consider End to Death Penalty"That is the headline to this lengthy NY Times story today by Ian Urbina. Some quotes:When Gov. Martin O’Malley appeared before the Maryland Senate last week, he made an unconventional argument that is becoming increasingly popular in cash-strapped states: abolish...

Posted in The Indiana Law Blog on February 25, 2009 08:01 AM

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Indiana Courts

Ind. Decisions - Brief filed in response to AG's July 27th petition for rehearing in David Camm case

Updating this ILB entry from July 28, which includes a link to the AG's petition for rehearing, and this entry from August 2nd, today Harold J. Adams of the Louisville Courier Journal reports:

The Indiana Supreme Court ruled clearly and correctly when it overturned the triple-murder conviction of former Indiana State Trooper David Camm and should stick with that decision, Camm's lawyers have argued in a brief filed with the court.

The brief submitted Friday came in response to a July 27 petition from the Indiana Attorney General's office asking the court to reconsider its ruling that struck down Camm's 2006 conviction of murdering his wife Kimberly Camm and their children, Bradley, 7, and Jill, 5, in the garage of their Georgetown home in 2000.

“There's really no reason for a rehearing,” defense attorney Stacy Uliana said in an interview Monday. “Everything's been thoroughly considered and argued and briefed almost to exhaustion and they haven't presented anything new.”

In its 4-1 decision in June, the Supreme Court ruled that Floyd County Prosecutor Keith Henderson should not have been allowed to argue that Camm's motive for shooting his family was to cover up alleged sexual molestation of his daughter.

“The state built its entire theory on the molestation” as well as hearsay testimony from a friend of Kim Camm that she was going to meet her husband at home between 7 and 7:30 p.m. on the night of the murders, David Camm's lawyers wrote. “If the molestation or hearsay goes, the house of cards falls.” * * *

Camm has twice been convicted of the killings, but both convictions were overturned. The Indiana Court of Appeals, in rejecting the first conviction, cautioned the prosecution about relying on the molestation claim.

“That appellate court told them, ‘This is very shaky ground. Do not go there.' And they went there anyway because they don't have a case without it,” Uliana said. * * *

After Camm's retrial ended, jurors took the unusual step of calling a news conference where they cited the molestation claim as a primary reason they convicted Camm. But one of the jurors wrote a letter to the Supreme Court last month claiming that evidence wasn't an important factor.

Juror Darlene Short wrote in a July 2 letter that “these injuries were not the basis of the guilty verdict. … I strongly encourage the Indiana Supreme Court to hold a second hearing … due to the overwhelming admissible evidence that points to Camm's presence at the time of this tragic crime.”

But Supreme Court Administrator Kevin Smith, in an Aug. 13 response to Short, said the rules governing judicial conduct and appellate procedure “prevent the justices from considering letters from jurors or other persons interested in the case.” Smith concluded, “your letter has not been and will not be considered by the court.”

The ILB would like to obtain a copy of the Camm brief for posting.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Judge Morton retired: Have garden, will travel"

Sarah O. Wilson's lengthy Aug. 15th story in the Rochester Sentinel begins:

After 30 years as judge of Fulton Circuit Court, a retired Doug Morton is finding time for himself these days, and it usually includes his grandchildren, gardens, golf game or some judicial assignments.

His new life seems to please him.

Morton, 63, took the bench on Jan. 1, 1979, and chose to end his career after three decades of deciding "disputes between individuals." A. Christopher Lee succeeded him Jan. 1.

Morton continues to serve the state as a senior judge, which he describes as somewhat like a substitute teacher. He needs to serve at least 30 days a year to receive state health insurance. He also continues the special judge assignments he received before retirement and serves as a hearing officer at the behest of the state Supreme Court.

"I have elected not to go back into private practice," he said. "I've been gone (from that situation) 30 years. That's a long time."

If called upon, he could mediate legal disputes. He explained that the goal in any dispute is to settle matters outside of the courtroom; inside "the loser loses more than the winner wins," he said.

Later in the story, this interesting section:
Morton said the judiciary experienced numerous changes throughout his career. Among them:

• "Computers changed everything. The sheer volume of work you can do." Communication between everybody, including the Supreme Court, is substantially improved. "Having computers allows you to spend more time judging and less time on administration."

• The creation of a Fulton Superior Court in 1993 took some pressure off Circuit Court. For example, felonies, not traffic-related, now are divided between the two courts. Circuit Court still has all juvenile cases.

• The addition of public defenders. "Instead of judges calling and asking a local attorney to take a case, we have a professional probation staff. I (was) very proud to be associated with the staff there. They are a marvelous set of people."

• A rise in self-representation. "Two-thirds of the (150 to 160) dissolutions (per year) don't have lawyers representing them. If it (the divorce settlement) is agreed to, it's OK, and I (could) help them make it legal. If it is not agreed to, they leave the courtroom and are not divorced."

• Fewer jury trials. Between 1979 and 1995, Morton averaged 16 jury trials a year and four to six of those were civil cases. More civil cases are resolved before trial, "probably" due to mediation.

• Gender balance. "When I took the bench, there were only two female judges statewide. Now more than 25 percent of the state judiciary is female. That truly has changed, big change."

Finally, Judge Morton recounts some of his memories:
• Murder trials. Larry Williams' was his first one, in 1980. "The first one is the most memorable." He said he handled four murder trials and another nine or 10 pleas during his career. Williams, 21, of Plymouth was convicted by a 12-person jury May 9, 1980, of murder in connection with the death of Claude Yarian, a Bourbon store owner, on March 6, 1979. Morton sentenced him to 130 years in prison, which the Indiana Supreme Court ordered him to modify to 110 years to do away with a 20-year sentence imposed for armed robbery.

• His shortest jury trial lasted one day. "We seated the jury, heard evidence and took a verdict before 3."

• His longest sequence of jury work lasted almost three months in 1994, with a six-week trial "right on top of" a five-week trial.

• The Caston earring case. "That was closer than people thought. The legal issues are right from the Bill of Rights, the Ninth Amendment, which speaks to personal appearance. It doesn't specifically say that, but the Supreme Court has taken it there." The trial was "high profile," he said. In 1991, Jimmy Hines, then a fourth-grader at Caston schools, wore a stud earring to school. When Caston instituted a ban on such behavior by elementary students in 1992, Hines continued to wear the earring, and Caston threatened his expulsion for doing so. The Indiana Civil Liberties Union sued on his behalf. On Sept. 30, 1993, Morton ruled Caston could impose a dress code based on "community standards" that bans earrings on boys. ICLU argued that Hines had a right to self-expression and individual identity. In February 1996, the Supreme Court accepted transfer, heard oral arguments and refused transfer of the Indiana Court of Appeals decision, which upheld Morton's decision.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Indiana Courts

Ind. Courts - "Defendant will serve prison time under credit restriction, a recent Indiana law that states certain crimes can't receive the usual time off for good behavior"

James D. Wolf Jr. reports in the Gary Post-Tribune, in a story that begins:

VALPARAISO -- A man who moved from Georgia to Portage to live with a single mother he met on the Internet received an 18-year sentence for child molesting, plus another 18 years of probation after that.

Christopher C. Carmon, also known as Christopher C. Wessels, 41, will serve prison time under credit restriction, a recent Indiana law that states certain crimes can't receive the usual time off for good behavior, which could be 50 percent. Those under it must serve about 85 percent of their time at least.

"Our (Indiana) Supreme Court says the maximum sentence is to be saved for the worst of the worst. In my over 20 years on the bench, this comes close to the worst," Judge Roger Bradford said before imposing the sentence Monday.

Posted by Marcia Oddi on Tuesday, August 18, 2009
Posted to Indiana Courts

Monday, August 17, 2009

Ind. Courts - "Dearborn Judge Introduces New Court For Addicts"

Southeast Indiana's Eagle News 99.3 FM has this story today by Mike Perleberg:

(Lawrenceburg, IN) - A Dearborn County judge has decided to use a new, jail-free method of rehabilitating drug addicts.

Judge Jon ClearyDearborn Superior Court I Judge Jon Cleary says the Accountability, Change, and Community Court, also called A.C.C. Court, is worth trying as inner-city drugs like cocaine and heroin spread into rural areas.

Cleary says the signs are apparent in southeast Indiana. The Dearborn County Law Enforcement Center's jail is currently housing over 260 inmates. There have also been over 40 county citizens that have died of drug overdose in 2009.

The A.C.C. Court offers an alternative to incarceration for non-violent, addicted, and repeat offenders says Cleary. The minimum 52-week program uses intensive judicial supervision, continuous drug testing, sanctions, incentives, and treatment to help break convicts' addictions to keep them from cycling through the judicial system again.

Judge Cleary says he implemented the A.C.C. Court with the goals of "lower recidivism rates, a safer community, treatment of addiction, lower costs for citizens, and most importantly, to save lives."

Posted by Marcia Oddi on Monday, August 17, 2009
Posted to Indiana Courts

Law - Prof. Dawn Johnsen to teach course this semester at IU Maurer School of Law

So reports The Blog of Legal Times this afternoon. A quote:

Dawn Johnsen is making a tentative return to the classroom after seven months of waiting for the Senate to confirm her to one of the most politically sensitive posts in the Justice Department.

Johnsen, nominated in January to head the Office of Legal Counsel, will teach a seminar this fall at Indiana University’s Maurer School of Law. She will commute weekly from Washington to Bloomington, Ind., while she continues to wait for confirmation, said Debbie O’Leary, a spokeswoman for the law school. * * *

Johnsen had hoped to begin months ago at the Office of Legal Counsel, even moving with her family to Washington over the summer, friends and colleagues say. She worked in the Office of Legal Counsel during the Clinton administration, serving for a year as acting head of the office, and has taught at Indiana University since 1998.

“Since she’s still on faculty, why not teach?” O’Leary said.

The seminar, which Johnsen has taught before, is aimed at 2Ls and 3Ls. It’s titled “Sexuality, Reproduction and the Law.” According to the course description, students will “explore governmental regulation of sexuality and reproduction in the United States. We will focus on regulation aimed at sexual activity, reproduction and sexual orientation, with particular attention to the constitutional protections afforded in those areas.”

Posted by Marcia Oddi on Monday, August 17, 2009
Posted to General Law Related

Ind. Law - Golf carts update

Starting off with this eye-catching story from the August 15th Gary Post Tribune, reported by Jon Seidel:

GARY -- Police arrested a man this week for driving a golf cart down a city street while intoxicated.

Cpl. Gabrielle King said officers discovered John P. O'Hara, 23, driving a white golf cart at Ironwood Avenue and Lawrence Street on Wednesday, blocking the path of a truck that was trying to pass.

King said an officer activated a siren and followed the golf cart, but the driver wouldn't pull over. She said an officer saw the cart's three occupants dump a beverage from red plastic cups.

Police said they noticed a strong odor of alcohol on O'Hara's breath and clothing, and they noticed his eyes were watery and bloodshot.

O'Hara then told officers he had a little to drink, "maybe a 12-pack."

An officer asked O'Hara to take a portable breathalyzer test, on which he registered a 0.289 percent blood alcohol content. The legal driving limit in Indiana is 0.08 percent.

Adding to the long list of earlier ILB golf cart reports, here a some recent stories:

Posted by Marcia Oddi on Monday, August 17, 2009
Posted to Indiana Government | Indiana Law

Ind. Decisions - Interesting procedural decision in Illinois case by Judge Tinder

In Eskridge v. Cook County (ND Ill.), a 9-page opinion, Judge Tinder writes:

After their daughter tragically died of pneumonia, Lanell and Margaret Eskridge sued two Chicago health care facilities for medical malpractice. The case developed into multiple actions in both Illinois and federal court, and, amid the procedural complexity, the Eskridges’ counsel made a critical error. In the federal district court, counsel obtained a voluntary dismissal order that effectively precluded the Eskridges from pursuing their lawsuit. The Eskridges moved for relief from that order under Fed. R. Civ. P. 60(b), but the district court denied their motion. On appeal, the Eskridges face the formidable challenge of showing that the court abused its discretion in denying relief under Rule 60(b). We conclude that the Eskridges have not met this challenge. * * *

We do not say that the type of legal error that occurred here, based on the pitfalls of parallel federal and state lawsuits, could never justify relief under Rule 60(b). Cf. Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (characterizing the voluntary dismissal of a federal habeas petition that could not be refiled as a “mistake” within the meaning of Rule 60(b)(1)). Even here, other “relevant circumstances” highlighted by the Eskridges, including their sunk litigation costs and interest in reaching the merits of their case, might have convinced a different district judge to excuse their counsel’s procedural error. See Webb, 147 F.3d at 622 (describing the equitable nature of relief under Rule 60(b)). * * *

Bottom line, the circumstances in support of the Eskridges’ Rule 60(b) motion were not so compelling that the district court abused its considerable discretion in denying relief. See Castro, 214 F.3d at 935 (Although “the circumstances of the present case may arguably constitute excusable neglect . . . they do not compel that conclusion.”); Webb, 147 F.3d at 622 (“The district court was not obliged to relieve [the defendant] of the burden of a unilateral mistake of law . . . .”). The court’s judgment is AFFIRMED.

Posted by Marcia Oddi on Monday, August 17, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General [argued July 24th], a 19-page opinion, Judge Robb writes:

Subhen Ghosh, a former employee with the Indiana Department of Environmental Management (“IDEM”), appeals the trial court's order affirming a report by the State Ethics Commission (the “Ethics Commission”) that concluded Ghosh violated a provision of the Ethics Code,1 specifically Indiana Code section 4-2-6-9(a), during his employment with IDEM. On appeal, Ghosh raises five issues, which we consolidate and restate as 1) whether the trial court properly concluded Ghosh was collaterally estopped from seeking reinstatement of his employment and 2) whether the trial court properly affirmed the Ethics Commission's decision to impose a monetary sanction. Concluding the trial court properly concluded Ghosh was collaterally estopped from seeking reinstatement and properly affirmed the Ethics Commission's decision to impose a monetary sanction, we affirm in part. However, we also conclude the amount of the sanction imposed by the Ethics Commission is not supported by substantial evidence and therefore remand for additional findings in that regard. * * *

We agree with Ghosh that the Ethics Commission's decision is inconsistent to the extent it concluded his trips were authorized (and therefore not in violation of 42 Indiana Administrative Code section 1-5-12) on the one hand, while on the other hand it calculated his sanction for violating Indiana Code 4-2-6-9(a) by using the total number of miles he traveled during his trips to the gas station and described these trips as “unauthorized.” Id. at 106. Instead, the Ethics Commission should have focused on Indiana Code section 4-2-6-12(1), which authorizes it to impose a sanction for a violation of the Ethics Code in an amount “not to exceed three (3) times the value of any benefit received from the violation.” Ind. Code § 4-2-6-12(1). Because the Ethics Commission's findings and the record fail to explain how Ghosh's sanction of $456.96 is less than or equal to “three (3) times the value of any benefit” he received for violating Indiana Code section 4-2-6-9(a), we cannot say substantial evidence supports the amount of the sanction. Accordingly, we remand to the Ethics Commission for it to either make additional findings explaining how Ghosh's sanction of $456.96 is consistent with Indiana Code 4-2-6-12(1) or, in the alternative, to fashion a sanction that is consistent with the statute and supported by the evidence in the record. See Ind. Code § 4-21.5-5-15 (permitting a court conducting review under AOPA to “remand the case to the agency for further proceedings” where its decision is unsupported by substantial evidence).

In Rita V. Lang v. State of Indiana , one issue addressed is "Whether Lang filed her notice of appeal in a timely manner." Judge Riley writes:

We begin by addressing the State’s contention that Lang’s appeal is untimely, and, therefore, we do not have jurisdiction to consider the merits of this appeal. “A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment.” Ind. Appellate Rule 9(A)(1). “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C. R. 2.” App. R. 9(A)(5).

The State contends that the relevant date for timeliness is January 5, because the trial court orally rendered its sentencing order and order of restitution on that date. * * * Lang contended that January 12 was the relevant date for consideration of timeliness because that was the date when the trial court’s written order was file stamped and entered as reflected in the Chronological Case Summary. In the alternative, Lang contended that the relevant date was January 9, 2009, the date on which the trial court reduced its order to writing and signed it. Lang explained that if her time to file a notice of appeal began on January 9, 2009, the due date would have been February 8, 2009, a Sunday, and, therefore, her notice of appeal would have been due on Monday, February 9, 2009. [which was the date her NOA was filed] * * *

We conclude that the rendition of the trial court’s Final Judgment occurred on January 9, 2009, when the trial court signed the sentencing and restitution orders, not when the trial court explained orally what its intentions were at the close of the sentencing hearing. Therefore, regardless of whether we interpret the January 5th oral statement by the trial court as notice, Lang had thirty days from January 9 to file her notice of appeal. As such, Lang had at least until Monday, February 9, 2009, to timely file her notice of appeal, which she did.

In Jennifer Barber v. State of Indiana , an 11-page opinion, Judge Vaidik writes:
Jennifer Barber appeals her convictions for Class A misdemeanor operating while intoxicated and Class C misdemeanor failure to stop after an accident resulting in property damage. Specifically, Barber argues that the trial court abused its discretion in denying the motion to continue filed on the Monday morning of her bench trial, which was set a mere two months after her arrest, because her defense counsel had located two witnesses that weekend who supported her defense of involuntary intoxication. The trial court denied her motion because the deadline to file the witness list had passed two weeks before. In light of Barber's constitutional right to present a defense coupled with the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, we conclude that the trial court abused its discretion in denying Barber's motion to continue. We therefore reverse the trial court and remand for a new trial. * * *

Barber's defense was involuntary intoxication. Under Indiana law, “[i]t is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the introduction of a substance into his body: (1) without his consent; or (2) when he did not know that the substance might cause intoxication.” Ind. Code § 35-41-3-5. There is obvious prejudice to Barber from not being able to present the testimony of Collier and Mathis. Although Barber testified that she believed she was drugged, Collier would have testified that she believed the same thing happened to her on the evening of October 15, 2008, at the same American Legion. And according to defense counsel, Mathis would have supported both Barber's and Collier's testimony. This is the bolstering testimony of disinterested and objective witnesses. * * *

In light of Barber's right to present a defense, the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, the lack of substantial prejudice to the State, and the resultant prejudice to Barber, we conclude that the trial court abused its discretion in denying Barber's motion to continue and therefore remand for a new trial.

[See also footnote 4 on p. 11, re a second argument: "The right to due process does not include the right to be given a chemical sobriety test in all circumstances. Parker v. State, 530 N.E.2d 128, 130 (Ind. Ct. App. 1988). To hold otherwise would be to transform the accused's right to due process into a power to compel the State to gather in the accused's behalf what might be exculpatory evidence."

NFP civil opinions today (2):

Michelle Smout v. Steven Smout (NFP)

The Invol. Term. of the Parent-Child Rel. of P.B., Jr.; L.M. and P.B. v. Marion Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (4):

Geoffrey L. Lehman v. State of Indiana (NFP)

Milo Walker, Jr. v. State of Indiana (NFP)

Antoine Jefferson v. State of Indiana (NFP)

Samuel V. Fancher v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 17, 2009
Posted to Ind. App.Ct. Decisions

Not Law but Interesting - Illinois Citizens Utility Board

This is cool. I don't think Indiana has an equivalent.

It is discussed in this Chicago Sun-Times story today, headed "Web site helps cell phone users cut costs ."

Posted by Marcia Oddi on Monday, August 17, 2009
Posted to General News

Ind. Law - It's the Law: "Ignoring school bus stops more than infraction"

Ken Kosky's "It's the Law" column in the NWI Times this week looks at school zone speeding and other school laws.

This topic "rang a bell" with me, so I looked back in the ILB archives and, sure enough, the very first of Kosby's excellent columns, published Sept. 1, 2008, dealt with disregarding school bus stop arms.

Today's article talks about school bus arms and other school zone violations in more detail and also touches on firearms and schools:

Area police departments are alerting the public that this is the time of the year when they begin cracking down on people who drive too fast in school zones and who disregard school bus stop arms or crossing guards.

Valparaiso police Sgt. Michael Grennes said most people understand they can be ticketed for speeding in a school zone, but police say many people don't realize that disregarding a school bus stop arm is a misdemeanor, not merely an infraction. In addition, police don't have to witness the offense to charge the offender.

"The bus driver can get the license plate number, vehicle and driver description ... and we can follow up on it," Grennes said.

Portage police Sgt. Keith Hughes said motorists must stop for a school bus stop arm whether they are going the same direction as the bus or the opposite direction. They must stop even if on two-lane roads with a turn lane in the middle or undivided four-lane roads.

Grennes said people think that if they are a few lanes removed from the bus, and if students aren't walking across all the lanes, they don't have to stop. But Indiana law requires motorists to stop because there is always the chance that a child will dart across the road.

Grennes said police also want to highlight two other laws pertaining to school -- bringing weapons onto school property. It is a felony to possess a firearm on school property or a school bus. It is a misdemeanor to possess a knife at school or on a bus. However, knives may be used if authorized by the school and may be kept in secured vehicles. And people who may legally possess a firearm may have it in their vehicle if transporting another person to or from a school or a school function.

Posted by Marcia Oddi on Monday, August 17, 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 8/17/09):

Next week's oral arguments before the Supreme Court (week of 8/24/09):

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 8/17/09):

Wednesday, August 19th

Next week's oral arguments before the Court of Appeals (week of 8/24/09):

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, August 17, 2009
Posted to Upcoming Oral Arguments

Sunday, August 16, 2009

Ind. Courts - More on "ACLU Lawsuit claims Indiana law examiners violate the ADA "

Updating this ILB entry from July 9th, Magistrate Judge Tim A. Baker issued an 8-page order August 8th on Plaintiff's "Motion to Proceed by Anonymous Name and Motion to Seal Affidavit Containing Actual Name." Access it here: JANE DOE, on her own behalf and on behalf of a class of those similarly situated v. THE INDIVIDUAL MEMBERS OF THE INDIANA STATE BOARD OF LAW EXAMINERS, in their official capacities. The Order begins:

Plaintiff is an attorney admitted to practice law in Illinois who wants to sit for the Indiana bar exam. Plaintiff claims that the Indiana State Board of Law Examiners (the “Board”) is violating the Americans with Disabilities Act by subjecting bar applicants with psychological disorders “to elevated questioning and requirements” about their mental health history. Plaintiff has filed a motion to proceed by anonymous name and to seal an affidavit containing her actual name because she fears that she will suffer injury and become stigmatized if her mental health history becomes publicized. For the reasons below, Plaintiff’s motion is denied.

Posted by Marcia Oddi on Sunday, August 16, 2009
Posted to Ind Fed D.Ct. Decisions

Courts - Visteon judge to rule on cutting retiree benefits: Indiana retirees impacted

Randall Chase of the AP had this story Friday. Some quotes:

WILMINGTON, Del. — A Delaware bankruptcy judge is weighing whether auto parts supplier Visteon Corp. can terminate retiree health care and life insurance benefits for thousands of current and former workers.

After a two-day hearing, Judge Christopher Sontchi told attorneys Friday he would consider the evidence and arguments. He gave no indication when he would rule.

"I feel that the record is sufficiently complex and the law is sufficiently complex to require the court to thoroughly review the record," said Sontchi, whose ruling could affect some 6,600 retirees and their families, and about 1,000 future retirees. * * *

About one-third of the retirees are not yet eligible for Medicare, federal health insurance. * * *

"It is, for some, a death sentence," said Susan Jennik, an attorney representing workers who retired from two Visteon plants in Indiana. "Retirees who are receiving cancer treatment or who have heart disease ... are now faced with the termination of lifesaving medical treatment which they will not be able to afford." * * *

The benefits termination would affect retirees from Visteon headquarters in Michigan, the Pennsylvania and Indiana plants, and another in Puerto Rico. The Indiana and Puerto Rico plants have closed; the one in Pennsylvania will shut down by the end of the year.

"I'm disappointed in the system," said Carolyn Spurlock, 59, who worked for 37 years at a Visteon plant in Connersville, Ind. "We don't know what's going to happen from day to day now."

Robert Stark, an attorney representing Visteon's creditors committee, said retirees are due "ample sympathy," but that, unlike the company's creditors, they do not have legally sustainable claims. "This is a legal question pure and simple," he said.

Posted by Marcia Oddi on Sunday, August 16, 2009
Posted to Courts in general

Environment - City of Richmond may soon own contaminated Dana site

Recall these ILB entries from this spring about the Dana site in Angola and how the city was on the hook for millions? A quote from a Fort Wayne Journal Gazette editorial from March 21st:

When Dana left the site at 203 Weatherhead St. in Angola, the company also left behind trichloroethene pollution. The chlorinated solvent is now contaminating ground wells that provide Angola residents with drinking water. IDEM estimates the cost for cleaning up the pollution is at least $5.5 million.

Previously the city, county and Univertical Corp., a company that had nothing to do with causing the pollution but is now operating at the site, each agreed to contribute $1 million toward the cleanup. That leaves the city short $2.5 million.

At the meeting, state officials told Angola Mayor Dick Hickman not to expect the state to pay the difference, though it will chip in a small amount: Money from the 300,000 Dana shares the state expects to receive as part of the bankruptcy settlement will go toward the cleanup. And Angola can get a 20-year no-interest loan from the Indiana Economic Development Corp. * * * State environmental management officials suggested Angola look at raising water or sewer rates to repay the loan from the state.

Now read this story dated August 15th from the Richmond Palladium-Item. Some quotes:
The city of Richmond may own the former Dana Corporation property on Williamsburg Pike by this fall as state and local officials try to hammer out a plan to clean it up and return it to the tax rolls.

The Indiana Department of Environmental Management this year asked city officials to acquire the property from Wayne County so it could work with them to begin testing the site for contamination.

Once the contamination is identified, IDEM would pay for the cleanup, state officials said. Once it's clean, the city could sell it and split any profits with the county to cover unpaid taxes.

"The objective is to have the city act as a stable property owner so we can work to get it cleaned up," said IDEM spokeswoman Amy Hartsock. "After the cleanup is achieved, the goal would be for the property's redevelopment and reuse." * * *

Hartsock said IDEM has money set aside from the Dana bankruptcy for testing and cleanup. She said IDEM officials would focus mainly on cleaning up the land around the former Dana foundry.

"I believe what we're looking at is mostly soil contamination and some ground water contamination. But more study would be needed," she said.

She said the cost of the cleanup would not be known until the testing is complete.

The property is two parcels totaling 44 acres at 2153 and 2175 Williamsburg Pike. The county acquired it when Dana filed for bankruptcy protection and stopped paying property taxes. There are also a number of delinquent weed liens on the property.

Posted by Marcia Oddi on Sunday, August 16, 2009
Posted to Environment | Indiana Government

Ind. Decisions - "Oak Park annexation protestors say attorneys failed their case"

David A. Mann reports in the Jeffersonville News & Tribune:

The plaintiffs in a remonstrance case against Jeffersonville’s Oak Park annexation charge that their attorneys were negligent when they failed to file needed paperwork on time.

Bruce Herdt, the lead plaintiff, has asked the Indiana Supreme Court Disciplinary Commission to investigate the matter. New Albany-based attorneys Derrick Wilson and Debra Andry are named in the complaint.

The Jeffersonville City Council passed an ordinance annexing six areas, including Oak Park, in 2007. State law gives those wishing to protest an annexation 90 days to collect the signatures of 65 percent of those within an annexed area in order to remonstrate. In this case, 90 days from the date of the annexation was the Monday after Thanksgiving 2007.

In his complaint, Herdt says that organizers knew they would need every available day in order to collect the needed signatures.

“We knew and repeatedly informed Mr. Wilson that filing before this date would cut us short by at least four days [because of the holiday] for getting signatures,” Herdt said in the complaint. “Mr. Wilson and Ms. Andry were both very aware of this condition.”

Once the signatures were collected, remonstrance organizers hand-carried them to Wilson’s office at about 11 a.m. that Monday.

He found out the next day that the remonstrance was filed without the signatures attached. Two days later, Wilson filed the signatures as an amendment to the annexation.

Wilson argued those signatures should be valid because the remonstrance was filed on time and the late-submitted signatures should be counted as part of that original filing.

However, Clark County Circuit Court and the Indiana Court of Appeals dismissed the remonstrance after a motion from the city argued that not all the materials were filed on time. The Indiana Supreme Court was petitioned, but would not hear the case. * * *

Wilson explained that he could not comment on the complaint, noting he was bound by attorney-client confidentiality privilege.

Andry could not be reached for comment.

The complaint states that Wilson told organizers that the filing wasn’t made because his office didn’t have time to make copies.

Donald R. Lundberg, Indiana Supreme Court Disciplinary Commission executive secretary, said complaints go through several screening processes before any action would be taken.

If a complaint is believed to be legitimate, a nine-member board will hear from each side. After that — if a complaint is still seen as viable — the commission will file a formal proceeding with the Indiana Supreme Court, he said.

That court ultimately makes the decision about whether and what kind of disciplinary action to take. Complaints made to the commission are confidential. Lundberg could not confirm or deny whether it had been received and would not speculate on punishments.

For background, see this ILB entry from August 16, 2008.

Posted by Marcia Oddi on Sunday, August 16, 2009
Posted to Indiana Decisions

Ind. Decisions - Still more on "Apparently there are all sorts of surprises in the special session budget"

Updating this ILB entry from Aug. 13th, the Fort Wayne Journal Gazette today has a feature on Janes Payne. Some quotes:

James Payne, a former juvenile court judge in Marion County, has been director of the Indiana Department of Child Services since 2005. He spoke with editorial writer Karen Francisco about the department’s efforts in its first years as a state agency. * * *

3 Judge Peter Nemeth from St. Joseph County recently complained about a provision in the budget bill that gives you sole authority to approve out-of-state placements. In your former role as a judge, would you have supported such a change?

When we talk about out of state, there are actually two counties that account for over 85 percent of the out-of-state placements. … Many of our out-of-state placements are not across the border, as many thought they would be. Many of them are placements in Minnesota, in Iowa, in Nevada, Utah and Arizona, where it virtually precludes communication and working with the family.

On balance, this was the right thing to do. I understand while some would criticize it, I would hope that if I were still a judge I would recognize that there are some things that I may be inclined to do that others have an opinion of and – can we talk about these – and try to resolve them so that only those kids who need to be a great distance away and only these kids who have special treatment needs that another state or another facility outside of our state can provide that we don’t.

Posted by Marcia Oddi on Sunday, August 16, 2009
Posted to Indiana Courts | Indiana Decisions | Indiana Government

Saturday, August 15, 2009

Ind. Decisions - "7th Circuit Cuts Off Challenge to Chicago Cell Phone Ban"

The 7th Circuit opinion this week in the case of Gayle Schor et al v. City of Chicago, flagged in this ILB entry from August 13th (3rd case), is the subject of a story today by Lynne Marek of The National Law Journal:

Chicago cell phone users fighting to fend off a city ordinance that bars them from driving and chatting on their phone without a hands-free device have lost another round.

The 7th U.S. Circuit Court of Appeals in a decision Thursday agreed with the U.S. District Court for the Northern District of Illinois that the class action mounting a constitutional challenge to the 2005 city law "has no legs." And by the way, that law also precludes texting and surfing the Internet while driving, the court noted.

"The district court was right: this case has no legs whatever," a unanimous decision written by Judge Diane Wood said.

The District Court last year ruled that the plaintiffs had no real constitutional argument, despite claims under the Fourth and 14th amendments, to justify their 2007 lawsuit and that a proposed attempt to modify the suit would be frivolous. The plaintiffs, all of whom had been ticketed for violating the law, appealed the decision late last year. * * *

The plaintiffs attorney, Blake Horwitz of Chicago-based Horwitz, Richardson & Baker, said his clients will not appeal the decision. Still, he called it an important battle to fight, partly because Chicago's ordinance is different from those of surrounding municipalities and because there was little notice to drivers of the law.

"We feel very strongly that people have a right to know in advance that they're committing some sort of infraction," Horwitz said.

Posted by Marcia Oddi on Saturday, August 15, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Continuing on with: Managing the electronic communication revolution in the Indiana courtroom

This will be the 6th ILB entry under the heading "Managing the electronic communication revolution in the Indiana courtroom" The first such entry, dated July 25th, commenced:

It began with stories of cell phones banned in the Allen County Courthouse. That was in November of 2006. Several other counties followed suit, via their local rules. You may find them in this list of ILB entries referencing "cell phones."
This week, Anita Ramasastry, a FindLaw columnist and Professor of Law at the University of Washington School of Law, had this column headed "Why Courts Need to Ban Jurors' Electronic Communications Devices." Some quotes:
On September 1, a new rule will go into effect for Michigan state courts: Trial courts must instruct jurors that they cannot use iPhones, cellphones, or other electronic communications devices as they deliberate about their verdict. Moreover, Michigan is only one of many jurisdictions grappling with this issue. And in some instances, jurors' use of electronic applications such as Twitter has even led to mistrial allegations. * * *

In this column, I will review the current Michigan Supreme Court rule banning jurors' use of electronic devices. I will also argue that it may be wise for courts to go further – as some already have done – by simply asking jurors to check such devices at the courthouse door. * * *

Currently, there is no consensus in the U.S. on how to deal with the problem of jurors' use of electronic devices, according to the National Center for State Courts. Some courts ban electronic devices from the courthouse – asking jurors to leave them at the door. Some judges let jurors keep cellphones but tell them to keep them turned off. Others allow cellphones to be used during breaks. Some courts, like Michigan's, tell jurors not to use their devices in the courtroom or during deliberations.

According to the National Center for State Courts, a number of states have grappled with the problem. The Center surveyed court administrators to find out what courts are doing to stave off the use of electronic communications devices during trials.

To get a sense of the diversity in policies, consider these examples: New Jersey allows jurors to bring cell phones to court, but they must be turned off during trial. In Malheur County, Oregon, and federal court in the Western District of Louisiana, jurors are not allowed to bring cell phones to court at all. In Alaska's first judicial district, a court bailiff confiscates cell phones during jury deliberations. In Minnesota, one county's jury summons makes specific reference to a ban on cell phones, pagers, and PDAs. It explains that the policy "was enacted in the Second Judicial District (Ramsey County) in the state of Minnesota after two mistrials were declared when jurors used cell phones during deliberation against the Court's order," and mentions, "Phones are available in the Jury Assembly Room."

In Multnomah County, Oregon, the court provides a jury instruction that makes explicit reference to certain electronic devices and activities. The court tells jurors: "Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. 'No discussion' also means no emailing, text messaging, tweeting, blogging or any other form of communication."

The instruction also cautions jurors about conducting Internet searches and does so in a very clear and commonsense manner: "In our daily lives we may be used to looking for information on-line and to 'Google' something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should."

Currently, too, an Indiana judicial panel is investigating what can be done about the problem. Last week, the Indiana Judicial Conference's jury committee assigned staff to draft a rule setting uniform limits on jurors' use of electronic devices during deliberations. The rule is scheduled to be presented to the Conference in October.

Ultimately, Collecting Cellphones at the Courthouse Door May Be the Best Solution

While Michigan's rule is a good start, it may not be sufficient. More precise instructions that mention (but of course, are not limited to) applications such as Wikipedia, Google, and the like may be helpful in getting jurors' attention when trial judges instruct jurors not to do research at home. The Multnomah County jury instructions do a good job of making clear what type of electronic communications are prohibited and when they are prohibited. And while jurors are in the courthouse, the best solution will likely be to ask them to check their own electronic devices, yet also make telephones available for their use. After all, justice requires us to pay attention in court and not to be thinking about our next text, Tweet or Web search.

Right back to November, 2006, when Allen County banned cell phones in the county courthouse.

Posted by Marcia Oddi on Saturday, August 15, 2009
Posted to Indiana Courts

Environment - "NW Indiana counties stop residents' wind tower ventures"

Gitte Laasby of the Gary Post-Tribune has a very long story today on the premise: "County ordinances aren't prepared to deal with wind towers and spires." Some quotes:

Four months ago, Jackson Township retiree Tom Martin put down about $15,000 for two 30-foot wind spires, which he hopes could cut his electricity bills 60 percent. He's still waiting for permission to put them up. The problem? Porter County has not yet finished its ordinance relating to wind generation. * * *

Potential buyers in Lake County are facing similar issues.

That's costing business for George Kontol Jr. He owns DeMotte-based Northwest Geothermal, which sold Martin the wind spires. The aluminum cylinder spires contain no propellers but have a rotor that turns with the wind in any direction and that's an appealing design.

"People want it, but when I tell them there's no permitting right now, it derails it then and there. We don't want to derail anything. We can sell a lot of them, but we're getting a lot of slack from the counties," said Kontol. "Everybody says they want one, but it's counties across the state."

Sales representative Nick Serena of Lowell said he called Lake County twice to find out whether he needed a permit before he put up his wind spire.

"They basically told me there was no building permit for it, because it's only 30 feet tall, under the height variance. I assumed it was OK for me to do," he said.

Serena installed the spire, but after he appeared with it in a newspaper article, he received a letter from Lake County stating the spire is an illegal use because he got no building permit and no variance.

"There isn't a wind ordinance so how can they come back and say I'm not following the rules?" Serena said. "I don't appreciate it because when I called in, they told me it was OK. Now they tell me I have an illegal structure. It's kind of asinine if you ask me."

Lake County has threatened a lawsuit and fines of $10 to $2,500 per day of violation. The county's ordinance doesn't specifically mention wind towers, but Lake County planning and building administrator Steve Nigro said Serena should have obtained a variance to be allowed to use the land in a way that's not listed as allowable.

"We don't allow for use of wind towers and cell towers," Nigro said. "If a use is not mentioned in a zoning ordinance, the way to do that is to go for a variance of use."

He said a variance would go to the board of zoning appeals, which recommends to the full county council, which can then approve, deny or modify the request.

"I don't know how he's going to correct the fact he put a structure up," Nigro said. "It's just a shame it came to this if the gentleman did ask and got bad information."

Nigro said county officials have discussed creating a wind tower ordinance, but have not put anything into action yet.

Some townships treat wind towers like TV antennas and apply the same rules.

In Porter County, the plan commission has worked on a comprehensive wind ordinance for about seven months. Plan Commission Director Bob Thompson said the commission is finishing an ordinance involving large turbines for a potential wind farm near Kouts. The ordinance for smaller turbines was contracted out to a consulting company.

"We wanted to get through the large ones first, then we wanted to look at the small," Thompson said. "There's interest in the small ones, but we can only do so much at a time. We wanted to make sure we did that one right."

Porter County Commissioner Bob Harper said the consulting company handed in its draft Wednesday. It's likely to appear at the next plan commission meeting in September, but would require public hearings in both the plan commission and the full commission.

"It takes a while for these things. It's not like it's some unusual thing. You just don't have someone come up with an idea, next week you have an ordinance. It doesn't work that way," he said. "What takes time is, the devil's always in the detail on these things ... How high can it be? How near neighbors can it be? All these kinds of issues. It's never just sitting down and slapping something together. It takes time to devise a good ordinance that applies to your county."

Martin said he believes noise and height concerns are minor issues because the spires are no louder than a whisper and no taller than a flag pole. He said he understands that the ordinance takes time, but would like to move on energy independence as soon as possible.

"It seems like the wheels of getting something accomplished are kind of slow at times. I understand they don't want to pass something quickly and do something wrong," he said. "I'm not a big ecological person. I don't worry a lot about the environmental things, but I do have a concern. I think it's just good common sense... After a while you just feel like you're spinning your tires."

Rather than spinning your rotors ....

Posted by Marcia Oddi on Saturday, August 15, 2009
Posted to Environment

Friday, August 14, 2009

Environment - More on: "St. Joseph County to consider windmills: Bill would regulate turbine installation in St. Joseph County"

Updating this ILB entry from Tuesday, Troy Kehoe of WSBT South Bend reports this afternoon:

Energy generating wind turbines put up in St. Joseph County will soon have to conform to a new set of rules, aimed at keeping homeowners and their neighbors safe. The St. Joseph County Council passed the new regulations unanimously Tuesday.

County leaders said they want the push toward "green" energy to continue, but not unchecked.

More than three dozen wind turbines have already gone up at homes and businesses across the county in the last few years.

Many have been put up by Glen Smith.

His South Bend based company Wind-Wire has installed, or is in the process of installing, at least 78 turbines in the last 18 months alone.

At a cost of between $15,000 and $17,000 each, they're not cheap. But, making your own electricity, Smith says, is worth its weight in gold.

"This is self-sufficiency," he said, standing outside a grouping of three wind turbines he installed on a 68-acre parcel of property owned by Larry Putt near Lakeville. The third just went up last week, and Putt already has plans for a fourth.

"Plug them right into the panel, no inverters, no converters, and they produce AC," Smith said.

That's alternating current — the juice that powers your hair dryer, air conditioner and TV. Getting it from mother nature is suddenly a popular option.

"They're becoming very common," Smith said. "We're building them from Fort Wayne to Detroit, Chicago, Indianapolis, all the way up to Traverse City. It's just a matter of time before one goes up near you."

Until Tuesday, that progress was marching forward unheeded, and unregulated.

But, appearing before the County Council Tuesday night, Smith's words weren't what some expected.

"You need this ordinance," he told the Council. "This is following in line with what every county is doing, for the most part. This gets you out of your garage built wind turbines. You don't want a cheap wind turbine, or one that can collapse, or one that doesn't stand up to wind loadings."

County Councilmen agreed, saying they encourage the "winds of change, " just as long as they don't blow too loudly.

Among the long list of new requirements:

-That noise levels remain under 55 decibels — no louder than the average air conditioner, which hums at about 60 decibels
-That height limits stay under 80 feet in agriculturally zoned areas and 60 feet in residential areas
-That only single-pole designs be used
-That only three turbines will be allowed per 10 acre lot
-That all turbines and poles be neutrally colored in either white, black or gray
-That the turbines be tested to withstand winds of at least 100 mph

It all adds up, designers of the regulations say, to one thing.

"This will provide some protection to adjacent property owners when these things go up. Obviously, nothing requires a homeowner to put a wind turbine up. What it does is give you some level of protection and input in certain circumstances if your neighbor wants to put one up," said Area Plan Commission Assistant Director Larry Magliozzi.

But others say the regulations don't go far enough. They worry the windmills will still be too noisy, too visible, and could lower property values."

"They are almost always on a large pole, about 60 feet in the air," said Tom Gruber, Government Liaison Officer for the Home Builder's Association of St. Joseph Valley. "And it conjured up images of the 1950s and TV towers. Every home had this massive TV tower which was fine in those days, but I think most people would agree that's not aesthetically pleasing."

It's one reason why the HBA pushed for the minimum lot size to be increased from its original requirement of 15,000 square feet to one acre.

But, some at Tuesday's meeting said that's not enough.

"Wind energy is fine out in big places where you have five or six acres, stuff like that. But, not where you're annoying your neighbor or endangering his property," said Clay Township resident Thomas Burnett.

Burnett had some suggestions on how to improve the ordinance, and he wasn't bashful about selling them to the Council.

"There's no maintenance standards in here," he said. "There's no setback standards. What about how the turbines kill birds? The noise level should be at the property line, not 10 feet past it. The setback should be at least the height of the tower, plus some extra. That way, if the wind turbine falls, it won't be on someone's home."

"If properly installed, which the building department will guarantee through inspections and proper permits, through inspections and the proper permits, these things should not fail," said Magliozzi.

But, Burnett isn't convinced.

"If they make some changes to this, I believe it would provide a good solution," Burnett said. "But, this isn't enough."

They are arguments that will likely continue, even as the new rules take effect.

All of the new regulations only apply to those in unincorporated areas of the county. Homeowners in South Bend and Mishawaka may require additional building permits.

The county's new regulations take effect on September 11.

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Environment

Ind. Gov't. - Even more on: Governor Daniels eases, somewhat, new BMV license ID requirements [Updated]

Updating this ILB entry from yesterday, that concluded:

Okay, this is confusing. If you don't provide the additional identification materials when you renew, you will get an Indiana driver's license that has stamped on it "not for federal identification" or "not federally compliant," even though: (1) the feds aren't requiring such identification until 2016, and (2) may not even then because the feds may scale back the Real ID Law (as reported in this Aug. 12th ILB entry).
The Fort Wayne Journal Gazette has an editorial today titled "Don’t blame the feds." Some quotes:
After an outpouring of complaints, Gov. Mitch Daniels has eased requirements for renewing an Indiana driver’s license after Jan. 1. But state officials are still using misinformation to push Hoosiers to meet unnecessarily stringent requirements.

According to a news release issued by the governor’s office Wednesday, “States are required to begin issuing compliant cards in January 2010, and the federal government has mandated that states complete their compliance by the end of 2016.”

Not so, according to Jim Harper, director of Information Policy Studies for the Washington-based Cato Institute. The federal government doesn’t require the states to do anything under the Real ID act, passed in reaction to the Sept. 11, 2001, terrorist attacks.

“If your governor says that he is ‘required’ to do anything by Real ID, he’s trying to avoid his responsibility to protect the privacy and civil liberties of Indiana residents from federal government incursions,” Harper said in an e-mail. “That’s shameful.” * * *

There are no federal mandates because many states have objected to the federal proposals. The Obama administration has offered a less-restrictive proposal with its Pass ID plan, but even that plan – still under debate – is not as restrictive as Indiana’s driver’s license requirements, which require verification of birth certificates with the originating agency.

Andy Miller, commissioner of the Indiana Bureau of Motor Vehicles, flew around the state last month to unveil Indiana’s SecureID initiative, in which all driver’s licenses will be issued from a centralized office after applicants present a minimum of four pieces of identification to prove identity, Social Security number, Indiana residency and lawful U.S. status.

Miller cited concerns for identity theft and security threats. The new requirements drew immediate fire from advocacy groups such as AARP Indiana and the Indiana League of Women Voters, which protested because of the burden the ID requirements placed on older Hoosiers and women, who would have to produce additional documentation to verify name changes. Democratic Party officials also complained, noting that the requirements were another stumbling block to voting in a state that already has the most restrictive voter ID laws in the nation.

In response, Daniels announced Wednesday that two types of ID will be available for Hoosiers renewing licenses or ID cards – one that is “federally compliant” and one that is not. The former must meet the previously announced SecureID requirements; the latter will require applicants only to show their current ID card or driver’s license.

Those who request the non-compliant card must sign an affidavit noting that they “understand that the card may limit their ability to board airplanes and enter federal buildings at some point in the future.” The affidavit requirement will undoubtedly frighten many Hoosiers into taking unnecessary steps to obtain a SecureID. New residents will have no choice but to do so.

In the end, the governor seems to have recognized that the new requirements threatened license branch improvements. The tough ID requirements are almost guaranteed to create confusion and inconvenience when they go into effect in January.

“Our BMV is now nationally recognized for its short visit times and friendly customer service, and we intend to keep it that way,” Daniels said.

Improved customer service is something the governor can claim with pride. But blaming the federal government for non-existent requirements is disingenuous. If the governor wants Hoosiers to take extra steps to prove their identity, he should say so himself.

[Updated 8/15/09] Here is a quote from an Evansville Courier & Press editorial yesterday:
This week, Daniels offered some changes he believes will ease the impact of the rules on at least some Hoosiers.

We're not so sure about that.

That's because the state announced Wednesday that there will be two licenses depending on what type of license the applicant wants to have in his or her wallet.

First, new applicants securing an Indiana license for the first time will still have to provide the requisite multiple forms of documentation.

Second, individuals who fly or enter certain federal buildings will want to provide the multiple IDs. Those persons will need a driver's license that meets certain federal criteria by 2016. They will have the option of doing that any time before 2016, and not necessarily when their license comes up for renewal during that span of years.

Third, if you are not planning to fly, nor enter certain federal buildings — which, we presume, will be listed later — then, for you, the new rules will be optional. You can provide the multiple documents or you can renew your license without the added documentation. The renewed license will not be federally compliant, but it will meet the requirements for licensed driving.

Did someone say this is confusing?

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Indiana Government

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

In Bentz v. City of Kendallvile (ND Ind., Judge Lee), a 15-page opinion, Judge Kanne writes:

On May 3, 2006, officers of the Kendallville Police Department entered the home of Dr. Bernard Leonelli without a warrant, arrested him, and searched his home for potential domestic violence victims. Leonelli brought suit against the City of Kendallville and individual police officers alleging various Indiana tort claims and violations of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983. The district court granted summary judgment to the defendants. While this appeal was pending, Leonelli passed away from causes unrelated to the lawsuit, and Susan Bentz became his personal representative. The city moved to dismiss the appeal, claiming that none of Leonelli’s claims survived his death. Bentz, meanwhile, moved that we certify the question of survival to the Indiana Supreme Court. Because we find that Indiana law establishes that Leonelli’s claims do not survive, we grant the city’s motion to dismiss the appeal and deny Bentz’s motion to certify questions of state law. * * *

Nothing in our opinion requires that we resolve a question of state law on which there is no clear controlling Indiana precedent. For that reason, Bentz’s motion to certify questions of law to the Indiana Supreme Court is DENIED.

Leonelli’s federal claim for unreasonable seizure would be treated under Indiana law as a false imprisonment claim; his unlawful entry Fourth Amendment claim isanalogous to the Indiana tort of invasion of privacy. Because neither tort survives under Indiana law, the appellees’ motion to dismiss the appeal is GRANTED.

Daugherty v. Wabash Center, Inc. (ND Ind., Judge Sharp), is a 10-page Per Curiam opinion:
Michael Daugherty sued Wabash Center, Inc., and its president, Jeffrey Darling, claiming that he was fired in violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654. The district court granted the defendants’ motion for summary judgment, and Daugherty appeals. Because Daugherty did not show that there was a genuine issue of material fact concerning Wabash’s reason for firing him, we affirm.

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Tanika Walker v. Samuel Nelson, III, a 15-page opinion, Judge Brown concludes:

For the foregoing reasons, we affirm the trial court's grant of Father's petition to modify custody of S.N., reverse the trial court's restriction of Mother's parenting time, and remand this case to the trial court to either enter an order containing sufficient findings to support a visitation restriction or enter an order that does not contain a visitation restriction.

MAY, J., concurs.
CRONE, J., concurs in part and dissents in part with separate opinion. [that concludes] To equate reasonable parenting time with the full panoply of visitation rights pursuant to the Parenting Time Guidelines and to allow a deviation therefrom only in situations where there is child endangerment would severely limit a trial court's ability to fashion a visitation schedule that best suits the situation of the parents involved. Such a result would be ill advised.

Here, the trial court granted Mother “parenting time pursuant to the Indiana Parenting Time Guidelines with the exception that [Mother] shall have only one weekend of parenting time per month.” Because the trial court granted Mother parenting time, the court was not required to enter findings pursuant to Indiana Code Section 31-14-14-1, and thus Mother may not challenge its failure to enter such findings. Mother may challenge only whether her parenting time is reasonable. Based on the record before us, including evidence regarding the significant geographical distance between Mother and Father, I conclude that it is. Therefore, I respectfully dissent as to issue II and would affirm the trial court in all respects.

T-3 Martinsville, LLC and MS Martinsville, LLC v. US Holding, LLC Hoosier Enterprises, IX, Inc. and John W. Bartle - "T-3 Martinsville, LLC, and MS Martinsville, LLC (“Landlords”), bring this interlocutory appeal of the rulings against them in the trial court's “Ruling on Motions for Summary Judgment.” US Holding, LLC (“USH”), John W. Bartle, and Hoosier Enterprises IX, Inc. (“Hoosier”) (sometimes collectively referred to as “Appellees”), cross-appeal the rulings against them in the aforementioned order."

[See at p. 3, very lengthy footnote 3, re failures to conform brief to Rule 46 requirements.]

NFP civil opinions today (6):

L.A.K.-C. v. K.K. (NFP) - ILB comment: This is the third opinion in a divorce case the ILB has noticed recently where the parties are not identified by name. All three divorce cases have included custody issues. I've learned informally that there is a new courtwide policy that essentially vests discretion in the writing judge. I have heard nothing official, so don't know the parameters of the discretion, whether it is just divorce cases with custody issues, what criteria apply, etc.. (In this case, the parties' names are available via the docket.)

Darren Crouser and Angela Britton v. Town of Zionsville Plan Commission and Phil Cramer (NFP) - "Appellants-Petitioners Darren Crouser and Angela Britton appeal the trial court’s order affirming the Town of Zionsville Plan Commission’s (“ZPC”) approval of Phil Cramer’s minor plat submission. We affirm."

Term. of Parent-Child Rel. of T.Y.; T.M. v. IDCS (NFP)

K.H., Alleged to be CHINS; Indiana Department of Child Services v. T.H. & J.H. (NFP)

James Bedree v. Leonard Darrling (NFP)

Quan Ning Huang and Li Song v. Tanas B. Donev (NFP) - "In light of Huang and Song’s failure to appear and present any evidence on their behalf, we decline to set aside the default judgment entered against them.

"Additionally, as we have noted many times before, litigants who choose to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of their action. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). Therefore, “[p]arties would be well advised to seek the advice of trained counsel before wading into the complexities of civil litigation.” Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883, 887 (Ind. Ct. App. 2004)."

NFP criminal opinions today (9):

Matthew Helper v. State of Indiana (NFP)

Maurice Dew v. State of Indiana (NFP)

Virgil Hall, III v. State of Indiana (NFP)

Kevin Chrisman v. State of Indiana (NFP)

Darryl York v. State of Indiana (NFP)

Tony L. Taylor v. State of Indiana (NFP)

Curtis F. Sample, Jr. v. State of Indiana (NFP)

Edward D. Roberts v. State of Indiana (NFP)

P.T. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One case granted transfer August 10th

The Clerk's transfer list should be available sometime today or perhaps Monday. There was no transfer list for the week ending Aug. 7th.

Meanwhile, the ILB received notice today that transfer was granted August 10th in the following case:

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Indiana Transfer Lists

Courts - "Federal Judges’ Dissents for Death Row Inmates Are Rising"

So reports NY Times reporter John Schwartz in a long story that begins:

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

“The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Courts in general

Ind. Gov't. - Indiana Gaming Commission investigator arrested on theft, forgery and other charges

A brief item in the Indianapolis Star:

Vevay -- Indiana State Police have arrested an Indiana Gaming Commission investigator on theft, forgery and other charges; police say he stole counterfeit bills from a casino's evidence locker in Switzerland County.

Troy Knorr, 46, was arrested Tuesday at his home in Columbus and charged with forgery, corrupt business influence, theft and official misconduct, State Police spokesman Sgt. Noel Houze said.

Knorr, a retired Indiana State Police officer, appeared in Switzerland Superior Court and was freed on bond, Houze said.

Police say Knorr used his authority as a Gaming Commission investigator to steal counterfeit $20 bills from evidence storage at the Belterra Casino.

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Indiana Government

Ind. Courts - "Juvenile racial disparities subject of conference"

Andy Grimm of the Gary Post-Tribune reports today:

Black youths in Lake County are twice as likely to be arrested than whites -- a rate that actually trails most counties in the state. Minorities also are more likely to be expelled from school, held in jail or placed in foster care, but local officials are looking to erase those imbalances.

A delegation of judges, attorneys, police and educators will meet in Indianapolis on Aug. 26 for a summit on racial disparities in the juvenile justice system, hosted by the state bar association.

The Maryland-based Annie E. Casey Foundation also will fund additional research in Northwest Indiana to be used to keep teens out of jail,

"A certain segment of the population is not getting the services it needs from the system," said Lake County Superior Court Judge Lorenzo Arredondo on Thursday.

Arredondo and Juvenile Court Judge Mary Beth Bonaventura are helping organize the meeting, which hopes to address disturbing gaps between minorities and white youths in Indiana schools and juvenile courts.

In Lake County, one of seven counties surveyed in 2005 for the state report, blacks are arrested at twice the rate of youths of other groups -- a figure that leads the survey. Black youths are arrested four times more often than other groups in Tippecanoe County and three times more often in Marion County.

But that relatively good news shouldn't satisfy local officials, said Bonaventura.

"The whole purpose of all this is we can do better," Bonaventura said.

The Aug. 26 summit will include presentations by juvenile authorities acknowledged as leaders in their fields, including Georgia juvenile court judge Steven Teske and New Mexico mental health expert Nicol Moreland-Torres.

Legislators created the state Commission on Disproportionality in Youth Services in 2007, after Indiana ranked near the bottom among all states in a variety of criteria dealing with troubled minority youths. The Commission will create a series of steps for improving arrest rates and outcomes for children who enter the juvenile justice system, JauNae Hanger of the Indiana Bar Association said.

Bonaventura foresees a local commission made up of law enforcement officers, school officials, legislators and attorneys who would try to implement changes in Northwest Indiana.

More on the upcoming conference here.

Posted by Marcia Oddi on Friday, August 14, 2009
Posted to Indiana Courts

Thursday, August 13, 2009

Environment - "State recycling panel shocked by $11M transfer" [Updated]

This brief AP story, with no identifications, was posted on the Indianapolis Star website this afternoon:

Members of a state panel that oversees funding used to attract recycling companies to Indiana say they're shocked that budget officials recently shifted $11 million out of that recycling fund to buoy the state's general fund.

One member of the Recycling Market and Development Board says the panel was “blind-sided” by the transfer, which occurred June 30 and left about $5.4 million in the fund.

Panel members didn't learn of the transfer until Thursday, 44 days after the money was moved to help alleviate Indiana's revenue shortfall.

They grilled a state official about why the board wasn't consulted about the transfer.

The money was moved eight months after the state's environmental agency froze the money in the grant and loan program, citing the lingering recession.

Who is on the Board? Here is the list.

Also of interest is this page for the Recycling Promotion and Assistance Fund (RPAF). The page points out that grants and loans from the Fund have been curtailed, but says nothing about the bulk money in the dedicated fund itself having been withdrawn and put to other uses by the budget agency:

This fund provides loans and grants to promote and assist recycling throughout Indiana by focusing on economic development efforts. It is administered by the Indiana Department of Environmental Management (IDEM) and operates under the auspices of the Recycling and Energy Development Board as established by IC 4-23-5.5.
[Updated 8/14/09] Here is the expanded AP story by Rick Callahan. Some quotes:
Members of a state panel that oversees funding used to attract recycling companies to Indiana expressed shock Thursday that state budget officials recently shifted $11 million from the recycling fund to the state’s main checking account.

State Sen. Jean Breaux, D-Indianapolis, said she and other members of the Recycling Market and Development Board were “blindsided” by the transfer, which occurred June 30.

The panel’s members, who didn’t learn of the transfer until they met Thursday for a regularly scheduled meeting, grilled a state environmental official about why the board wasn’t consulted or told before it happened.

“What’s the point of having this board if we don’t have any input into the outcome of the decisions that affect the very product we’re supposed to be overseeing?” asked Breaux, a nonvoting board member.

The transfer, which left about $5.4 million in the recycling fund, was used to help alleviate the state’s revenue shortfall, said Rick Bossingham, an official with the Indiana Department of Environmental Management.

Bossingham, the assistant commissioner of IDEM’s Office of Pollution Prevention and Technical Assistance, said the state’s Office of Management and Budget made the transfer without consulting IDEM as part of efforts by Gov. Mitch Daniels’ administration to help cover the state’s revenue shortfall. He said the money would not be returned to the fund. * * *

[B]oard chairman Bruce Burrow said he and the other board members were never told the money would be moved.

“Obviously, they have the right to do that, the ability to do that, but the communication factor was lacking and that’s most disconcerting, as is what’s going to happen in the future as the funds continue to grow,” he said.

Burrow asked Bossingham if IDEM could re-examine the possibility of releasing $1.3 million the board awarded in December to three companies, which between them planned to bring 60 new jobs to Indiana.

“That’s what sticks in my craw the most,” Burrow said. “We’re sitting on $5 million and we’ve committed $1.3 million, but we still can’t allocate those funds.”

Bossingham said he would pass on the new request but the fund remains frozen indefinitely.

Jeffrey Miller, a board member and president of the Indiana Recycling Coalition, said the state’s decisions regarding the funds send “a bad signal” to recycling companies that might be interested in locating in Indiana.

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Environment | Indiana Government

Courts - New bankruptcy numbers out

The release on the U.S. Courts site begins:

In the 12-month period ending June 30, 2009, there were 1,306,315 bankruptcy cases filed, according to statistics released today by the Administrative Office of the U.S. Courts. That is a 35 percent increase compared to filings for the 12-month period ending June 30, 2008, when cases totaled 967,831.
See also this entry today from The Blog of Legal Times.

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Courts in general

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

For publication opinions today (1):

In Jeffrey L. Kimbrough v. State of Indiana , a 32-page opinion, CJ Baker writes:

Appellant-defendant Jeffrey L. Kimbrough appeals his conviction for Battery with a Deadly Weapon, a class C felony, claiming that 1) the jury selection process was improper; 2) the trial court erred in admitting certain evidence at trial; 3) the jury was improperly instructed; 4) the State did not adequately rebut his claim of self-defense; 5) the restitution order was excessive; 6) he was improperly ordered to pay fines, court costs, and public defender fees because no indigency hearing was held; and 7) his trial counsel was ineffective.
Although we find no reversible error, we remand this cause with instructions that the trial court clarify its restitution order. * * *

In light of our discussion above, we conclude that there was no error in the juror selection process and that the 911 tape was properly admitted into evidence. We further find that the trial court did not err in admitting a police officer's testimony regarding the comments that Peoples made to him about the incident, or in permitting Peoples to testify about the amount of time that he was in pain. The trial court also properly permitted Peoples to testify as to why Curtis entered the room during the fight, and the trial court did not err in instructing the jury as to the definition of “serious bodily injury.” Finally, we conclude that the evidence was sufficient to rebut Kimbrough's self-defense claim

NFP civil opinions today (3):

Nightingale Home Healthcare, Inc. v. Suzie Oliva (NFP) - "Nightingale Home Healthcare, Inc. (“Nightingale”) appeals from the trial court’s grant of summary judgment in favor of its former employee, Suzie Oliva. Specifically, Nightingale argues that the trial court erred by refusing to consider its summary judgment materials, and that if the court had done so, it would have found a genuine issue of material fact which precluded summary judgment. Because Nightingale filed its summary judgment materials after the time for a response had expired without previously making a motion to the trial court for a continuance before time expired, the trial court correctly refused to consider the belated materials. Because summary judgment was properly granted, we affirm. * * *

"Specifically, Nightingale argues that it timely filed both its motion for enlargement of time and its summary judgment materials because Oliva’s counsel had agreed to an enlargement of time. In the event we find the documents untimely, Nightingale argues that the trial court had discretion to accept the belated documents. Nightingale also argues that, had the trial court considered its summary judgment materials, it would have determined that there are genuine issues of material fact which preclude summary judgment."

Rolla G. Trent v. Rodney L. Richard (NFP) - "The issue before us is whether there is a genuine issue of material fact regarding Officer Richard's employment status at the time of the accident. This is because if at the time of the accident, Officer Richard was acting within the scope of his employment as a City of Peru police officer, he is immune from personal liability. * * *

"In light of this designated evidence, and more particularly in light of the applicable Indiana case precedent, we hold that the trial court correctly determined that notwithstanding Officer Robert's personal interest and motivation in responding to the emergency dispatch, as a matter of law, Officer Robert was acting within the scope of his employment at the time of the accident. Accordingly, we affirm the trial court's grant of summary judgment."

Darryl Van Swol and Jan Van Swol v. ISG Burns Harbor, LLC and Donald Bowens (NFP) - "Appellants-plaintiffs Darryl and Jan Van Swol appeal the trial court's order dismissing their complaint against appellees-defendants ISG Burns Harbor, LLC (ISG), and Donald Bowens for lack of subject matter jurisdiction. The Van Swols argue, among other things, that the trial court erroneously concluded that Darryl was an employee of ISG, meaning that his claim for injuries sustained on the job must be raised under the Worker's Compensation Act. Finding that Darryl was not an employee of ISG and that the trial court has jurisdiction over the Van Swols' complaint, we reverse and remand for further proceedings on the complaint. * * *

"There are two factors that weigh slightly in favor of a finding of employment—right to discharge and establishment of work boundaries. The remaining factors—mode of payment, provision of tools and equipment, belief of parties, right to control, and length of employment—weigh significantly against a finding of employment. And indeed, when we step back and consider the evidence as a whole, it is apparent that ISG disclaimed all employer-related responsibilities—on paper and in practice—until Darryl filed this lawsuit. Even when Darryl was injured, ISG declined to provide medical treatment, create an incident report, or investigate the accident. Those decisions were not inappropriate if Darryl was an independent contractor, but ISG may not now act as if that it considered Darryl to be an employee and treated him as such.

"Under these circumstances, we can only conclude that the trial court erred by finding that Darryl was an employee of ISG. We hold that the balance of evidence tips against that conclusion and that the trial court does, in fact, have jurisdiction over the Van Swols' claims and should not have dismissed the complaint."

NFP criminal opinions today (2):

Myron Tools v. State of Indiana (NFP)

Edward A. Grady v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion; several others of interest

In U.S. v. James Daniel (ND Ind., Judge Lozano), a 6-page opinion, Judge Wood writes:

In this appeal, we once again consider issues arising from an August 2006 police operation in Indiana designed to catch predators using internet chat rooms to persuade minors to engage in sexual activity. James Daniel was ensnared in the operation’s net when he struck up a chat with someone calling “herself” Amanda_13. Unbeknownst to him, he was really communicating with a male officer claiming to be a 13-year-old girl. But the government failed to realize the extent of its own sting operation. During Daniel’s trial, the prosecution introduced two chat sequences found on Daniel’s computer that apparently involved minor girls. What the government did not notice until sentencing was that one of those “girls,” daisy13_Indiana, was actually an officer from the same Indiana operation. And that was not all. To our surprise, the government was unaware until this panel told it at oral argument that the other screen name, blonddt, was also an officer from the Indiana operation. Daniel asserts that the government’s failure to disclose the identity behind these two screen names violated Brady v. Maryland, 373 U.S. 83 (1963), and thus entitles him to a new trial. Because the information was not material to Daniel’s trial, we affirm his conviction and sentence.
In a case out of Illinois, Pollack and Blue Eco Legal Council v. U.S. DOJ, a 22-page opinion, Judge Manion writes:
The United States government operates a gun range on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The plaintiffs appeal, and we affirm. * * *

To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.

The defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that the court lacked subject-matter jurisdiction because Pollack and Blue Eco did not possess constitutional standing to assert their claims. The district court granted the motion, concluding first that Pollack and Miller’s concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm by Pollack and Miller. Moreover, the district court held that their concerns over birds, fish, and wildlife were too general and did not allege any particular or specific harm that had been caused by the bullets. The district court concluded that because Pollack and Miller did not possess standing, Blue Eco did not possess standing on their behalf. Accordingly, the district court dismissed the suit for lack of subjectmatter jurisdiction. The plaintiffs appeal. * * *

Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is AFFIRMED.

Judge Cudahy, concurring, writes beginning at p. 14: This is without question a close case. As the case law laid out by the majority suggests, “injury in fact” can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical. Compare generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Scalia, J.), and Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009) (Scalia, J.), with Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (Ginsburg, J.). I write separately to make the point that the Supreme Court’s case law on this subject is both unclear in purpose and extraordinarily difficult to reconcile. Close cases like this one ought to make that point clearly. In particular, where a citizen-suit provision potentially sets the bar for proving the merits lower than the bar for proving standing, it is incumbent upon us to carefully examine why the plaintiff before us either has or has not established “injury in fact.” Perhaps more important, this plaintiff’s case has procedural flaws not addressed by the majority.

In another case out of Illinois, Gayle Schor et al v. City of Chicago, a 10-page opinion, Judge Wood writes:
Gayle Schor, Kristine Mulcahy, and Angela Shue (collectively, the “plaintiffs”) brought this suit in the district court as a class action, challenging the constitutionality of a Chicago municipal ordinance that prohibits the use of wireless telephones without a “hands-free” device while driving a motor vehicle. See MUNICIPAL CODE OF CHICAGO, ILL. § 9-76-230 (the “Ordinance”). The case was nipped in the bud by the district court with a dismissal for failure to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). The district court also denied the plaintiffs’ request for leave to amend their complaint on the basis that any amendment would be frivolous. See FED. R. CIV. P. 15(a). The district court was right: this case has no legs whatever. We therefore affirm the judgment.

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Another NFP COA decision reclassified

The case is Josif Obetkovski v. Inland Steel Industries - NFP opinion issued 7/7/09; Appellee's motion for publication filed 7/14/09 but missing certificate of service; defect cured 7/23/09; Appellant's petition for transfer 8/5/09; Ordered published 8/10/09.

From Sr. Judge Hoffman's opinion:

Based upon the foregoing discussion and authorities, we conclude that the Board did not err in finding that Obetkovski failed to give Inland notice of the alleged work-relatedness of his injury and that this failure prejudiced Inland. In addition, there is ample evidence to support the Board’s conclusion that Obetkovski did not suffer a compensable injury in the course and scope of his employment with Inland.

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Apparently there are all sorts of surprises in the special session budget"

Picking up on this ILB entry from August 10th, where a Court of Appeals opinion pointed out that during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b). is not recommended or approved by the director of the department or the director's designee.
The Fort Wayne Journal Gazette has an editorial today that provides more information about the import of this change:
DCS has come under fire from a St. Joseph County juvenile court judge for an 11th-hour addition to the state budget that gives [Director James] Payne alone the authority to approve out-of-state placements of children and teenagers. Previously, judges could order placement out of state if they determined that was the most appropriate setting.

“This effectively blocks the out-of-state placement of children,” wrote Probate Court Judge Peter J. Nemeth in a letter sent to Indiana newspapers. “It is unfortunate that the General Assembly has seen fit to remove this important decision from the hands of judges at the local level and place it in the sole hands of a bureaucrat in the executive branch.”

Judge Charles Pratt of the Allen Superior Court’s Family Relations Division said he and Judge Steven Sims don’t typically make out-of-state placements, instead favoring treatment centers that are close to a young person’s home. But he acknowledged that the issue is one that should have been debated before it was approved.

“It’s further evidence of a trend of reducing judicial discretion,” Pratt said. “The less we’re able to weigh the best options and make a ruling, the less chance that kids are being well-served. That’s disturbing.”

In an interview, Payne defended the change, noting that 85 percent of out-of-state placements were made by judges in two counties. Those counties are Lake and St. Joseph, and while both are border counties, Payne said the placements were not just across state lines but to far-flung states. * * *

Nemeth, however, argues that one of his out-of-state placement orders, at a cost of $170 a day, was opposed by DCS in favor of an in-state placement at $325 a day.

Payne, in fact, admitted that in his 20 years as a juvenile court judge in Marion County, there were occasions when an out-of-state placement was the only option.

Given his years of experience on the court, it’s likely the current DCS director would authorize an out-of-state placement in such a case, but a subsequent director without that background might be driven more by budget concerns. Taking the discretion away from a local judge and placing authority with the DCS director is an issue that should have been allowed time for study and public debate.

It’s inevitable that shifting the total cost of child welfare programs to the state would result in more centralized authority, as it likely will with school general fund expenses. But issues involving children demand close attention. That’s more likely to come from a local juvenile court judge than from the head of a state agency.

The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.

St. Joseph County Probate Court Judge Peter J. Nemeth's letter was published in the Indianapolis Star on August 3rd. Some quotes:
As a judge, I am entrusted with ensuring that our citizens receive due process of law, including the opportunity to be heard. Unfortunately, it does not appear that the state's director of Child Services (himself a former juvenile judge) has any concern for the opportunity to be heard as he accomplished a fait accompli (with the acquiescence of the General Assembly) by inserting a last-minute, late-night addition to the budget bill that changes Indiana law so that a juvenile judge cannot do what is in the best interest of a child if that means sending the child to an out-of-state placement.

Out-of-state placements of children will not be paid for without the express consent of the director of Child Services. This effectively blocks the out-of-state placement of children. It is unfortunate that the General Assembly has seen fit to remove this important decision from the hands of judges at the local level and place it in the sole hands of a bureaucrat in the executive branch. * * *

A decision of this magnitude should not be decided in a late-night meeting of a conference committee. It should be discussed openly and decided on its own merits rather than on page 415 of an emergency budget bill. * * *

I call upon the General Assembly to sponsor an open discussion on this issue and then to vote either to keep this decision in the hands of an ivory tower bureaucrat in the executive branch or to restore it to the hands of the elected judicial officers of this state who are in the trenches dealing with families and children on a daily basis.

The ILB had an entry about a related aspect of this conflict between the courts and the IDCS on April 30th. It quotes an excellent story by Tim Evans of the Star that begins: "The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations."

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Indiana Courts | Indiana Decisions | Indiana Government

Ind. Gov't. - Still more on: Governor Daniels eases, somewhat, new BMV license ID requirements

Here are stories today from:

The Evansville Courier & Press - Eric Bradner reports:

Citing negative backlash after stringent new rules requiring several documents such as birth certificates, Social Security cards and more were announced earlier this year, the state's Bureau of Motor Vehicles will ease those requirements by making the new rules optional and giving motorists extra time to get their documents in order, Gov. Mitch Daniels said Wednesday.

Starting in 2010, the state will issue two types of licenses, but it still encourages providing the added documentation that proves their identities, lawful status, Social Security numbers and Indiana residence to get a federally compliant ID.

The federal government will begin mandating those IDs in order to board airplanes and enter some federal buildings in 2016. Those who need federally compliant IDs can provide the documentation to receive them any time between now and 2016, rather than on their next license branch visit as originally planned.

Or, Hoosiers can renew their current licenses without providing any of that added documentation. The IDs won't be federally compliant, but they will meet Indiana's requirements for licensed drivers. * * *

Those seeking a new driver's license, such as first-time drivers and those who have moved to Indiana from another state, still will have to meet the added documentation requirements. * * *

The BMV still will use its new facial recognition technology to check photos against its entire database to stop those who seek multiple driver's licenses. Licenses still will be mailed to motorists within 10 days, rather than handed out on the spot.

The Fort Wayne Journal Gazette - Niki Kelly reports:
Daniels said Wednesday that after some internal discussion and customer feedback, the state will allow those renewing driver’s licenses or IDs to obtain a non-compliant card without providing the additional documentation.

A non-compliant card will contain a statement that it is not for federal identification, but it will allow Hoosiers to drive legally and to vote.

This means Hoosiers using such a card as identification would not be able to board aircraft or enter certain federal buildings when the federal government is expected to tighten restrictions starting in 2016.

It is possible, though, that enforcement won’t happen, because there is talk in Washington of repealing the identification rules.

Okay, this is confusing. If you don't provide the additional identification materials when you renew, you will get an Indiana driver's license that has stamped on it "not for federal identification" or "not federally compliant," even though: (1) the feds aren't requiring such identification until 2016, and (2) may not even then because the feds may scale back the Real ID Law (as reported in this Aug. 12th ILB entry).

Posted by Marcia Oddi on Thursday, August 13, 2009
Posted to Indiana Government

Wednesday, August 12, 2009

Environment - US DC for DC rejects efforts to toss out Bush mining rule change without actually going through the formal rulemaking process

Here is the story in the Charleston W Vir. Gazette, reported by Ken Ward Jr. The story includes links to the opinion and to numerous background stories.

Note the panoramic photo at the top of the page ...

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Environment

Ind. Gov't. - More on: Governor Daniels eases, somewhat, new BMV license ID requirements

Read this ILB entry from earlier today in conjunction with this ILB entry from June 14th, headed "Obama Administration Plans to Scale Back Real ID Law."

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Indiana Government

Ind. Courts - "Fort Wayne Attorney Believes Automated Welfare System Is Hurting Child Support Collections"

Jeff Neumeyer reports for Indiana's NewsCenter: Fort Wayne WPTA-TV, WISE-TV, CW, and My Network:

Attorney Josh Tourkow says in the past, welfare moms applying for benefits in Allen County did so in person at a welfare office, where deputy prosecutors assisted with paperwork to get fathers to court to pay support.

He says the move to automation is creating a barrier in that process, that's letting more absent parents off the hook, and putting taxpayers on the hook.

Josh Tourkow/Attorney: " This is money that our taxpayers are entitled to, but the ball has been dropped. The only way basically to solve the problem is to go back to where it can all be done in one step."

Tourkow is advocating for a return to one-on-one contact at a local field office, where he believes clients get extra help in bringing absent parents into court to pay child support.

Allen County Juvenile Court Judge Steve Sims isn’t sure if automation is reducing child support collections locally, but he believes the issue warrants a more thorough examination.

Governor Mitch Daniels’ Administration is demanding service improvements from IBM to fix an array of problems, and is giving the company until early fall to make changes, or risk having its contract canceled.

And the Wall Street Journal has a story today by William M. Bulkeley headed "Glitches Mar Indiana's Effort to Outsource Social Services."

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Courts in general

Law - "Pitino contract contains morality clause"

Andrew Wolfson of the Louisville Courier Journal reports:

The University of Louisville's contract with men's basketball coach Rick Pitino allows him to be fired for cause for acts of “moral depravity” or for being dishonest with the university.

It also allows him to be terminated for generating disparaging media publicity, if it is caused by his “willful conduct that could objectively be determined to bring (the) employee into public dispute or scandal, or which tends to greatly offend the public.”

The Courier-Journal reported Tuesday night that Pitino told police that he engaged in consensual sex with Karen Cunagin Sypher in a Louisville restaurant on Aug. 1, 2003, and paid her $3,000 to have an abortion.

The LCJ also provides this link to Coach Pitino's employment contract.

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Van Prooyen Builders, Inc. v. Earl L. Lambert, Jr. and Mildred Lambert , a 4-page opinion, Judge Najam writes:

Van Prooyen Builders, Inc. (“Van Prooyen”) petitions for rehearing and claims several errors in this court's opinion in Van Prooyen Builders, Inc. v. Lambert, 907 N.E.2d 1032 (Ind. Ct. App. 2009) (“Van Prooyen I”). We grant rehearing for the limited purpose of addressing Van Prooyen's contention that the only issue addressed by the trial court and the parties on appeal was whether the Tax Provision violated public policy and, therefore, that this court's opinion should have addressed only that issue. * * *

Van Prooyen's arguments that this court is required to address only the legal theory relied upon by the trial court, or that this court “may not affirm a judgment where the trial court based its decision upon an invalid theory of law,” are not well founded.[1] * * * We prefer to consider only the legal arguments advanced by the parties, but our review is not limited merely because Van Prooyen did not fully brief the Tax Provision. As the Lamberts point out, it was a dispute over the meaning of the Tax Provision that gave rise to this cause of action. Indeed, the trial court's interpretation of the Tax Provision was the threshold issue and the legal predicate for its ruling that enforcement of the provision would violate public policy. Thus, the meaning of the Tax Provision was squarely before us, whether or not Van Prooyen addressed it, and our opinion was based on the plain language of the contract and Indiana law.

Van Prooyen's additional requests for this court to remand for the presentation of further evidence, or to order rebriefing on the meaning of the Tax Provision, are denied. Our prior opinion is affirmed in all respects.
_____________
[1] Van Prooyen cites two cases in support of this position, each of which suggests that this court cannot affirm a trial court's judgment if that judgment relies on an invalid legal theory. See In re Estate of Fanning, 263 Ind. 414, 417, 333 N.E.2d 80, 82 (1975); Data Processing Services, Inc. v. L.H. Smith Oil Corp., 493 N.E.2d 1272, 1274 (Ind. Ct. App. 1986). But both of those cases predate our Supreme Court's opinion in Mitchell and have, therefore, been impliedly overruled. See 695 N.E.2d at 923-24.

In Joshua Lewis, Nashelia Avant, and Marilyn Owens v. State of Indiana , a 16-page opinion, Judge Bradford writes:
In this consolidated interlocutory appeal, Appellants-Defendants Joshua Lewis, Nashelia Avant, and Marilyn Owens challenge the trial court's denial of their petitions to transfer their cases out of Marion Superior Court 8 on the grounds that the State's refusal to waive jury trials in Court 8 violates both the federal and Indiana Constitutions. We affirm.

In Marion County, Class D felony cases involving defendants with mental health problems or diagnoses are often transferred to Court 8, which is otherwise primarily a misdemeanor court. According to Matthew Gerber, Class D Felony Division Leader for the Marion County Public Defender Agency, prior to June 14, 2007, the State routinely agreed to waive its right to a jury trial in Class D felony cases in Court 8. On the afternoon of June 14, 2007, however, the trial court reportedly held a series of bench trials and acquitted multiple defendants. Thereafter, according to Gerber, the State refused to waive jury trials for Class D felony cases in Court 8, including in the Lewis, Avant, and Owens cases addressed below. The State's waiver policy in Court 8 allegedly differed from its policy in other courts including Marion Superior Courts 9, 15, 18, and 24, where, according to Gerber, it routinely waived jury trials for cases involving crimes such as residential entry and theft. * * *

The Appellants claim that the Marion County Prosecutor's Office's alleged policy to refuse to waive jury trials for Class D felonies in Court 8 deprives them of certain constitutional protections. [These are I Timeliness, II Effective Assistance of Counsel, III. Bench Trial, IV. Equal Protection, V. Privileges and Immunities. The Court discusses each in turn and finds not violations] * * *

Having rejected the Appellants' constitutional challenges, we find no error in the trial court's denial of their motions to transfer. The judgment of the trial court is affirmed.

Columbus Medical Svcs. Org., LLC v. Liberty Healthcare Corp.

NFP civil opinions today (6):

The Term. of the Parent-Child Rel. of H.P.; M.W. and R.P. v. Knox Co. Dept. of Child Svcs. (NFP)

Scott Stites, David M. Relue and Peter J. Walters v. Indiana Dept. of Natural Resources and RCI Development, LLC (NFP) - "Appellants Scott Stites, David M. Relue, and Peter J. Walters (collectively, “Appellants”) appeal the trial court's order dismissing their petition for judicial review of an agency decision by Appellee the Indiana Department of Natural Resources (“DNR”) for lack of jurisdiction. We affirm.

"On July 18, 2008, DNR issued its Notice of Final Order granting RCI Development, LLC (“RCI”) a license to construct a group pier on Crooked Lake in Steuben County. Appellants filed a petition for judicial review of DNR's order on August 18, 2008. The petition was signed by the Appellants but did not contain any verification that the petition had been signed under the penalty of perjury. * * *

"Here, it is undisputed that Appellants' petition lacked verification as required by Indiana Code Section 4-21.5-5-7(b). It is also undisputed that Appellants did not file a motion to amend their petition to include verification until October 1, 2008, nearly a month and a half after the conclusion of the statutorily allotted thirty-day period in which they could file a petition for judicial review of the DNR's order. Because Appellants' defect was left uncured when the statutory thirty-day period for filing Appellants' petition elapsed, we conclude that the trial court properly dismissed Appellants' petition for judicial review for lack of jurisdiction. See Kemp, 693 N.E.2d at 644; Hoosier Envt’l Council, 673 N.E.2d at 815-16. The judgment of the trial court is affirmed."

Lokmar Y. Abdul-Wadood v. S. Nowatzke, and WCU Trust Fund Office (NFP)

Celadon Trucking Svcs. of Indiana, Inc. and Clemente Carrisalez v. Julie Kirsh and Caroline Kirsh (NFP)

Transmontaigne Product Svcs. Inc. v. Americas Ins. Co., et al. (NFP)

State of Indiana v. Clay Crick and Jeffrey K. Watts (NFP)

NFP criminal opinions today (4):

Patsy M. Hoffman v. State of Indiana (NFP)

Steven W. Everling v. State of Indiana (NFP)

Charles E. Watkins v. State of Indiana (NFP)

B.P. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Governor Daniels eases, somewhat, new BMV license ID requirements

Responding, perhaps, to complaints such as this letter, quoted in an ILB entry headed "Making Hoosier women jump through hoops to drive, vote is unfair, " Governor Daniels announced this morning that he is easing the proposed new BMV license ID requirements.

Here is the press release, issued this morning:

INDIANAPOLIS (August 12, 2009) -- Governor Mitch Daniels announced today that Hoosiers will have more flexibility to obtain a federally compliant driver’s license or identification card at the Bureau of Motor Vehicles (BMV) beginning next year. States are required to begin issuing compliant cards in January 2010, and the federal government has mandated that states complete their compliance by the end of 2016.

“We encourage citizens to obtain a SecureID license when it is time to renew, but we’re giving everyone the full six-year period in order to maximize convenience. Our BMV is now nationally-recognized for its short visit times and friendly customer service, and we intend to keep it that way,” said Daniels.

The BMV announced last month that beginning in January 2010, all Hoosiers who renew, amend, or apply for a new driver’s license or ID card would be required to obtain the new, federally compliant license or ID card.

But following customer feedback, the governor decided to make the change optional for current holders of an Indiana driver’s license or ID card. To obtain the new compliant card, one must provide documents that verify identity, lawful status, social security number and residency. Or current holders of an Indiana driver’s license or ID card may choose to obtain a non-compliant card without presenting the additional documentation.

Without a compliant ID or license, boarding aircraft or entering certain federal buildings will be prohibited; however, the federal government will likely not enforce those restrictions until 2016. Customers can return to the BMV to obtain a compliant card at any time.

There will be no option for new Indiana license and ID customers. They will be required to obtain a federally compliant card and provide documentation of identity, lawful status, social security, and residency documentation beginning in January.

Some Hoosiers also have said they are concerned they will not be able to produce the documents needed for the compliant card; the governor said that in some cases, the BMV will accept alternate documents. For example, some citizens were not issued a birth certificate, so the BMV may accept other documents such as church, hospital or school records.

Daniels said the state will implement centralized issuance of cards beginning in 2010 to reduce fraud and identity theft. The BMV will use its new facial recognition technology to check photos against its entire database to stop individuals from securing multiple driver’s licenses and will mail them to customers within 10 days.

Twenty-five other states already have adopted the central issuance procedure or are enacting it this year.

[More] See this story by the Indianapolis Star's Mary Beth Schneider.

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Indiana Government

Ind. Decisions - "Crown Point businessman given plea agreement in fraud case "

Here is the story from August 10th, by Susan Brown of the NWI Times; it begins:

Nearly five years after alarmed investors first alerted authorities, Lake Criminal Court Judge Diane Boswell reluctantly accepted a complex plea agreement Monday for business owner Daniel Swift, a former Crown Point School Board president.

Swift was arrested in December 2004 at his business, High School Sports Publication Inc., and charged with defrauding at least 13 Indiana and Illinois clients of more than $900,000 by selling them unregistered securities, that promised to pay interest rates of up to 14.8 percent.

Individual investments ranged from $3,000 to $250,000. Investors included a single mother, a person who lost a home and was forced to move to Michigan, a man who invested his wife's inheritance and a Purple Heart recipient.

The Indiana secretary of state's prosecution assistance unit undertook an investigation in September 2003, working with Lake County prosecutors and Crown Point police.

In June, Swift, 63, finally entered into a plea agreement with special prosecutors in which he pleaded guilty to eight felony counts in connection with 58 securities-related charges.

Swift agreed to pay partial restitution of $423,264.33 -- less than half of what he allegedly bilked from investors -- and serve a 16-year sentence that includes no prison time. He will serve half the time at the Kimbrough Work Release Facility and spend the remaining eight-years on probation.

Three failures to make timely restitution payments would cost Swift, who is self-employed, from 30 to 120 days in the Lake County Jail. A fourth lapse would result in Swift's serving the full 16-year sentence in state prison.

Victims long have criticized the length of the state's investigation and what they consider a lenient plea agreement.

During Monday's protracted and emotional sentencing hearing, Boswell herself probed the state's reasoning and impatiently challenged defense arguments.

Given that they stand to receive only a fraction of the money Swift squandered, Boswell said victims may well be seeking "satisfaction" rather financial return.

In an emotional statement to the court, Nancy Schultz, who worked for Swift at the high school publication, said she and her husband lost their $180,000 retirement nest egg, forcing them to sell their home and move to a small town in Michigan.

"But most of all, I have to live with the guilt of knowing that I was the one that convinced my family and friends to invest their money, and that is something I have to live with every day," she said. "They trusted me, and I trusted Dan Swift."

Boswell dismissed Swift's statement apologizing to the court and his plea for forgiveness. "It is an abomination and a disgrace to take your friends' money and misuse it," Boswell said.

Here is a column by Jerry Davich of the Gary Post-Tribune. Some quotes:
According to the plea agreement, Swift pleaded guilty to only eight counts of securities fraud, with the remaining counts dismissed by the state. Plus, he will immediately begin serving eight years at the Kimbrough Work Release facility, with an eight year suspended sentence.

Also, after a one-time payment of $31,000 to his victims, to be divided among them, he is to make regular monthly payments of only $2,000, again divided among them.

For instance, his biggest victims, Tim Roeske of Hebron and Nancy Schultz of Michigan, would receive $327.91 and $539.28 a month, respectively, each figure based on the amount of restitution owed by Swift.

Of course this is a drop in the bucket compared to what they "invested" through Swift.

At Monday's sentencing hearing, Roeske -- by far the most outspoken victim in this case -- left the courtroom early, either out of frustration, anger, or exhaustion.

Schultz and fellow victim Dennis Smith made a victim impact statement, as did the husband of the couple swindled for a quarter million dollars. He didn't plan on speaking. He felt compelled to say his peace.

He told Boswell the plea agreement should be tossed aside and Swift should be tossed in jail, as simply, justly, and righteously as that. But the machinations for Swift's justice were already set in gear months ago, possibly years ago.

One victim told me he lays full blame of this long-lingering case with the Indiana Secretary of State's Office. And politics may be at play.

The victim alleges Republican Secretary of State Todd Rokita purposely "dumped" this high-profile case on the Lake County prosecutor's office.

"The state bungled this case years ago knowing that no one in Lake County was qualified to handle it," the victim said. "And it turned out to be true."

Earlier this year, the case was transferred from the Lake County prosecutor's office to the Indiana Secretary of State's Office. Before that, Lake County Deputy Prosecutor Robert Neumaier was removed from the case after complaints from Swift's victims to the Indiana Commission on Judicial Qualifications.

Jim Gavin, spokesman for Rokita's office, told me Monday his office is pleased with the sentence, considering the circumstances.

"It's a rare sentence but a strong sentence," Gavin said, noting that it included the restitution of every penny ordered by law. "It also guaranteed a conviction."

Meaning if the case went to trial there is the chance Swift could have received a lesser sentence and the case could have dragged on for even more months or years.

Initially, the case involved up to 58 felony charges against Swift for up to $900,000 in securities fraud. Yet that figure of owed restitution was pared down to $423,264.

If Swift fails to make the aforementioned payments, he will serve time in Lake County Jail for 30, 60, or 120 days, or for the remainder of his sentence, depending on how many payments he has missed. But I doubt his victims would be so lucky.

"Has any case ever been handled this inefficiently?" asked Roeske, who has sent me several letters, calls and e-mails through the years venting his frustration.

Yesterday afternoon Davich had this brief story, headed "Indiana Secretary of State disagrees with column on Swift case."

And today the NWI Times has a second story by Susan Brown, headed "Swift case a lesson learned, prosecutors say: Investment fraud cases often leave victims dissatisfied with outcome." Some quotes:

CROWN POINT | Victims have criticized a plea agreement reached with a Crown Point businessman who squandered their life investments, but state and local prosecutors consider the outcome an overall success and a lesson learned for a sometimes-gullible public.

In writing to The Times following Monday's sentencing hearing for Daniel Swift, Indiana Secretary of State Todd Rokita said it's cases like Swift's that have driven his office to become more proactive in making the public aware that if an investment sounds too good to be true -- it probably is.

Similar white-collar crimes have risen by 25 percent in the last year with the economic downturn, according to state officials.

Swift had been charged with defrauding at least 13 Indiana and Illinois clients of more than $900,000 by selling them unregistered securities, in which he promised interest rates of up to 14.8 percent. Investors became suspicious more than five years ago and alerted Rokita's office, which handed the case over to Lake County Prosecutor Bernard Carter as required by law. In February 2009, Rokita said Carter used a new law to appoint members of Rokita's staff as special prosecutors. * * *

Victims said they doubted Swift, at 63 and self-employed, can follow through on the deal, but Jim Gavin, spokesman for the secretary of state's office, said the restitution amount of about $424,000 did represent every outstanding dollar as shown in charges filed by Lake County prosecutors. The state's special deputies, though appointed only in February, achieved a guilty plea within a matter of months, he said.

"(The plea agreement) does guarantee a conviction," Gavin said. "It guarantees a placement and has much stronger consequences than probation, which the judge had the discretion to impose."

Rokita called the outcome "extremely rare and positive" when compared with other white-collar crimes today. Swift's victims are getting far more of a return than those of Bernie Madoff, who received pennies on the dollar after losing billions, he said.

Carter, however, was less effusive, saying he was satisfied with the terms of the plea agreement yet understood the victim's displeasure.

"The plea agreement was brokered with the secretary of state's office with my supervision," Carter said. "Both offices met with the victims. We explained the problems, possibilities and options."

What was emphasized was the role of the prosecutor versus getting the money back, he said.

"Our main purpose is to get a conviction," he said. "We're not a collection agency."

Carter said the $900,000 loss was an accurate figure, reduced to less than half because some losses were found not to be within the five-year statute of limitations. Time had run out to amend the charges, he said. His office unsuccessfully sought Swift's cooperation in including those amounts in the restitution, he said.

Carter said the office was prepared to go to trial within the year required by law and sought only one continuance, unlike the defense, whose strategy was one of delay through repeated continuances.

"People stall for various reasons," Carter said. "The court knows that, and we know that."

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Court translation services spotty, but less so locally"

Sophia Voravong of the Lafayette Journal Courier reports today:

When a Hispanic girl, 7, took the stand during a criminal trial in May in Tippecanoe Superior Court 2, she was able to understand English and answer questions about her name and age.

But by her side stood a Spanish-language interpreter, who helped translate more complex questions posed by attorneys for the noticeably nervous girl.

"She can carry on conversational English ... but even for people born and raised in the United States, legal issues are difficult to understand," said Tippecanoe County Deputy Prosecutor Laura Zeman, who presented that case for the state.

"For legal matters, it's best for everyone to make sure witnesses are able to comprehend a question in full."

It's one example of how Tippecanoe County courts provide translation services for people who struggle to speak or understand English -- contrary to some state-level courts, according to a recent study by the Brennan Center for Justice, part of New York University's School of Law.

The study, "Language Access in State Courts," looked at 35 states, including Indiana, that have higher proportions of people with limited English proficiency. * * *

One aspect for which Indiana received low marks in the "Language Access in State Courts" study is that interpreter services are not automatically free of charge.

Indiana code allows each court decide how to cover costs.

Busch said judges here are bound by a January 2008 Indiana Supreme Court decision, which ruled that courts should provide translators if the defendant or litigant is indigent.

Those who can afford to hire a translator must pay on their own. The determination process is similar to whether a defendant is granted a court-appointed, public defender.

"When we do make the decision, the question is about the access in court and what needs to be provided -- whether it's a defendant or a witness," Busch said. "That is the top priority."

This ILB entry from July 7th, headed "People Forced to Appear in Court Without Interpreters, Violating Federal Law", discussed, quoted from, and linked to The Brennan Center for Justice at NYU School of Law's 80-page report, Language Access in State Courts. One of the quotes was:
The Department of Justice has also renewed its commitment to enforce interpreter requirements in the state courts. Just this past February, DOJ warned the Indiana Supreme Court that court systems receiving federal funds violate Title VI of the Civil Rights Act of the United States if they charge money for interpreters.
See the July 7th entry fro more.

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Indiana Courts

Environment - IDEM meetings introduce new antidegradation rules

Gitte Laasby reports today in the Gary Post-Tribune in a lengthy story:

MERRILLVILLE -- Polluters like BP would be allowed to increase pollution into Lake Michigan without justifying the increase under proposed new rules, critics say.

Environmentalists say the proposal by the Indiana Department of Environmental Management contains so many loopholes that it allows significant amounts of pollution to escape review.

Lyman Welch, water quality program manager with the Alliance for the Great Lakes, said under the new rule, BP could argue that the increased discharges of ammonia and silty materials -- that people protested in a firestorm in 2007 -- are exempt from requirements to justify the increase.

"Our major point is that Lake Michigan should have more protection and the ... process is there to force a thorough study and analysis about whether an increase in pollution is necessary," he said. "By exempting (certain) discharges into Lake Michigan, you avoid that process entirely."

The rules aim to protect uses of Lake Michigan and other lakes and streams by setting a limit on how much additional pollution can be discharged and under what circumstances.

IDEM plans to explain the "antidegradation" rules to the public at a meeting in Portage on Wednesday, Aug. 19.

In general, the new rules would allow polluters to discharge more as long as people can still use the water for the same purposes, for instance drinking, fishing and swimming. But polluters have to show the increase is "necessary to accommodate important economic or social development."

To prove that, a polluter would have to explore whether treatments to prevent the increase would be cost effective; examine the impact of the increase on human health, fish and aesthetics; and make sure benefits such as job creation would come from the increase.

But as long as the increase is below a certain threshold, polluters would not have to go through such an analysis to justify the increase.

The insignificance threshold for Lake Michigan is 1 percent of the amount of a pollutant that the lake could handle while still allowing people to drink the water, fish and swim. For waters outside the Great Lakes basin, the threshold is 10 percent.

IDEM is required to put in an insignificance threshold because of a 2000 law passed by the General Assembly. How to set the threshold has been a matter of debate between IDEM, industry, environmentalists and municipalities over the last year and a half.

"I would like to know how did IDEM come up with 1 percent versus a tenth of a percent or a one-hundredth of a percent or some even lower standard? I don't know what scientific justification they may have for any of that," Welch said. "If BP came up again under this rule, how would IDEM treat that? If that just gets exempted, is that the result people want in Indiana?"

Environmentalists proposed setting the insignificance level at the concentration of each pollutant already present in Lake Michigan. That means polluters would have to justify any increase above that concentration. (Increases are not allowed into Great Lakes waters for bioaccumulating chemicals, such as mercury.) If the increase is justified, it would be allowed.

Industry proposed a higher insignificance level and has argued increases that wouldn't significantly lower water quality should be allowed.

"It is important that the antidegradation process be designed to ensure that worthwhile projects are not unnecessarily discouraged, impeded or even halted because that would have profound effects on business and municipal planning with adverse impacts on economic growth and on society generally with little or no benefit to water quality," the Indiana Manufacturer's Association wrote in comments to IDEM.

A group of steel mills, including ArcelorMittal and U.S. Steel, made similar remarks.

"It is critical that the rules contain appropriate (insignificance level) provisions so that minor increases are not subject to an expensive, time-consuming regulatory review by IDEM before they can be authorized," the steel makers told IDEM.

For more information, here is IDEM's antidegradation page.

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Environment

Ind. Courts - Civil and criminal liability issues re accidental child death from sleeping with an infant

Tomorrow the Court of Appeals will hear oral arguments in a case where:

The Parents filed a complaint in Starke Circuit Court against the Schlamadingers, alleging that the Schlamadingers' negligence proximately caused the death of the Parents child. The Parents were overnight guests in the Schlamadingers' home, and they allege that the Schlamadingers did not provide an adequate place for the Parents' three-month-old child to sleep. The child suffocated during the night while sleeping on the couch with his mother.
Today the Fort Wayne Journal Gazette has a story by Michael Zennie headed "State reinforces dangers of sleeping with infants." The story begins:
Medical experts, law enforcement officers and child advocates want to spread the word – sleeping with your baby can be deadly.

Suffocation or other asphyxiation from unsafe sleeping kills more babies in Allen County than any other preventable cause of death – more than car crashes, more than drowning. Since 2008, it has claimed 12 lives, Deputy Allen County Coroner Patt Kite said.

Across the state, one baby a week suffocates because of unsafe sleeping, the Indiana Department of Child Services said.

But accidental suffocation is easily preventable. To that end, James Payne, director of the Department of Child Services, gathered with doctors, nurses, police officers and other experts in Fort Wayne on Tuesday to launch a new campaign to promote safe sleeping.

Officials stressed that babies should sleep alone on a firm mattress or in a bassinet; soft beds, pillows, blankets, couches and toys all pose suffocation risks for new babies; and that adults or older children can easily roll over and asphyxiate an infant without even knowing.

A July 30th article in the Wall Street Journal, by Chris Herring, begins:
In March, a slumbering Indiana father [ILB - this is not the same incident as that before the COA] accidentally suffocated his six-month-old son to death while both were sleeping on a sofa. Law-enforcement officials later determined that the man had used methamphetamine and smoked marijuana before falling asleep that night.

A month later, in Milwaukee, a one-month-old infant died while in bed with his parents and brother, possibly due to suffocation. Before coming home to sleep that night, the baby's mother had had three drinks at a nearby bar.

The tragedies are similar, but the way law-enforcement officials handled them is not. In the pending Indiana case, the father, Darik Morell, was charged with neglect of a dependent resulting in death, a felony that carries a 20- to 50-year prison sentence. An attorney for Mr. Morell, Chad Groves, called the incident "a horrible accident" and said he doesn't believe there is a clear link between his client's drug use and the baby's death.

No charges, in contrast, were filed in the Milwaukee case, or in two other bed-sharing deaths in the area since March.

Across the country, prosecutors are wrestling with how to treat what they say is a growing number of "rollover" deaths. The thorny questions in these and other child-neglect cases: At what point does carelessness, absent malicious intent, become punishable by criminal law? * * *

The legal standard governing criminal negligence varies by state, but the formulation in Wisconsin is fairly typical. There, a prosecutor is required to determine whether a certain act is "conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another."

Prosecutors are divided on how to apply the standard to bed-sharing cases or other accidental deaths, such as those that stem from auto accidents caused by fatigued drivers. Some say people should have to face criminal charges for their inattention, but others feel the tragedy itself should serve as punishment enough and that criminal proceedings are unnecessary. Said Matt Wilber, the lead attorney in Iowa's Pottawattamie County: "The No. 1 reason someone wouldn't file charges is because they feel bad for the family and don't want to pile on."

In addition, some prosecutors say filing charges in negligent bed-sharing deaths sends a strong message about the dangers.

A WSJ Blog entry by Rachel Emma Silverman, also from July 30th, commented on their paper's story, noting:
The piece explores the legal implications of such cases. In some instances, the sleeping parents had been under the influence of alcohol or drugs, but it is unclear how much of an effect that had on some of the deaths.

At the heart of the story is a thorny question: At what point does carelessness, absent malicious intent, become punishable by criminal law? These increasing “rollover” deaths are similar to another kind of parenting tragedy we’ve discussed previously: parents accidentally leaving their infants in the car, only to have the children overheat and die.

Prosecutors are divided on the legal treatment of such cases. Some say people should have to face criminal charges for their inattention, but others feel the tragedy itself should serve as punishment enough and that criminal proceedings are unnecessary. It can also be difficult to determine whether a child was smothered or simply stopped breathing on its own, a victim of a condition like Sudden Infant Death Syndrome.

Posted by Marcia Oddi on Wednesday, August 12, 2009
Posted to Indiana Courts

Tuesday, August 11, 2009

Environment - "St. Joseph County to consider windmills: Bill would regulate turbine installation in St. Joseph County"

Updating this ILB entry from August 9th, Ed Ronco reports today in the South Bend Tribune. Some quotes:

Tonight, the St. Joseph County Council will hold a public hearing on proposed regulations for building windmills.

So far, the turbines have gone up with little or no regulation.

"We put up eight of them without any type of permits because no one knew what to do with them," said Glen Smith, a sales representative for the turbine installer Wind-Wire, in South Bend.

Smith's firm has put up about 30 to 40 units in South Bend. The units run between $15,000 and $17,000.

There's nothing in the zoning code to regulate installation of wind turbines, said Larry Magliozzi, assistant director of the county's Area Plan Commission.

"The first thing is, St. Joseph County is saying yes, we should allow these," Magliozzi said. "But these are the circumstances and criteria under which we will allow them."

Those circumstances and criteria include:

-Limiting noise to between 52 and 55 decibels, less than the average air conditioner, which is about 60 decibels at 10 feet.

-Limiting the height in a residential district to 60 feet.

-Requiring lots with windmills to be a minimum of one acre.

-Requiring the turbines to withstand winds of up to 100 miles per hour. Officials say such winds are so strong and so rare, that if they actually occur, there would be bigger things to worry about than windmills.

-Requiring the windmills to be painted aesthetically pleasing colors — bright shades are out, and the color would likely be restricted to standard metal, white, gray or black.

-Requiring a single-pole design, instead of a lattice-work tower, which can be too easily scaled.

Tom Gruber, government liaison officer for the Home Builders Association of the St. Joseph Valley, said his group has concerns about the aesthetics of the windmills, which must tower above trees and nearby structures in order to pick up the most wind.

The association isn't opposed to wind generation, but it is concerned about the impact towers could have on buyers who might be deterred by a neighborhood with a lot of windmills.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Environment

Courts - "The search is on for a candidate for one of the most scenic jobs in American law: magistrate judge for the United States District Court in Yosemite National Park"

Here is the story in the NY Times, reported by Jesse McKinley, dateline Yosemite National Park.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Courts in general

Courts - "Bankruptcy Judges, Justice Dept. Rip Mortgage Companies"

This comprehensive set of resources from ProPublica, along with the story by Karen Weise, provides much useful material re mortgage servicers. A quote:

As mortgage delinquencies rise, more and more homeowners are learning the central role that mortgage servicers play in their lives. The legal cases show that role can be distressing. Judges have found that major mortgages servicers regularly mess up basic accounting, improperly credit payments and charge unwarranted fees. They’ve “not done a very good job of keeping the records,” said Judge Samuel Bufford of California.

Mortgage servicers — typically either bank subsidiaries or independent companies — handle the day-to-day work with homeowners, ranging from collecting monthly payments to determining when to modify or foreclose. Problems with servicing often, but not always, occur once homeowners start having trouble making payments.

Complaints to the government about mortgage servicers have soared in recent years. They’ve risen from 31 percent of the complaints that the Department of Housing and Urban Development received in 2006 to 78 percent in 2008, according to HUD spokesman Lemar Wooley.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Courts in general

Ind. Courts - "Job losses take toll on public defender funds"

From the Johnson County Daily Journal, this lengthy story ($$) by Annie Goeller. Here are some quotes:

College students and people who have never been in trouble before are telling courts they don't have the money to hire an attorney when they've been arrested.

Typically, their parents, spouses or families would hire an attorney to defend them.

But with a sluggish economy, many of those family members have lost their jobs, leaving the accused no choice but to ask the court for a public defender, attorneys said.

Public defenders, who are named to represent people who don't have the money to hire an attorney, are getting clients they typically wouldn't.

Some are college students, whose parents typically would foot the bill for trouble they got into while at school.

Others are adults who have never been in trouble and have turned to crimes such as theft to help them pay the bills.

"Instead of people who are 19, 20, 21 years old, we're seeing 29- and 30-year-olds who have had no record," attorney John P. Wilson said.

In December, Wilson represented a few shoplifters who said they were stealing from stores so their children would have Christmas presents.

Attorney Roy Dickinson said he is representing more people who are unable to pay child support after losing their jobs. He believes his caseload will increase more in the coming months as more people who have lost jobs no longer can pay their bills.

"There are a lot of people out of work, and there are just not as many jobs," he said.

The increase is comparable to that seen by social service and charitable organizations, who also are handling more requests for assistance, attorney Dan Vandivier said. * * *

Getting a public defender requires more than just asking, judges said.

Each court has its own way of determining whether a person is in need.

Circuit Judge Mark Loyd looks at how a person's income compares to the federal poverty level. If the person can't afford an attorney's fees but earns above poverty level, he can require that the defendant pay a monthly fee to help pay for their defense.

Hamner reviews people's expenses, income and job status.

If people are unemployed, he has asked that they bring in copies of job applications they have submitted to show they are looking for work.

If they are employed, he looks at their income, property they own and their bills, such as whether they have a cell phone or cable to see if they could make some changes to afford attorney fees, Hamner said.

"Nobody can 'afford' a lawyer. It's not a part of their budget. But can they pay?" he said.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides 7 Indiana cases today

U.S. v. Floyd Deberry (ND Ind., Judge Simon)

In Estate of Moreland v. Dieter (ND Ind., Judge Simon), a 23-page opinion, Judge Dow [ND Ill., sitting by designation] writes:

Plaintiff-Appellant, the Estate of Christopher Moreland (the “Estate”), filed a motion for a writ of execution to enforce a judgment against St. Joseph County, Indiana and its Board of Commissioners (the “County”), pursuant to Indiana Code § 34-13-4-1 and Rule 69 of the Federal Rules of Civil Procedure. The district court denied the Estate’s motion. Because we conclude that the state law that the Estate seeks to invoke was not intended to apply retroactively, we affirm the order of the district court. * * *

Conclusion The beating death of Christopher Moreland reminds us, as this Court recently put it, that “[t]he distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.” United States v. Bartlett, 567 F.3d 901, 903 (7th Cir. 2009). When public employees reveal through their actions exactly how short that distance is, they necessarily erode popular confidence in public institutions. Nevertheless, absent the predicates for direct legal liability against a governmental entity, determining how to restore that confidence is a matter of public policy rather than judicial construction. St. Joseph County, Indiana, may choose to compensate the Estate for the conduct of its officers, but because the Indiana General Assembly did not make its amendment to Ind. Code. § 34-13-4-1 retroactive, it is not a choice that we have the authority to impose. The order of the district court is AFFIRMED.

U.S. v. Virgil Smith (ND Ind., Judge Lee)

U.S. v. Jeffery Dean (SD Ind., Judge Barker)

In Antonio M. Johnson v. Steven Scott (ND Ind., Cosbey, Magistrate Judge), a 7-page opinion, Judge Wood writes:

When a suspect waves the white flag of surrender, the use of force in connection with an arrest may, as an objective matter, become unnecessary and inappropriate. Not all surrenders, however, are genuine, and the police are entitled to err on the side of caution when faced with an uncertain or threatening situation. This case involves Antonio M. Johnson, a suspect in a shooting who fled police first by car and then on foot. He made a last-second surrender when Sergeant Steven Scott and Archer, Scott’s German Shepherd police dog, were closing in on him. Archer bit Johnson’s left arm, and Scott struck Johnson in the process of handcuffing him.

Johnson filed suit under 42 U.S.C. § 1983 alleging that Scott used excessive force in violation of the Fourth Amendment during the course of the arrest. Scott filed a motion for summary judgment, which the district court granted. Johnson now appeals that decision to this court, and we affirm.

In Carlisle et al v. Deere & Co. (ND Ind., Judge Moody), a 17-page opinion, Judge Kanne writes:
The Beast, manufactured by Bandit Industries, Inc., is a commercial-grade tree grinder that weighs approximately 60,000 pounds and is the size of a semi-trailer. The Beast feeds on logs up to thirty-six inches in diameter, reducing them to mulch at a rate of up to one acre’s clearance per day. In 2002, the plaintiffs, Steve Carlisle and John Buszkiewicz, purchased a Beast, equipped with a 12.5-liter John Deere engine, for use in their landscaping and excavating business. Carlisle and Buszkiewicz soon discovered, however, that their Beast lacked the muscle befitting its name. The machine failed to perform as advertised, and the two men sued John Deere, seeking payment under the terms of an engine warranty. The district court granted summary judgment in Deere’s favor, a decision that we now affirm. * * *

We conclude that the Performance Programming Connector’s wiring was not the result of Deere’s workmanship or installation. As such, the wiring was not included under the terms of the warranty. We cannot hold Deere liable for breaching a promise it never made. See Ind. Code § 26-1-2- 313(1)(a). Because Deere’s warranty did not cover a thirdparty’s wiring of the PPC, we AFFIRM the district court’s order granting summary judgment in Deere’s favor.

In U.S. v. Powell and Harris (ND Ind., Judge Simon), a 30-page opinion, Judge Manion writes:
A grand jury indicted Willie Harris, a Gary, Indiana, lawyer, and Roosevelt Powell, who collected property taxes on behalf of Lake County, Indiana, for their role in the sale of two properties to the Gary Urban Enterprise Association. A jury found Harris and Powell guilty of wire fraud, conspiring to defraud the United States, and filing a false tax return. They appeal. We affirm their convictions and Harris’s sentence, but vacate Powell’s sentence and remand to the district court for further proceedings. * * *

The Gary Urban Enterprise Association (“GUEA”) was such an association; businesses located within the Gary enterprise zone contributed heavily to it in lieu of paying inventory taxes. However, due to a combination of a large pot of money at the GUEA’s disposal—as much as five million dollars a year—and minimal oversight over how the money was to be spent, the GUEA attracted a corrupt abuse of the funds. The GUEA was ultimately dissolved after an investigation revealed that the GUEA’s executive director, JoJuana Meeks, was treating the GUEA as her personal bank account. Prior to its demise, however, the GUEA had embarked on a propertypurchasing spree, acquiring many properties in Gary for the purpose of redeveloping them. The convictions of defendants Roosevelt Powell and Willie Harris in this case resulted from their roles in the sale of two properties in Gary to the GUEA: a former grocery store located at 6300 Miller, and a vacant building located at 768 Broadway. * * *

The government presented sufficient evidence that Powell and Harris knowingly participated in a scheme to defraud the Historical Society that involved the use of the interstate wires, and both Powell’s and Harris’s convictions under 26 U.S.C. § 7206(1) survive review for plain error. Furthermore, the district court properly calculated the loss amount used to determine both Harris’s and Powell’s sentences by adding the $150,000 proceeds the defendants purloined from the sale of 6300 Miller to the $58,000 Lake County lost in property taxes as a result of the fraudulent lawsuit. The district court also correctly enhanced Harris’s sentence based on his failure to comply with the grand jury subpoena requiring him to hand over accounting schedules material to the government’s investigation of his 2001 tax returns. And the disparity between Harris’s sentence and Powell’s was warranted. We therefore AFFIRM the defendants’ convictions and Harris’s sentence. However, because the district court appeared to improperly reject Powell’s arguments for leniency based on his advanced age and poor health, we VACATE and REMAND Powell’s sentence for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Rockford Mutual Ins. Co. v. Terrey E. Pirtle , a 15-page opinion, Judge Kirsch writes:

Rockford Mutual Insurance Company (“Rockford”) appeals from a jury verdict in favor of Terrey E. Pirtle in his action against Rockford for breach of contract. Rockford raises the following issues for our review: I. Whether Pirtle's recovery under the policy is limited to the actual cash value of the building because of Pirtle's failure to comply with the repair and replacement cost policy provision of his policy; II. Whether Pirtle's suit was barred by the contractual one-year-limitation period provision in the policy; and II. Whether Pirtle's damages can include consequential damages and amounts exceeding policy limits. We affirm.
In Derrick Chance Hardy and Robert T. Hardy v. Ashly Megan Hardy, a 14-page opinion, Judge Darden writes:
Robert M. Hardy (“Father”) and Derrick Chance Hardy (“Son”) challenge the trial court's order denying their request for reformation of the underlying warranty deed and ordering the partition and sale of the land as requested by Ashly Megan Hardy (“Daughter”). * * *

Lastly, we are not persuaded by Father and Son's testimony, given that the evidence shows that together they repeatedly acted against Daughter and her interests from the very beginning. Father, in particular, has shown himself to be extremely calculating when it comes to safeguarding his own personal interests. He coordinated with Son to conceal the valuable lease agreements; pocketed considerable rental proceeds for his own personal benefit; and went so far as to forge Daughter's signature when it served his interest to do so. Father has consistently, and without impunity, manipulated the circumstances to his benefit. Inasmuch as Father contends that his counsel made an error in drafting the warranty deed, which error resulted in his intent not being realized, we have only his and Son's self-serving assertions that such is the case and are not persuaded. Thus, we conclude that Father's present attempt to seek reformation of the warranty deed by injecting new terms (i.e. creation of a life estate or implied trust) appears to be yet another attempt to manipulate the circumstances to his benefit.

In Term. of Parent-Child Rel. of J.H., A.G., Z.G., & P.M.; Z.M. v. IDCS, an 11-page opinion, Judge Riley writes:
Appellant-Respondent, Z.M. (Father), appeals the trial court's Order terminating his parental rights to his minor child, P.M. We affirm.

Father raises one issue on appeal, which we restate as follows: Whether the trial court erred in terminating Father's parental rights to P.M. when the Marion County Department of Child Services (DCS) had entered into an agreement with Father granting him the right to exercise visitation rights with his minor son. * * *

Father does not contend that the DCS failed to support the required statutory elements for termination by clear and convincing evidence; rather, Father's sole contention is that the trial court's Order terminating his parental rights is inconsistent with the March 27, 2008 agreement which provided that Father would have supervised visitation with his son as long as he participated in drug screens. * * *

Similarly, we believe that allowing parents to avoid the consequences of the termination of their parental rights by executing an agreement providing for visitation, or any other parental right, in an attempt to circumvent Indiana Code section 31-35-6-4(a)(1), would impermissibly tie the hands of the trial court and the DCS, while at the same time discourage future adoption of the child whose parents' rights have been terminated. Nevertheless, we also acknowledge that the agreement entered into between Father and DCS was valid until the trial court issued its Order terminating Father's parental rights to P.M. However, we conclude that the agreement became void at the moment the trial court entered its Order terminating Father's parental rights. This holding furthers the strong public policy underlying Indiana's termination statutes in protecting our children's emotional and—in some instances—physical well-being and in avoiding protracted instability and uncertainty in the lives of children whose parents have failed to rectify their situation or refuse reunification outright.

Based on the foregoing, we conclude that the trial court did not err by terminating Father's parental rights.

NFP civil opinions today (2):

Great Northern Insurance Co. and Federal Insurance Co. v. Precision Plastics of Indiana, Inc. (NFP) - "Appellants-Plaintiffs Great Northern Insurance Company and Federal Insurance Company (“Insurance Company”) appeal the grant of partial summary judgment to Appellee-Defendant Precision Plastics of Indiana, Inc. (“Precision”) as to scope of the Insurance Company’s duty to defend Precision in an underlying environmental contamination matter. We affirm in part, reverse in part."

In the Matter of the Guardianship of R.S.; J.S. v. B.S. (NFP)

NFP criminal opinions today (5):

Jose L. Hernandez v. State of Indiana (NFP)

Dexter L. Burns v. State of Indiana (NFP)

Ebonee Jackson a/k/a Ebonee Jackson-Taylor v. State of Indiana (NFP)

Willie Pope v. State of Indiana (NFP)

James M. Burns v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Ind. App.Ct. Decisions

Law - Wisconsin governor's counsel not admitted to Wisconsin bar

Jason Stein of the Wisconsin State Journal reported yesterday:

Gov. Jim Doyle’s chief legal counsel resigned today after the Republican Party of Wisconsin filed a complaint with state regulators alleging that she was practicing law without a license.

“Chandra Miller Fienen has voluntarily tendered her resignation. She realizes that she has placed this office in a difficult position,” Doyle spokesman Lee Sensenbrenner said in a statement. * * *

Chandra Miller Fienen was hired to the office of legal counsel in 2008 after serving as the number three official in the state Department of Commerce.

The Republican Party’s complaint with the state Office of Lawyer Regulation alleges that Miller Fienen engaged in the unauthorized practice of law by presenting herself as Doyle’s “chief legal counsel” in documents addressed to the party.

In a statement, Doyle spokeswoman Carol Andrews said Miller Fienen had practiced law in California and been hired as a “senior adviser” on issues such as education and commerce. She said Miller Fienen hadn’t practiced law without a license or exceeded her authority.

Miller Fienen is not listed as a licensed lawyer by the state Bar of Wisconsin. But her father, budget committee co-chairman Sen. Mark Miller, D-Monona, said Friday that his daughter had passed her bar exam “within the last year.”

Much ado ...

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to General Law Related

Ind. Courts - Still more on: Managing the electronic communication revolution in the Indiana courtroom

Updating this ILB entry from Aug. 4th, Katherine A. Helm (currently clerking for a U.S. district court judge in California and will soon be clerking for a U.S. court of appeals judge in Washington) writes for The National Law Journal in a lengthy article:

The explosion of Web 2.0 technology has revolutionized the world. Given the role Twitter played in the Iranian election fallout, perhaps we shouldn't be surprised to hear about a juror twittering in court or a witness texting on the stand. Some might even think it pedestrian to lament that trials are being waylaid by interactive technology in courtrooms. Yet this phenomenon has rivaled swine flu mania among the legal bar with good reason. The use of electronic devices like cell phones and BlackBerrys by jurors and witnesses, in a manner that disrupts and taints court proceedings to the level that presiding judges are forced to declare a mistrial, is serious injustice indeed. * * *

An informal scan of the judicial landscape indicates the reaction of many judges to date has gone one of two ways: Either avoid the issue and hope that your court is not the one that will need to declare a mistrial, or else mitigate the problem by modernizing jury instructions regarding the duties not to interfere with or otherwise mar the presentation of evidence. Although the second option is more commendable than inaction, it probably doesn't best manage the problem, either.

The best way to manage this problem is one that only a handful of courts across the country have adopted: Allow preauthorized counsel to bring electronic devices into the courtroom and make all other courtroom attendees (jurors, witnesses, observers) check their devices in the lobby. The Southern District of New York is testing out such an interim rule now, where authorization can be given only by specific court order -- although being forced to specify each device for each named attorney each day might be overkill.

A generalized preauthorization rule for lawyers would solve the constitutional defense question, many of the jurors-gone-wild scenarios and the witness going rogue on the stand situation. It would also address security concerns that the press or public could be surreptitiously recording court proceedings or photographing jurors or witnesses. Enforcement of the rule would also mitigate courtroom disturbances caused by the typical cacophony of cell phone ringers and the like.

More courthouses should incur the extra cost to have the U.S. marshals run a check-in system at security screenings, like the ones at museums and concert halls, to avoid the incalculable costs of mistrials due to tainted proceedings. The recent National Sheriffs' Association conference discussed this effort for sheriffs at state courts and for U.S. marshals in federal courts. Now is the time for the U.S. Marshals Service to invest in this court security across the nation. It may not be a panacea, but it is progress and it avoids further balkanizing individual courts, courthouses or districts with splintered self-policing.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Indiana Courts

Law - The Department of Justice Guide to the Freedom of Information Act (2009 Edition)

Available here.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to General Law Related

Environment - Tom Easterly recovering from heart surgery

Indiana Department of Environment head Tom Easterly had a quadruple bypass last week. No word yet on how long he will be out or who will be in charge in the interim. Easterly was appointed by Gov. Daniels at the beginning of the Governor's first term.

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Environment

Courts - "In Retirement, Justice O'Connor Still Rules "

From the Wall Street Journal today, a long story by Jess Bravin that begins:

Sonia Sotomayor just became the third woman to move from the appellate bench to the U.S. Supreme Court. The first woman on the nation's highest court has gone in the opposite direction.

Though she retired in 2006 to look after her ailing husband, Justice Sandra Day O'Connor is still out there judging. Unbeknown even to some of her former colleagues on the Supreme Court, the 79-year-old jurist has been visiting federal appellate courts across the country, filling in as a substitute judge when vacations or vacancies leave their three-member panels understaffed.

"It's nice to keep your hand in a bit," she said in an interview in the chambers she still keeps at the Supreme Court.

As a substitute judge, Justice O'Connor has heard nearly 80 cases and written more than a dozen opinions. In her 24-year Supreme Court tenure, she often provided the pivotal vote on such issues as abortion, affirmative action and religious freedom. Nowadays, she decides such matters as whether a drug dealer could escape punishment because a search warrant listed one household trash can instead of two.

Unlike the Supreme Court, which cherry-picks only 1% of the 10,000 cases it is petitioned to hear, the appellate court must take an appeal from almost any loser in federal district court. Cases almost never plumb heady legal issues, but instead revolve around some quotidian -- some might even say boring -- facts. "Some fact-bound criminal case is not of special interest to me, I have to confess," she says. Most of her caseload is "not particularly demanding, intellectually."

Rather than probing the Constitution's subtleties, says Judge Michael Boudin, who has sat with Justice O'Connor in his Boston courtroom, "99% of it doesn't have the intrinsic political or public implications of a typical Supreme Court case." * * *

Occasionally, the justice learns firsthand the limited discretion of a lower court judge.

"I now have occasion to have to apply some of those [Supreme Court] holdings with which I didn't agree when they were made, but of course now they're binding," she says. "It hasn't caused me to change my mind on a previous dissent. But that's water over the dam."

In June, Justice O'Connor found herself outvoted on an appellate panel for the first time. Two circuit judges decided that copper tubing stolen from air-conditioning units on a Houston rooftop were excluded from an insurance policy.

She filed a vigorous dissent. "Imagine that valuable devices or appliances are sealed within a building's interior walls," she wrote. "Under the majority's view, damage caused by tearing into these walls could not be covered."

Posted by Marcia Oddi on Tuesday, August 11, 2009
Posted to Courts in general

Monday, August 10, 2009

Courts - Wine shipping dispute involving Maine and Oregon, with the latter represented by IU Law Prof. Tanford [Update]

[Updated 8/11/09] This is a red-face item for sure. An alert reader was nice enough to let me know that the following article in the Maine newspaper that I took to be current is dated April 11, 2006! I thought about removing it, but decided to let it stay, with this information attached at the top.
---------------------------------------------------------------------------------------------------------------------------------------

Liz Chapman of the Lewiston Maine Sun Journal reports:

The state is being sued in federal court by an Oregon winery that alleges a ban on direct sales of wine over the Internet is unconstitutional.

A legislative committee on Friday voted 9-3 against a bill that would open the borders for direct wine sales from out of state. The measure has not yet been debated by the full Legislature.

In its lawsuit against Gov. John Baldacci, Attorney General Steven Rowe and other state officials, Cherry Hill Vineyard of Rickreall, Ore., alleges that the state discriminates against out-of-state wineries because the only way they can sell directly to Maine consumers is to open a retail store in Maine.

The winery also alleges that state law violates the commerce clause of the U.S. Constitution, which allows for the free flow of commerce among the states.

State law bans the direct shipment of wine to consumers by either Maine or out-of-state wineries, diffusing the argument that the law discriminates against out-of-state operations, according to Assistant Attorney General Christopher Taub.

The state also argues that federal law gives the states the right to regulate and control liquor and wine consumption.

Taub said Monday a U.S. Supreme Court decision in May 2005, which struck down laws in Michigan and New York that banned direct Internet wine sales, is not relevant to Maine's suit. Taub said the key distinction is that the Michigan and New York laws allowed only in-state wineries to ship their product directly to consumers and therefore did discriminate against out-of-state wineries.

Maine law requires large wineries to distribute their products only through wholesalers, Taub said.

The state is most concerned about direct Internet sales because of the potential for sale to minors which, under Maine liquor laws, is defined as anyone under the age of 21, Taub said.

But law professor James Tanford of the Indiana University School of Law, representing the Oregon winery, said Monday states are slowly modernizing their liquor laws - some for the first time since the end of Prohibition.

Tanford disagrees with Taub on all the key arguments. In particular, Tanford said judges laugh at attorneys general who use the argument that direct sales could lead to illegal sales to minors.

"That argument has superficial appeal," he said, "but it's simply a red herring."

Tanford argues that minors can already get any kind of liquor if they want it. And they usually don't want wine, he said.

Internet wine sales are expensive and they don't arrive for up to two weeks.

"They (young drinkers) scrape together $3 for a six pack of beer and they want it now," Tanford said.

America's small wineries have given up on trying to get state legislatures to update the liquor laws and instead have turned to the courts. Tanford said laws in more than 20 states have been challenged in federal court since 1998. Half are still pending, but the wineries have won every case but one, he said.

He said the better way to avoid sales to underage buyers is to allow direct shipping, which would require alcohol shipments to be well labeled and for consumers to prove their ages.

Meanwhile, Lt. Patrick Fleming, who oversees liquor enforcement of Maine retailers, conceded Monday the state has no real way to enforce the existing ban on direct sales. Not only does the state lack the money and manpower to track down shipments, Internet liquor sales are hard to track if the buyer isn't honest about what's in the package.

Fleming said the state would investigate suspected shipments, on a case-by-case basis, if someone filed a complaint or report.

No one has filed a complaint in the three years since the state all but dismantled its liquor enforcement operation, he said.

"It's not something you can be proactive about," Fleming said.

The federal lawsuit is filed in the U.S. District Court in Bangor. Taub said he doesn't expect a decision until late in the year.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Courts in general

Ind. Decisions - "Apparently there are all sorts of surprises in the special session budget"

Thanks to Joel Schumm of IU Law for pointing out to me the footnote on the last page of D.S. v. State of Indiana, reviewed in the ILB entry immediately below. Judge May writes in note 2:

We pause to note a recent change to one of the statutes implicated in this case. When the court issued its modified dispositional order placing D.S. in the Rite of Passage program, Indiana law provided that IDCS was “not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b).” Ind. Code § 31-40-1-2(f). During the 2009 Special Session of the Indiana General Assembly, Indiana Code § 31-40-1-2(f) was amended as follows: “The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director’s designee.(Emphasis added). However, because the change to Ind. Code § 31-40-2-1(f) did not become effective until July 1, 2009, it is inapplicable to the present case.

Joel shows how the language changed:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b). is not recommended or approved by the director of the department or the director's designee.
This is the second special session budget language surprise the ILB has run across in the past few days. The other is the language limiting use of golf carts to cities and towns which have passed authorizing ordinances -- with no equivalent authority for counties. This has reportedly caused havoc with some long-time practices. See the entries from August 9th ("New golf cart laws may need corrective amendments") and August 5th ("New golf cart law, as amended, may work a hardship on those outside Culver town limits"). The final paragraph of the August 5th entry points out that the problems arise from language inserted into the special session budget bill.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 8 NFP)

For publication opinions today (7):

In Dwight R. May v. Jerry George, an 11-page case, Judge May writes:

Dwight R. May sued Jerry George for negligence after he was injured by a tree that fell from George‟s property. George filed a motion for summary judgment, which the trial court granted. * * *

On July 10, 2008, George filed a motion for summary judgment. George argued that under Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991), a rural landowner does not owe a duty to protect others outside the land from physical harm caused by a natural condition of the land. George designated evidence that the land was rural and he did not have actual knowledge the tree was in a dangerous condition. This evidence included the police report; George's deposition and affidavit; May's deposition; the deposition of Dan Lucas, the superintendent of the Lawrence County Highway Department; and the report of Joseph Rainwater, a certified arborist. * * *

In order to establish a claim of negligence, May must show: (1) George owed May a duty, (2) George breached that duty, and (3) the breach proximately caused May's injuries. See Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1279 (Ind. Ct. App. 2007), trans. denied. Negligence cases are usually fact-sensitive; however, a defendant is entitled to judgment as a matter of law if the undisputed facts negate at least one element of the plaintiff's claim. Id. The existence of a duty is a question of law. Id. * * *

May has not designated any evidence that George owed him a duty; therefore, we affirm.

In Lincoln Bank v. Conwell Construction, Hedger Construction, Inc., Mitchell Construction, Inc., et al, a 12-page opinion, Judge Bailey writes:
This dispute concerns a real estate developer and its five creditors. Lincoln Bank appeals the trial court’s order in which it concluded that Lincoln Bank’s mortgage was merely equal in priority to four mechanic’s liens. We reverse and remand with instructions, holding that the mortgage has priority over the mechanic’s liens.
Issue. * * *

The dispositive issue is whether the trial court erred in concluding that the mortgage and the four mechanic’s liens were equal in priority. * * *

For these reasons, we conclude that the trial court erred in ordering the five creditors to share equally in the foreclosure proceeds. Instead, the first priority is to satisfy Lincoln Bank’s mortgage. After that, the four mechanic’s liens are equal in priority.

D.S. v. State of Indiana - "The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the Madison Superior Court’s modified dispositional order placing D.S., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *

"The court concluded IDCS’s placement recommendations were contrary to D.S.’s best interests. It placed D.S. in the Rite of Passage program and supported its order with specific factual findings based on ample evidence of D.S.’s history of drug abuse, gang affiliation, and expulsion from school, D.S.’s athletic and leadership abilities, his family relationships, his wishes and those of his mother, and the Probation Department’s formal recommendation. The trial court’s findings support its placement decision. We therefore cannot conclude that the trial court committed clear error in ordering that D.S. be placed in the Rite of Passage program."

Truck Finance Specialists, Inc. v. W & S. Leasing, Inc., et al "When they formed TFS, the Wades consented to Wiger and Smith essentially having permanent majority representation on TFS’s board of directors, unless Wiger and Smith decided to give up such representation. The trial court correctly concluded that the Wades’s attempt to remove Wiger and Smith from the board, amend the articles of incorporation to operate without a board of directors, and nullify the original bylaws were in violation of the IBCL, as well as the original articles of incorporation and bylaws. We affirm the trial court’s decision reinstating Wiger and Smith to the TFS board, as well as reinstating the original bylaws, and ordering TFS to rescind its amended articles of incorporation."

In Tamatha M. Nealy and John Nealy v. American Family Mutual Ins. Co., Shadawn Quinn, and Courtney Hammonds, a 16-page, 2-1 opinion, Judge May writes:

Tamatha and Hannah Nealy (collectively, ―The Nealys‖) appeal the grant of American Family Insurance’s motion for setoff and the denial of their motion to correct error and for additur. * * *

The trial court erred to the extent its grant of American Family’s motion for setoffs was premised on the advance payment statute, and the language of the Nealys’ policy did not permit the setoffs. We therefore reverse and remand for entry of judgment in the amount of the jury verdicts.

BARNES, J., concurs.
BAKER, C.J., concurs in part and dissents in part. [which begins, at p. 14] I respectfully dissent from the majority’s conclusions regarding the payments made by American Family to cover the Nealys’ medical expenses. I believe that the advance payment statute applies to these facts.

Phillip Stewart and Judith Stewart v. TT Commercial One, LLC, Thompson Thrift Inc., and Omer J. Stocker, Jr. - "Phillip Stewart and Judith Stewart (collectively, the “Stewarts”) appeal the trial court's grant of summary judgment to TT Commercial One, LLC (“Commercial One”), Thompson Thrift Development, Inc. (“Thompson Thrift”), and Omer J. Stocker, Jr. (collectively, the “TTCO Parties”). The Stewarts raise several issues, which we revise and restate as: I. Whether the trial court erred by granting summary judgment to the TTCO Parties; and II. Whether the trial court erred by ordering the Stewarts to pay attorney fees incurred by the TTCO Parties.

"We affirm in part, reverse in part, and remand."

Emmanuel McClendon v. State of Indiana - "Emmanuel McClendon appeals his conviction of and sentence for murder. We hold there was no error in the admission of evidence, the evidence was sufficient, the bailiff's communication with the prosecutors was harmless, and his sentence is appropriate. Therefore, we affirm."

NFP civil opinions today (5):

Shannon Harshman v. Randy Harshman (NFP)

Jeffrey and Michelle Holewinski v. The Landings Homeowner's Association (NFP) - "The Holewinskis appeal pro se, citing no legal authority, but claiming it is inequitable that they should have to pay HOA dues while the common areas of their housing complex are not adequately maintained. As best we can discern, they disagree with the small claims court’s determination that it lacked jurisdiction to order the equitable relief sought by the Holewinskis. * * *

"The jurisdiction of a small claims division of a superior court is limited to that which is granted by the Indiana Constitution or statute. Buckmaster v. Platter, 426 N.E.2d 148, 150 (Ind. Ct. App. 1981). A small claims court may award limited damages, but does not have power to award injunctive relief apart from the statute. Olympus Props., LLC v. Plotzker, 888 N.E.2d 334, 337 (Ind. Ct. App. 2008). As such, the small claims court correctly determined that it lacked jurisdiction to order the HOA to perform certain repairs requested by the Holewinskis or to remove HOA officers. The dismissal of the equitable claims was appropriate. Affirmed."

W.G., Alleged to be CHINS; A.G. v. IDCS (NFP)

Term. of Parent-Child Rel. of N.D., et al; S.D. v. IDCS (NFP)

Term. of Parent-Child Rel. of S.L., et al; A.L. & P.L. v. IDCS (NFP)

NFP criminal opinions today (3):

Billy Dee Williams v. State of Indiana (NFP)

Lawrence Lee Jones v. State of Indiana (NFP)

Logan LaSalle Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Litigants become their own lawyers"

The LA Times' John Keilman has a story today on "people are navigating the justice system themselves." The ILB has a long list of earlier entries on this topic. Some quotes from today's story:

Reporting from Chicago -- When Marsha and Larry Lipsky wanted to evict a troublesome tenant from their home in Arlington Heights, Ill., they consulted a few attorneys but couldn't afford fees that ran from $500 to $5,000.

So they did what a lot of people with legal trouble are doing these days: They became their own lawyers.

"I was a nervous wreck," Marsha Lipsky, 67, said after presenting her case to a judge and winning an order for the tenant to leave.

Legal service has never come cheap. But lawyers, judges and other experts say that for many people, the recession has made it a nearly impossible expense. So more litigants are navigating the often-bewildering justice system by themselves.

Advocates and court officials have responded with expanded advice desks, instructional websites, even plans to connect litigants with law students by computer. But the trend still alarms many observers, who say courtrooms weren't made for amateurs.

"In a complex domestic-relations dispute or commercial dispute, it's kind of like trying to do surgery on yourself," said Bob Glaves of the Chicago Bar Foundation, which funds numerous legal assistance programs. "If you're not trained in these things, you have no chance."

Anyone facing jail time for a criminal offense is guaranteed legal help, but that is not true for civil cases, which include foreclosures and lawsuits over unpaid credit card bills.

Many low- and middle-income people have been left to square off against professional attorneys who represent banks, collection agencies and other deep-pocketed organizations.

Cook County Associate Judge Thomas More Donnelly, who until recently ran a courtroom for those fighting wage garnishments and frozen bank accounts, said such contests were often stark mismatches.

He recalled cases in which defendants didn't know about a state law that allows debtors to keep up to $4,000 safe from creditors.

He would tell them about it, but if they didn't understand what he was saying, he would have to drop the matter because he had to remain impartial.

"It would be so distressing to me," he said. "There are things that are known to everyone in the courtroom except the debtor."

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Courts in general

Ind. Gov't. - "Legislative resolutions add up: 29 hours spent on such measures"

Eric Bradner of the Evansville Courier & Press reports today in a story that begins:

INDIANAPOLIS — Ripped apart for months, locked in a bitter and partisan debate over the state's next budget, the Indiana General Assembly could have quickly packed up and shuffled off after approving a compromise just in time to prevent a state government shutdown.

Instead, it chose to stick around for just a few more minutes and come together to pass one more measure. State lawmakers' final act this year wasn't clearing a budget; it was passing a resolution memorializing Gary, Ind., native Michael Jackson.

The gesture was a harmless one — no distraction, since their work was done. But as for the 446 resolutions brought up during the inconclusive regular session, which ended April 29, some good-government advocates say time was wasted.

Even though they didn't finish work on a new state budget in time to avert a special session, state lawmakers spent 29 hours during this year's regular session on resolutions — back-patting measures with no actual impact — on the Indiana House and Senate floors.

Sugar cream pie was honored as "Hoosier Pie." A lobbying group was thanked for providing Wal-Mart gift cards to legislators and staffers. And the beverage lobby won the "sincere appreciation" of the Senate for donated soft drinks, which "refresh and rejuvenate members and employees of the Senate as they complete the arduous legislative process," according to Senate Resolution 98.

"It is a tremendous distraction from some of the real important issues of today," said Julia Vaughn, a lobbyist for the advocacy group Common Cause Indiana.

The General Assembly sometimes sees its deliberations on bills that could become laws waylaid for more than an hour by time spent on resolutions, as high school sports teams are lined around chamber floors and the elderly are brought out for 100th birthday celebrations. The longest string of such resolutions came April 21 when the Senate spent two full hours on them.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Indiana Government

Courts - "Mentally Ill Offenders Strain Juvenile System"; related stories

Solomon Moore of the NY Times has this long story today. Some quotes:

As cash-starved states slash mental health programs in communities and schools, they are increasingly relying on the juvenile corrections system to handle a generation of young offenders with psychiatric disorders. About two-thirds of the nation’s juvenile inmates — who numbered 92,854 in 2006, down from 107,000 in 1999 — have at least one mental illness, according to surveys of youth prisons, and are more in need of therapy than punishment.

“We’re seeing more and more mentally ill kids who couldn’t find community programs that were intensive enough to treat them,” said Joseph Penn, a child psychiatrist at the Texas Youth Commission. “Jails and juvenile justice facilities are the new asylums.”

At least 32 states cut their community mental health programs by an average of 5 percent this year and plan to double those budget reductions by 2010, according to a recent survey of state mental health offices.

Juvenile prisons have been the caretaker of last resort for troubled children since the 1980s, but mental health experts say the system is in crisis, facing a soaring number of inmates reliant on multiple — and powerful — psychotropic drugs and a shortage of therapists.

Lindsay Machak has this story today in the Indianapolis Star, headlined "Marion County program fills void in helping at-risk youth: Study finds about half of county's at-risk youths aren't being reached." A quote:
The Center for Health Policy conducted a survey of 326 local organizations serving people younger than 25 in Marion County. They gathered information about how well agencies were reaching children, center spokeswoman Lyndy Kouns said.

"Whether it be a club they attend after school or actual foster care case management, it didn't matter," she said. "We covered the whole spectrum."

The report showed that agencies indicated about 50 percent of at-risk youths were not being reached.

After looking through the survey's findings, the county's Early Intervention Planning Council selected the Marion County Commission on Youth, or MCCOY, to take charge of an initiative to reach out to more at-risk children.

The goal is to reduce the number of children and teens entering the juvenile justice and welfare systems over the next few years.

On a somewhat related note:
The Indiana State Bar Association in collaboration with the Indiana Commission on Disproportionality in Youth Services will sponsor the "Summit on Racial Disparities in the Juvenile Justice System: A Statewide Dialogue" featuring W. Haywood Burns Institute Founder and Executive Director James Bell on Thursday, Aug. 27, at 8 a.m. at the Indiana Government Conference Center.
Access more information here.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Courts in general

Ind. Courts - "Facing foreclosure? Experts advise action: Homeowners can take steps to minimize fallout"

That is the headline to a lengthy story today in the South Bend Tribune, reported by Kim Kilbride. Debra Voltz-Miller, an attorney in South Bend, details steps to take to at least "lessen the fallout." Worth reading in full.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Indiana Courts

Law - "Obama’s Embrace of a Bush Tactic Riles Congress"

On March 12th the ILB had this entry, quoting from a story by Charlie Savage of the NY Times, who won a Pulitzer prize while writing about President Bush's signing statements for the Boston Globe. The headline was "President Obama on Wednesday issued his first signing statement, reserving a right to bypass dozens of provisions in a $410 billion government spending bill even as he signed it into law."

Here are some quotes from Savage's lengthy August 8th report in the Times:

President Obama has issued signing statements claiming the authority to bypass dozens of provisions of bills enacted into law since he took office, provoking mounting criticism by lawmakers from both parties.

President George W. Bush, citing expansive theories about his constitutional powers, set off a national debate in 2006 over the propriety of signing statements — instructions to executive officials about how to interpret and put in place new laws — after he used them to assert that he could authorize officials to bypass laws like a torture ban and oversight provisions of the USA Patriot Act.

In the presidential campaign, Mr. Obama called Mr. Bush’s use of signing statements an “abuse,” and said he would issue them with greater restraint. The Obama administration says the signing statements the president has signed so far, challenging portions of five bills, have been based on mainstream interpretations of the Constitution and echo reservations routinely expressed by presidents of both parties.

Still, since taking office, Mr. Obama has relaxed his criteria for what kinds of signing statements are appropriate. And last month several leading Democrats — including Representatives Barney Frank of Massachusetts and David R. Obey of Wisconsin — sent a letter to Mr. Obama complaining about one of his signing statements.

“During the previous administration, all of us were critical of the president’s assertion that he could pick and choose which aspects of Congressional statutes he was required to enforce,” they wrote. “We were therefore chagrined to see you appear to express a similar attitude.”

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to General Law Related

Law - "Chicago red-light camera company open to two-tiered ticketing: Rolling right turns may net lower fines"

This April 6th ILB entry is the most recent - it is headed "Red light camera bill may have hit a red light."

Today the Chicago Tribune has this long story by Bob Secter that begins:

As a backlash against red light cameras starts to gain steam, a traffic camera firm serving Chicago and several suburbs says it is willing to explore charging a reduced fine to drivers caught making illegal rolling right turns on red.

Australian-owned Redflex Traffic Systems Inc. recently told Naperville officials that it could, if asked, revamp systems so right-turn violators would be billed less than red-light runners who blow straight through intersections, a more dangerous infraction.

That position stands in sharp contrast to one taken last month by Lombard-based RedSpeed-Illinois, the dominant camera firm in the suburbs, which flatly refused to consider a two-tiered fine structure when asked to do so by River Forest, then a prospective customer. The near west suburb wanted to levy a $50 fine on rolling-right-turn violators, half the $100 standard in Illinois for red-light infractions caught on camera.

The inquiries from River Forest and Naperville followed a Tribune series last month that found the vast majority of red-light camera tickets were issued for right-turn-on-red violations, even though traffic-safety experts say such infractions rarely result in serious damage or injury. Underscoring concerns, trustees in Schaumburg voted unanimously last month to yank the town's last traffic camera, which had generated considerable revenue but also riled motorists while failing to produce palpable safety benefits.

More than 70 municipalities around the region have installed cameras in recent years, with backers arguing that they deter accidents. Critics argue that the devices are little more than money machines for camera vendors and cash-strapped municipalities, pointing to the large share of tickets for right-turn-on-red violations as evidence that cameras largely focus on less serious violations.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to General Law Related

Ind. Law - It's the Law: "Public urnination a lesser charge than exposure"

Ken Kosky's weekly NWI Times' "It's the Law" column, an excellent and long-running series, today looks at public nudity:

When it comes to public nudity, Indiana law addresses those people who intentionally show their naked body to someone and those who just happen to get caught urinating behind a building or a tree.

Indiana's public indecency/indecent exposure law states it is illegal to engage in sex acts, fondle oneself or expose oneself to another person to arouse oneself or the other person. The misdemeanor offense is punishable by as much as a year in jail, although the second offense is a felony.

Indiana also has a public nudity law, which states appearing nude is public -- like to urinate -- is a lower level misdemeanor punishable by as many as 60 days in jail. It becomes a more serious offense if the violator intended to be seen, if it is a second offense or if it is done on park or school grounds.

The public nudity law was added in 2003 so an act like urination would be a lesser offense than intentionally fondling oneself in a crowd of people.

Porter Superior Court Judge David Chidester said urination is the most common offense to be enforced. He said most offenders enter into a pretrial diversion program and, if they follow the requirements and pay a fee, the charge is dismissed before it gets before his court.

Chidester said people who defend themselves in court have argued that the need to urinate was urgent, or that the officer only saw the back of the person and not the genitalia.

The Court of Appeals reversed one conviction because there was "no evidence ... that he (the arrested person) exposed his penis while urinating." However, in another case, the Court of Appeals affirmed a conviction because the officer approached and saw the man's penis -- even though the man didn't intend to be seen.

As for the necessity defense, Chidester said the act needs to have been done to prevent a significant evil. So, if a person failed to plan ahead and just stopped on a roadside to urinate, he would likely be convicted. If, however, the person unexpectedly got caught in a five-hour traffic jam and ran off to urinate in the woods, he would likely not be convicted, Chidester said.

"The defense of necessity is pretty limited and just having to (urinate) isn't it," Porter County Chief Deputy Prosecutor Matt Frost said.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to Indiana Law

General News - Gripes (and a few kudos) about local newspaper websites

I look at a lot of online papers every day to find items of interest for the ILB.

Most of the Indiana newspaper websites have changed over the five years I have been reading them. Few have changed for the better. Here are some observations.

The Evansville Courier & Press: Here is the local news. Not bad. But reporters' names on stories are all but invisible - blue type on a black background (see this story). And where is the current editorial?

The Fort Wayne Journal Gazette: I never can find Niki Kelly's stories unless I type her name in the search box. This "redesigned" site suffers from confusing layout, flashing stories, etc. I know I've missed important stories from the FWJG ....

Louisville Courier Journal - This site is not fancy, news-wise. I can go to the Indiana section and see a list of today's stories, with a few lines of the lede. The same for the local Kentucky stories. I hope the LCJ website isn't slated for "improvement."

The Terre Haute Tribune-Star news page is pretty much okay. Simple, does the job. (And lists what is on TV tonight.)

The same for the Muncie StarPress local news page.

The Gary Post-Tribune local news page is so-so, but one good thing is that since the Sun-Times took it over, stories are archived. Unfortunately only for a month, but previously they disappeared the next day.

The NWI Times webpage has always been good for finding the news. And this paper maintains free archives going back for many years.

The South Bend Tribune's news webpage has improved, and this paper now has excellent RSS feeds.

The Indianapolis Star - What to say good about the Star? It is glitzy, and makes you go through hoops to find stories. I frequently give up and use the Star's search box to try to find stories I've read that day in the printed paper.

The Carroll County Comet - Yes, the weekly Comet has one of the best sites, in my opinion. Here is the front page. And I did a little research, it turns out the same company that does the Comet layout does larger papers, like the daily Daytona Times.

The Chesterton Tribune - My hometown paper certainly could use a little layout help, but at least the no-frills approach means the reader doesn't miss a story, or an obit.

Now take a look at the NYT, which leads you through all the paper's daily sections, plus provides at the bottom a calendar so you may easily jump to an edition from earlier in the week.

The Washington Post also has a simple, usable homepage, with links directing the reader to each section (although they are not all available on one page, as is the Times), and with a link (right next to the date at the top) to previous editions.

Posted by Marcia Oddi on Monday, August 10, 2009
Posted to General News

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/10/09):

Next week's oral arguments before the Supreme Court (week of 8/17/09):

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 8/10/09):

Thursday, August 13th

Next week's oral arguments before the Court of Appeals (week of 8/17/09):

Next Wednesday, August 19th

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, August 10, 2009
Posted to Upcoming Oral Arguments

Sunday, August 09, 2009

Environment - "Blowback: Indiana's emerging wind farms whip up controversy: More and more critics say windmills aren't that green, aren't a great source of energy -- and can be harmful to people's health"

The ILB has a number of earlier entries on wind turbines. Today Jeff Swiatek has a front-page story in the Indianapolis Star. Some quotes:

What's happening in other states suggests that the warm and fuzzy feeling many Hoosiers have for wind farms could change as the big turbines creep closer to more populated areas near Indianapolis, Lafayette and other cities.

Benton County farmer John Gilbert said several farmland owners he knows refused to lease space for turbines. He can't quite understand that. He and his family leased ground for four turbines being built by French-owned enXco.

"My thoughts are, they are going to have to look at 'em, so they might as well get paid."

Wind turbine energy is here. But groups have sprung up nationwide to fight it.

Jon Boone, a retired University of Maryland administrator who helped found the North American Bluebird Society, has become a leading wind-energy critic from his rural Maryland home, where he helped fight a wind farm proposal several years ago. Now he duels with the windmill lobby through his Web site, stopillwind.org.

"Wind is neither clean nor green," he said. "It's like something from the Emerald City of Oz. It's entirely political. Well-intentioned people are coming in and being ginned by promises of a better environment."

Eric Rosenbloom, who got his start in the wind energy debate fighting a wind farm near his former hometown of Kirby, Vt., now heads National Wind Watch. The nonprofit coalition of about 300 groups fights wind farm projects across the country.

"We are still fighting a denial that there is any downside to industrial wind farms," said Rosenbloom, who's seen the debate intensify since National Wind Watch formed four years ago. "There is a lot of rancor that develops in communities" when wind farms come to town, he said. * * *

Indiana is fast becoming a player in the wind business. One reason is because the state sits at the edge of two power grids serving the Midwest and parts beyond.

The state got its first wind farm last year, in Benton County, a wind-rich spot where more than 600 turbines are up or proposed by several developers. In at least 14 other Northern Indiana counties, where winds also blow hard, developers plan sprawling wind farms holding thousands of turbines.

Like oil wildcatters of old, agents for wind developers are persuading hundreds of Indiana landowners to sign leases that allow turbines on their land for as long as 80 years.

Steuben County attorney John J. Schwarz II compared the leasing activity with California's Gold Rush of the 1840s.

Developers have homed in on Clinton and Boone counties, trying to lock competitors out of favorable areas. And the leases are written to strongly favor the rights of the developer over the landowner, Schwarz said. For instance: Leases often don't require developers to remove turbines if the company goes bust.

"Let's say they find out 10 years from now wind energy is not the way to go. Is a guy going to be looking at a huge, useless monument on his property?" Schwarz asked.

But such considerations are hardly front and center for developers looking to profit from wind farms and landowners angling to get a turbine and the typical $5,000 to $7,500 annual lease payments that come with it. * * *

With their location in rural areas, often on ridgetops or in mountain passes, wind farms also have broad environmental impact. They require quarter-acre clear zones for the turbines and long cuts through forests for permanent service roads.

The blades, turning day and night, are efficient killers of birds and bats. Some studies show large wind farms located in migratory paths or on ridgetops can kill thousands of birds a year, though other studies put the death toll much lower.

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Environment

Ind. Law - New golf cart laws may need corrective amendments

On August 5th the ILB had a long entry headed "Ind. Law - New golf cart law, as amended, may work a hardship on those outside Culver town limits." If you haven't read it, you may want to check it out.

Now, dated August 7th J. Swygart has this report in the Decatur Daily Democrat:

The explosive topic of golf carts — which has made the rounds recently, from Geneva to Decatur and from Berne to the chambers of the Adams County Commissioners — founds its way to the Indiana General Assembly on Thursday evening.

The two lawmakers who represent Adams County in the state legislature were the latest public officials to be quizzed and badgered by area golf cart owners about a new state law which — at least for the time being — has rendered illegal the operation of those vehicles on rural roadways.

State Rep. Matt Lehman, R-Berne, and State Sen. Travis Holdman, R-Markle, hosted a town hall-style meeting Thursday evening at the 4-H dining hall in Monroe. And the majority of the 50 area residents in attendance were there to talk about golf carts and their regulation.

The two state lawmakers came fully prepared to talk about the controversial topic, offering explanations and clarifcations of the recently-enacted state law which has left individual towns and cities to adopt their own sets of customized ordinances governing golf cart use within their jurisdictions.

The biggest confusion, and the biggest source of frustration on the part of some golf cart operators, comes from a disputed portion of the state law as it pertains to cart use on rural roadways. According to Lehman, the intent of the state lawmakers was to allow all political subdivisions to individually address the use of golf carts in their communities. Until such ordinances are adopted, the use of golf carts technically remains illegal on public roadways.

The towns of Monroe and Geneva and the city of Decatur recently adopted guidelines governing the use of the motorized vehicles. Similar legislation reportedly has been approved in Portland and Bluffton. The city of Berne has initiated talks that will lead to the adoption of a golf cart ordinance.

But the Adams County Commissions have held off on adopting similar legislation because of disputed language contained in the new state law.

"What became the argument was, did we exclude counties (from the list of governmental bodies which legally can regulate golf cart use)?" said Lehman. "The law says local governments can control golf carts, but it only specifically mentions towns and cities. The General Assembly's intent was never to take away the authority of the counties."

Lehman said he is sympathetic to the plight of rural golf cart owners who currently cannot legally drive their vehicles on public roadways.

"The problem is that, outside of this rural community, you have a lot of people who hate golf carts. And several of them hold seats in the state legislature," said the Berne lawmaker.

Holdman cited one such example, noting that "a committee chairman in my own party" refused to allow debate on the golf cart legislation in its early stages. "Sometimes you've got to work around those kinds of people," Holdman said.

Lehman said conversations are currently under way between various legal experts across the state in an attempt to reach a final interpretation of the new state law "that will allow county commissioners to pass an ordinance" addressing golf cart regulation. "And I think you have that right."

"You're preaching to the choir tonite," said Holdman. "Matt and I feel the same as you do, and we are attempting to get this remedied ... to allow local folks to make these decisions for you."

Asked how long that might take, neither lawmaker had a definitive answer.

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Indiana Law

Environment - Burns Harbor's BZA to rethink Arcelor-Mittal denial

Gitte Laasby of the Gary Post-Tribune reported August 8th in a story that began:

Faced with a lawsuit, the Burns Harbor Board of Zoning Appeals is backpedaling on its refusal to let ArcelorMittal add more waste to a proposed new landfill.

ArcelorMittal has filed an appeal of the decision to a trial court, saying the board's denial was illegal, irrational and an abuse of discretion.

The board voted on June 23 to reject ArcelorMittal's request to add 700,000 tons of waste to the proposed landfill. Board members had already approved sending 1.5 million to 1.8 million tons of steel-making waste to the 173-acre landfill, but members were seemingly persuaded by six people at a public hearing who argued against accepting more waste.

The problem is, the board has yet to file a written justification for its denial, which is required within five days of the decision. BZA secretary Toni Biancardi said the issue was tabled at the board's July 28 meeting and is on the agenda for the Aug. 25 meeting, at which the BZA has requested a representative of ArcelorMittal and the Indiana Department of Environmental Management to be present.

ArcelorMittal has asked the Porter Superior Court to review the decision, saying the board "unlawfully denied" the request and hasn't substantiated its decision with facts.

"The BZA's denial is not supported by substantial evidence," the petition states. "Indeed, the evidence, if any exists, upon which the BZA based its denial ... is speculative and unsubstantiated opinion testimony devoid of a probative value. Accordingly, the denial does not rest upon a rational basis."

The company argues that it has met all eight criteria for allowing additional waste. For instance, the landfill will not change the character of the area, it will be harmonious with the adjacent property, reduce the amount of trucking to and from the property, reduce emissions of various pollutants from trucking, is not hazardous or detrimental to people's health and safety, and puts no demands on public services.

"Oral testimony presented by remonstrators in opposition ... consisted of personal opinion, mere comments and unsupported assertions not relevant to the eight ... special exception statutory criteria under the zoning code," the company states in its petition.

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Environment

Ind. Gov't - "If there is a default of some kind or a bankruptcy, can Indiana get the toll road back and lease it again?"

That is one of the questions Niki Kelly of the Fort Wayne Journal Gazette asked Ryan Kitchell, head of the Indiana Office of Management and Budget, in this story headlined "State has fail-safe Toll Road measures."

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Indiana Government

Ind. Law - "Tough abuse law makes detectives of animal officers"

Michael Zennie's reports today in the Fort Wayne Journal Gazette on the impact of new animal cruelty laws and ordinances. Some quotes:

This spring, [Christopher Meihls, a Fort Wayne police crime scene technician] and other Fort Wayne police officers helped provide every Animal Care and Control officer with instruction in the art and science of criminal investigation.

The initial impetus for the training came in 2007 when the legislature created the crime of domestic violence animal cruelty. Because of that law, killing a pet or other animal to intimidate or terrorize a family member or partner became a felony, punishable by up to three years in prison.

“One of the best ways to control people is to control the things they love,” Allen County Prosecutor Karen Richards said.

The training armed each officer with a detective’s mind-set and the skills of a crime scene investigator. They learned skills such as how to handle evidence so it will hold up in court and recognizing evidence of a suspect’s probable guilt.

The training has led to one felony arrest – of a man accused of mutilating a dachshund – and the promise of many more investigations like it, Animal Care and Control Director Belinda Lewis said. * * *

Aside from the new statute, numerous other animal-related crimes carry possible prison time, including torturing or mutilating an animal and promoting or engaging in dogfighting.
The training

But with the steeply increased penalties for domestic violence animal cruelty comes a vastly increased burden to prove that the suspect committed the crime.

Animal Care and Control officers have to adhere to the same standards in proving a case as any police officer. They must be certain they obtained evidence through lawful searches; that any information from suspects comes after they are read their constitutional rights; and that the crime scene is accurately documented and stays uncontaminated.

So when Lewis developed the training for her officers, she drew on the training she received from experts in veterinary forensics at the University of Florida and other leaders in the field.

But for hands-on experience, Lewis turned to the local experts in human criminal investigation – the Fort Wayne Police Department.

Meihls, also a Fort Wayne police patrolman, said the Animal Care and Control officers were familiar with many of the concepts of criminal investigations from their day-to-day work. But the training reinforced the elements of building a solid case and gave them guidelines, he said.

The four-day, 32-hour hands-on course covered a dozen major points, nearly every aspect of criminal investigation.

Officers were trained on the proper way to handle evidence – making sure the crime scene is taped off and locked down so the public cannot accidentally destroy evidence, and ensuring evidence is labeled and secured so that its validity cannot be contested in court.

This, in particular, is a major new development, said officer Randy Thornton, a four-year veteran of animal control. Before, officers were less thorough when they collected evidence from an animal cruelty case – sometimes throwing it into any empty filing cabinet drawer, he said.

Now, for any evidence, officers bag it and tag it, fill out a form showing the chain of custody, and secure it in a locked evidence locker.

Lewis’ training course spent the most time on diagramming and photographing crime scenes. The goal is to document every relevant piece of evidence in enough detail that the scene can be easily re-created, Lewis said.

Every step of the training was supplemented with hands-on experience. This culminated in a series of mock crime scenes that re-created actual neglect and abuse cases.

The exercise included animals that had previously been euthanized. Their carcasses were shot, stabbed and hung to show the officers what real wounds look like.

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Indiana Law

Ind. Courts - "Chiropractor, attorney accused of scam: Accident victim says her saga painful; federal case alleges insurance fraud"

Andy Grimm has the very long story today in the Gary Post Tribune.

[Crystal Kennebrew's first visit to] "a Hammond chiropractic clinic [that] called to set up an appointment for a free "10-point" examination" after she was rear-ended in a car crash:

began a months-long saga of modern-day ambulance chasing, complete with dubious conduct by her chiropractor and the Ohio-based attorney that staff at Hammond Spine & Rehab urged her to hire.

At that first visit, a representative of the law firm Magelaner & Associates signed her as a client in the waiting room. During her 12 subsequent trips to Hammond Spine & Rehab, her doctor cajoled her to keep coming in to compile bills to add to her claim to an insurance company.

"They told me I had to keep coming for 10 visits, 'I've heard about people who only went to nine visits, and they only got $700,' " she said.

"If you missed, they were right on you. I stopped going, because I was feeling worse and worse. I didn't care about the money, I just wanted to feel better, and I didn't think I could pay for it."

After five months and 13 visits, Kennebrew was dropped by Magelaner after she stopped going to the chiropractor, and complained repeatedly that the clinic and her lawyer wouldn't let her see any bills.

She settled her claim with an insurance company on her own for $5,900. It's far more than she figures she would've gotten if she'd never gone to the chiropractor or hired a lawyer, but after fixing her car and paying $2,100 to Hammond Spine, she figures she'll have $500 or less left. * * *

Kennebrew may have been part of an elaborate, modern-day version of classic "ambulance chasing" that just skirts state laws preventing lawyers from soliciting clients face-to-face.

Her attorney, Thomas Magelaner, and his Akron, Ohio-based firm are defendants in a federal civil lawsuit by Allstate Insurance Co. The lawsuit alleges he is part of a complex network of attorneys and chiropractic clinics that defrauded the insurer of millions with claims for fraudulent or unnecessary care.

In a phone interview and in court papers, Magelaner denied Allstate's allegations, claiming the insurance giant is seeking to smear his name in an attempt to drive away his clients. * * *

Magelaner said his firm spends "a fortune" on advertising and mailings. He also pays representatives to go to police stations to review crash reports and find names and addresses of accident victims.

Those records are available to anyone who requests them, said Heather Neal, Indiana public access counselor.

Further, the practice is not against the law, so long as the attorney or someone who works for him doesn't directly contact -- by phone or in person -- the prospective client, said Donald Lundberg, secretary of the state Supreme Court Disciplinary Committee.

They can contact clients by mail, provided the correspondence is reviewed and approved by the Supreme Court.

And insurance companies are free to call accident victims as soon as someone files a claim and talk about a settlement. Magelaner said his success at winning larger settlements for his clients is why Allstate has targeted his firm for the lawsuit, both as a scare tactic and to smear his name with prospective clients.

"Insurance companies are in business to settle as quickly and for as small an amount as possible," Magelaner said. "Our job is to make sure ... our clients are compensated fairly."

At least two of the law firms named in the Allstate suit, which was filed more than a year ago, have been dismissed from the case.

"We're going to be dismissed out of that case soon, too," Magelaner said.

Magelaner, however, does not hold a license to practice law in Indiana, state Supreme Court records indicate.

The sole attorney in his office admitted to the Indiana bar, partner Bradley D. Keating, had his license suspended for at least part of the time the firm represented Kennebrew. Indiana Supreme Court records indicate he was not current on the continuing education requirement necessary to keep his license in good standing.

Magelaner said Keating operates the firm's Indianapolis office, located in a building next door to one of the other chiropractic clinics named in the Allstate lawsuit. However, Magelaner said, the best number to reach Keating was at the firm's Columbus, Ohio, office. The Post-Tribune was unable to reach Keating.

Records in Marion and Lake county courts do not show either Keating or Magelaner listed as ever having filed a lawsuit in either jurisdiction.

But, Lundberg said, an attorney whose license is suspended is barred from practicing law-- advising a client, contacting an insurance company on behalf of client, much less filing cases or appearing in court-- until their license is back in good standing.

A letter to Hammond Spine signed by Magelaner -- by a proxy with the initials "KO" -- dated the day after Kennebrew's first visit, states "our firm" represents Kennebrew.

Kennebrew said she never spoke to Keating during the two months he was purportedly her attorney, though she did talk to Magelaner more than a dozen times on the phone, at the number for his Akron office. Magelaner never mentioned Keating.

The only time Kennebrew ever saw Keating's name was on letterhead, and when he signed the letter from the firm formally informing her she had been dropped as a client.

There is much more in the story.

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Indiana Courts

Ind. Courts - "A call for a moratorium on executions"

That is the title of this editorial today in the Fort Wayne Journal Gazette:

Jon Laramore’s opposition to the death penalty came about the way it has for many. He saw firsthand how unevenly it was applied, and now he lends his voice and experience to establishing a much-needed moratorium on executions in Indiana. Abolishing the death penalty would be a better approach, but Hoosiers should demand at least a moratorium while the process is under review.

“There are so many decision points in the process where judgment and bias and other factors can creep in,” said Laramore, who served as legal counsel to former Gov. Joe Kernan when the governor granted clemency to two Indiana death-row inmates, “Whether we can administer the death penalty fairly is the question we need to answer.”

The Indiana Coalition Acting to Suspend Executions – InCASE – last week issued an official call for a moratorium on executions. The group’s founder, Will McAuliffe, said he saw the need for a statewide organization to address apathy and myths surrounding the death penalty.

“We’re very cognizant of the political realities involved here,” he said. “We know it is going to be a political battle, but we would like to think it’s not so much an ‘us versus them’ as ‘us versus apathy.’ ”

McAuliffe points to 2007 survey by the American Bar Association that found 61 percent of Hoosiers would support a moratorium on executions so that issues regarding accuracy and fairness could be studied.

InCASE points to another American Bar Association study that showed Indiana is in full compliance on only 10 of 90 protocols established to ensure the death penalty is administered fairly. Another study, by the Indiana Criminal Law Study Commission, found that death-penalty cases cost taxpayers 37 percent more than incarcerating an inmate for life.

The cost to taxpayers should be one consideration in the moratorium debate, which could find favor with Gov. Mitch Daniels. In 2005, the governor granted clemency to Arthur Baird II, who was scheduled to die for the 1985 slayings of his parents. An Indiana University psychiatrist deemed him “grossly psychotic and delusional.”

“In this climate, it takes real courage to commute a death sentence,” said Laramore, now a partner with the Indianapolis law firm of Baker & Daniels. “There have been very, very few other than these in Indiana. I applaud a governor who has the courage of his convictions to exercise the power the constitution gives to him to set aside a sentence.”

Here is the website of InCASE. Here is its introduction:
Over the past two decades, a number of studies have indicated that Indiana’s death penalty system discriminates unfairly, costs more than life imprisonment and does not adequately protect the innocent. These findings have given Hoosiers great pause, causing a majority of them to support a moratorium, or a hold on pending executions, so that the fundamental issues in our death penalty system can be addressed.

This site is built to empower you with the necessary knowledge to form an educated opinion on this crucial issue. Should you decide to add your voice to the many already calling for a moratorium, InCASE aims to provide you with the necessary tools to effectively do so.

Here is the home page of the Amercian Bar Association's Death Penalty Moratorium Implementation Project. And here is the ABA's Indiana Death Penalty Assessment Report and Supplemental Materials.

Posted by Marcia Oddi on Sunday, August 09, 2009
Posted to Indiana Courts

Saturday, August 08, 2009

Environment - "GM gets to dump its polluted sites;" Indiana impacted

Some quotes from a lengthy story today in the Detroit Free Press, reported by Tim Higgins:

When General Motors Co. emerged from bankruptcy, it was freed of obligations for polluted properties at discarded plant sites that will require millions of dollars to clean up.

GM’s unusual, government-engineered bankruptcy allowed the Detroit automaker to emerge as a new company — and to shed billions in liabilities, including claims that governments had against GM for polluting.

Environmental liabilities estimated at $530 million were left with the old GM, which has only $1.2 billion to wind down.

Administrative fees and other claims will soak up that money, and state and local officials told the Free Press they fear the cleanups will be shortchanged.

In Flint, uncertainty over cleaning up Buick City threatens a three-year redevelopment effort. “We can’t lose this opportunity to create more jobs,” said Tim Herman, chief executive officer of the Genesee Regional Chamber of Commerce.

The State of New York is concerned about 12 GM sites, including a 270-acre site along the St. Lawrence River that possesses a “significant threat to human health.” Sites in Ohio, Delaware, Indiana and Colorado also have raised concerns.

GM said the issue rested with Motors Liquidation Co. — what’s left of the old GM — which declined to comment.

Companies have gone bankrupt before, leaving behind expensive messes, but the size of the environmental liabilities shed by GM is extraordinary, said John Pottow, an expert in bankruptcy law at the University of Michigan. * * *

Officials fear the practical outcome of GM's bankruptcy on their local sites will be large chunks of land sitting unused with no way to clean them up, hindering economic-development efforts.

"It's very, very difficult to get another company to come in and take over a property where there is a legacy contamination problem that has remained unaddressed," said Robert McCann, a spokesman for the Michigan Department of Environmental Quality.

"That would ultimately shift the likely cleanup to the state, but our cleanup program is more or less out of money at this point, so we don't have the resources to do it, either."

In GM's bankruptcy, an unusual so-called 363 sale allowed the company to sell its valued assets to a new company largely owned by the U.S. government. * * *

Chrysler Group LLC, which underwent a similar bankruptcy sale, also left behind environmental problems with its old company, according to Chrysler's master transaction agreement. These would include the Sterling Assembly and Detroit Axle plants, among others, but taken together, do not reach the scale of GM's unwanted sites.

GM's unwanted assets include 16 factories being closed and about 100 other properties, including Buick City.

Al Koch, who is overseeing the wind-down of the old GM, said during the bankruptcy hearings that the properties being left behind have an estimated environmental liability of $530 million. Motors Liquidation declined to comment.

Although other manufacturers have gone broke and left behind polluted sites, John Pottow, an expert in bankruptcy law at the University of Michigan, said GM's case was extraordinary because of its size.

"It's one of the largest liquidations," he said in an e-mail. "The real largest liquidation is Lehman Brothers, but investment banks don't tend to have lots of environmental liabilities. Manufacturing companies -- things that use gooey chemicals -- do."

This graphic that accompanies the story shows that Indiana has more GM properties (44) than even Michigan (40).

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Environment

Ind. Decisions - More on: Interesting probate case in St. Joseph Circuit Court

Updating these earlier ILB entries, Alicia Gallegos reports today in the South Bend Tribune:

A judge has appointed a new administrator to handle the will of Philip Gabriele, in the ongoing dispute surrounding the late doctor's will.

St. Joseph Circuit Court Judge Michael G. Gotsch has designated 1st Source Bank to serve as special administrator to the will, thus rescinding the appointment of Susan Manuszak.

Manuszak, the Gabrieles' purported best friend, had originally been listed as executor in Philip Gabriele's will. But the doctor's last testament is now the subject of a lawsuit claiming that Gabriele was under the "undue influence" of Manuszak when he penned the document.

The lawsuit recently filed by Jon Alex Dawson, brother of Marcella Gabriele, alleges that Gabriele's will was improperly executed and attorneys for Dawson argued for a more impartial administrator.

Gabriele and his wife, Marcella, faced a 15-count criminal indictment involving health care fraud, which their company, Gabriele Eye Institute, also was named in.

Hours before the couple were to be arraigned in June, the two were found dead from an apparent murder-suicide in their Elkhart office.

At a recent hearing, Gotsch approved the motion to appoint another administrator and gave each side a week to come up with recommendations for the special administrator position. 1st Source Bank was recommended by several parties in the case.

In addition, Gotsch's order reads that a "special master" also should be appointed in the case due to a succession of complicated case factors including:

"The circumstances of the decedent's death, the legal effect of the decedent's presumed involvement in the death of his wife, the competing interests and claims of the legatees and heirs ... the contest of the legitimacy and effect of the purported will of the decedent, and the potential interest of the United State government in the assets of the estate."

A "special master" is a particular expert assigned in certain cases to assist and oversee the proceedings. In the Gabriele case, Gotsch has appointed Richard B. Urda Jr., who is a local attorney specializing in estate cases, according to court documents.

Because of the uncommon event of a "special master," the Indiana Supreme Court must first review the position and ultimately give their approval.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Ind. Trial Ct. Decisions

Courts - "Tennessee appeals court rules that public records laws apply to Corrections Corporation of America"

Kate Howard reported yesterday in the Tennessean:

Prisons run by Nashville-based Corrections Corporation of America perform a government function and must follow public records laws, the Tennessee Court of Appeals has ruled.

The prison giant appealed the ruling issued last year by Davidson County Chancellor Claudia Bonnyman, who ruled that the corporation was the functional equivalent of government and that its administrators must turn over all records requested by prison reform advocate Alex Friedmann.

Friedmann, the associate editor of the monthly publication Prison Legal News, sued for access to several types of records, including CCA's government contracts, legal settlements and cases where CCA was sanctioned or fined.

"With all due respect to CCA, this court is at a loss as to how operating a prison could be considered anything less than a governmental function," Judge D. Michael Swiney wrote in the opinion. But the court also reversed Bonnyman's order that the company produce all the records, though, saying that the Private Prison Contracting Act limits the records the country's largest private prison corporation must make public.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Courts in general

Ind. Courts - "Golf ball ‘tsunami' prompts lawsuit"

This story appeared yesterday in the Seymour / Jackson County Tribune.:

Owners of two homes in a golf course subdivision south of Seymour have filed lawsuits seeking damages from its developers.

The residents also want an injunction that would stop Ash Hollow Golf Course from operating and force its owners to take steps to prevent what the residents claim is a “rain” of golf balls that amounts to a “veritable tsunami.”

The lawsuits were filed July 29 in Jackson Superior Court I by Elizabeth T. and Charles R. McDonald, 49 Carolyn Drive, and Maurice Clyne and Doris Clyne, 44 Carolyn Drive, against Lesley Lake & Country Club, 67 Bittersweet Court, Seymour, and its owners, Wallace M. Pfaffenberger and George W. Pfaffenberger.

The McDonalds and Clynes contend the Pfaffenbergers have violated state codes concerning nuisances and have been negligent by not taking action to cure the issues caused by golfers, including balls flying across and onto their properties.

The homes sit along a hole with a dogleg-right shape, prompting what the lawsuit calls some “overly avid/competitive golfers” to attempt to convert a par 5 into a par 3 by shooting over one of the houses.

The plaintiffs contend that from the time they moved into their homes they had “suffered the results of a rain of golf balls hit onto and over their property in numbers that give rise to grave doubt about not only the proficiency of the golfers allowed to play the course, but also the proficiency of the defendants’ ability to adequately design, construct and manage a golf course.”

The plaintiffs further contend that defendants’ actions amount to the continuing entry upon the plaintiffs’ land by an object caused by the defendants, which amounts to trespassing, the lawsuit states.

The lawsuit seeks exemplary and/or punitive damages.

The Clynes and McDonalds are being represented by attorney Larry Greathouse of North Vernon.
The Pfaffenbergers have attempted to close the golf course in recent years but have been opposed by some homeowners, and the developers’ efforts to convert the golf course into housing lots have been rejected by county development officials.

The "Readers' Comments" may also be of interest.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Indiana Courts

Courts - Two interesting SCOTUS articles

David Ingram has a story to be published Monday in The National Law Journal, titled "Democrats Take Aim at Supreme Court Decisions: Congressional Democrats hope to undo several high-profile Roberts Court decisions." Some quotes:

The debate over Sonia Sotomayor's confirmation to the U.S. Supreme Court took place against a backdrop of tension between the Democratic Congress and Sotomayor's new colleagues.

Since January, Democratic lawmakers have pushed legislation that would reverse the effects of several recent high-profile decisions, many of them driven by the Court's five-member conservative majority. The Democrats want to allow state tort lawsuits over medical devices, restore a per se ban on vertical price-fixing, lower the standard for pleadings in civil suits and allow suits against aiders and abettors of securities fraud, to name only a few proposals.

The bills have little in common except that they would all override the Supreme Court's interpretations of law. Each bill is an expression of liberals' frustration with the direction of the Roberts Court -- and their hopes for Sotomayor. * * *

Now, even as they celebrate the confirmation of someone they hope will be a new ally on the Court, Leahy and other Democrats have their best chance in at least 15 years to push back against the justices. Veteran senators such as Edward Kennedy, D-Mass., and Arlen Specter, D-Pa., have thrown their weight behind congressional overrides, and at least one has become law this year. That legislation gives employees more time to file complaints about unequal pay, reversing the 5-4 opinion in Ledbetter v. Goodyear Tire & Rubber Co. (2007). * * *

Among the top priorities is a reversal of Riegel v. Medtronic (2008), which Zieve argued on behalf of a man injured when his catheter burst during an angioplasty. In an 8-1 ruling, the justices held that the federal Medical Device Amendments of 1976 pre-empt common law claims in state court against the makers of medical devices. The House and Senate have each held hearings this year, and a bill to allow such claims is a priority for the plaintiffs' bar.

"Sotomayor Faces Big Workload of Complex Cases" was the headline to a story in Friday's NY Times, by Adam Liptak. Here are a few quotes from the lengthy story:
With the Senate’s approval of Judge Sonia Sotomayor’s nomination to the Supreme Court on Thursday, the new justice will soon take on one of the most demanding jobs in the land.

Just over a month from now, Justice Sotomayor will hear her first case, one that may transform how elections are financed, at a special summer session of the court. A few weeks later, she will join her eight new colleagues to decide which of the hundreds of appeals that have piled up over the summer the court should hear.

The volume and difficulty of the work, and the task of fitting into a storied institution populated by strong and idiosyncratic personalities, has unnerved even judges with distinguished records on lower courts, fancy credentials and ample self-confidence. * * *

The new justice’s presence will unsettle and reshuffle the court, sometimes literally. When she takes the seat reserved for the junior justice — the one on the spectators’ far right side — four other justices will move to new places on the bench. When there is a knock at the door during the justices’ private conferences, it will be Justice Sotomayor’s job to answer it.

In addition to the blockbuster election-law case, the new term is frontloaded with important First Amendment, business, criminal and patent cases.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Courts in general

Ind. Courts - More on "Lawyer ordered before judge on contempt issue"

Updating this ILB entry from July 19th, Bill Engle of the Richmond Palladium-Item reports today:

Indianapolis attorney Sarah Nagy will face civil contempt charges in Wayne County in September.

Wayne Superior Court 2 Judge Gregory Horn this week set a hearing in the case for 9:30 a.m. Sept. 28.

Nagy, who represented Charles "C.J." Kennedy during a four-week trial in 2008, faces the civil contempt-of-court charge for allegedly not complying with Horn's order that she make a contribution to the Boys & Girls Clubs of Wayne County.

Horn admonished Nagy at the end of the Kennedy trial in May for repeatedly being tardy during the trial and offered her the option of paying a fine or making a donation to the local charity.

Nagy has said she made the contribution to the Boys & Girls Clubs of America.

Court documents filed this week revealed that Nagy made the $20 anonymous donation to the agency via credit card on July 16, the day Horn issued his order. * * *

Nagy filed a motion July 21 asking a Wayne County judge to set aside his order for her to appear to face a possible civil contempt-of-court charge. Horn denied that motion July 23.

In her motion, Nagy argued that she made the donation anonymously online and submitted an undated form letter from the Boys & Girls Clubs of America that serves as a "thank you" and a receipt for federal income tax purposes.

She also argued that her donation, according to Horn's order, "could/can" be made "to the local chapters of the Boys & Girls Clubs of America."

But court documents indicate the court thinks "Nagy elected to make a contribution to the Boys & Girls Club of Wayne County or the Boys & Girls Club at Central United Methodist Church."

Nagy is represented by James Bell and Kevin McGoff of Bingham McHale LLP in Indianapolis. They were named to represent Nagy on behalf of the National Association of Criminal Defense Lawyers.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Indiana Courts

Ind. Gov't. - Photos of Logansport State Hospital and other closed mental hospitals nationwide featured in new book

Kevin Lilly reports in the Logansport Pharos-Tribune:

Photographer Christopher Payne spent much of his spare time the past seven years traveling around the country snapping shots of the architecture, the artifacts and long-discarded farming operations of about 70 state hospitals.

Included on his trip was the Logansport State Hospital, from which he captured the image that made the front cover of his book, “Asylum: Inside the Closed World of State Mental Hospitals.”

The artifact, a straightjacket now on display at Longcliff Museum on the hospital grounds, intrigued Payne. In a phone interview from his New York City residence, he explained his interest in the straightjacket, as well as his desire to record these historic facilities. * * *

“Each time you go to one and you see this city that’s just been abandoned, it just kind of makes you go, ‘Wow!’ to think about the thousands of people that lived there, worked there, the resources it required to build such enormous institutions,” Payne said. “I just thought it was a compelling story that needed to be told.”

For his self-funded project, Payne wanted to emphasize the positive aspects of the institutions, especially the notion of self-sufficiency in an age that he considers society far removed from the items people eat and use. In Logansport, he discovered a treasure trove.

The Longcliff Museum, which is hosting an open house free to the public today, contains hundreds of photos that show the daily life of patients when they worked on the state hospital farm growing vegetables and milking cows. There is also medical equipment, paintings by past patients and the hospital’s own TV studio. * * *

Payne complemented Logansport’s hospital staff for the effort to save so many artifacts when other hospitals have let them deteriorate.

“They have an incredible museum where it seems they have saved almost everything from the hospital,” Payne said. “There aren’t many places that have done that.”

According to a news release, Longcliff Museum has been open to the public since August of 1999, when many employee volunteers crawled through basements and searched for artifacts to save before buildings were demolished. The museum illustrates the hospital’s story from 1883, when the legislature approved the building of the state’s second mental hospital, to the present.

Payne said the items, some of which he had not seen elsewhere, have been preserved well. As for the straightjacket, he called it an iconic image.

“There was something about that which was unique because each hospital would manufacture their own straightjackets so you’d see lots of different versions,” said Payne of the jacket, which has the word Logansport stamped on it.

The book, titled “Asylum: Inside the Closed World of State Mental Hospitals,” will be published this fall by MIT Press, with an introduction by Dr. Oliver Sacks.

I've linked to the Amazon site, from which you can view several photos from the book. I can attest to the fascination of these now-closed, but at the time quite self-sufficient, institutions, from my days in the early '70s as the state budget analyst for the department of mental health.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Indiana Government

Ind Decisions - More on: Federal court vacates permanent injunction issued in 1990 prohibiting defendants from physically preventing women from accessing Fort Wayne abortion clinic

Thursday's order by U.S. District Judge William Lee (see ILB entry here) is the subject of a story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Some quotes:

With a few pen strokes, U.S. District Judge William Lee signed an order that dismissed a long-standing judgment against area anti-abortion activists, bringing about the sudden end to a contentious case nearly 20 years old.

Signed Thursday, Lee’s order dismisses the case of the Fort Wayne Women’s Health Organization vs. Wendell Brane, Bryan J. Brown, Ellen Brown and Northeast Indiana Rescue.

The lawsuit stemmed from the sometimes physical clashes between clinic staff and police and abortion protesters staging “rescues” at the clinic, then at 827 Webster St.

The story gives a good summary of the entire history of the case and concludes:
Lee ruled the initial injunction may be adversely affecting Brown’s ability to pursue his livelihood and noted none of the original plaintiffs came forward to contest Donegal Corridor’s and Brown’s motions, according to court documents.

In his ruling, Lee stressed that the case was never about abortion, existing rather “for the sole purpose of maintaining peace in the area” of the abortion clinic.

“Both sides were subject to certain restrictions intended to allow them to carry on their activities,” Lee wrote.

“(W)hile simultaneously respecting the physical safety of clinic employees, patients and protesters on both sides. For nearly 20 years, the very detailed injunction … succeeded in keeping peace notwithstanding the very tense atmosphere that arose out of the protests and activities conducted at the site.”

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Marion County potential jurors face detailed inquiries

A search of the ILB for the term "juror questionnaire" turned up a number of interesting entries.

Today Jon Murray of the Indianapolis Star has this story. Some quotes:

Hundreds of potential jurors for Marion County's first death penalty trial in seven years faced questions Friday that probed their beliefs about capital punishment -- and burrowed into personal information that included household income, political affiliation and even favorite TV shows.

Lawyers hope their responses on 24-page questionnaires will provide insight into the men and women who might be called upon in October to decide Desmond Turner's fate. Turner, 31, is charged with murder and robbery in the June 2006 slayings of four adults and three children on Hamilton Avenue. * * *

Introducing himself Friday, Marion Superior Court Judge Robert Altice provided few details of the crime, though the questionnaire listed the suspects and victims and noted the Near-Eastside location.

Among the 139 questions: "The evidence in this case will include graphic color photographs and a video of the seven victims (including the children) as they were found in their home after being shot multiple times. How difficult will it be for you to view the pictures and video?"

"You are not to educate yourself about this case," Altice said during the first of two sessions Friday in the City-County Building.

He ordered the potential jurors to ignore all media reports and avoid discussing the case with anyone or researching it online prior to the Oct. 5 trial. He also administered a mass oath to give truthful responses.

Some of the 406 who responded to the court's summons spent up to three hours filling out the surveys. The questionnaires will help lawyers narrow the group of prospective jurors.

Jury selection will continue the entire first week of the trial, when the lawyers will directly question smaller groups. For starters, they will have a good idea who is steadfast in their support of or opposition to the death penalty.

"It really can be of tremendous value to have this information," said Dennis Stolle, president of Indianapolis jury consulting firm ThemeVision LLC.

Questionnaires speed up the already painstaking jury selection process in a high-profile case, Stolle said. Also, jurors tend to answer sensitive questions more fully and accurately in a private survey than in open court.

The selected jurors and alternates will be sequestered in a hotel during the trial, which could last as long as three weeks.

Posted by Marcia Oddi on Saturday, August 08, 2009
Posted to Indiana Courts

Friday, August 07, 2009

Ind. Gov't. - Nine governors, but not Indiana, seek federal help for pork producers

From a report this afternoon by Mike Glover of the AP:

DES MOINES, Iowa -- The governors of nine key pork-producing states sent President Obama a letter Friday urging him to rescue an industry that's been battered by high commodity prices and worries about disease.

"Today, the pork industry is facing an economic crisis that is catastrophic in nature," the governors said in the letter. They urged Obama to purchase an additional $50 million in pork for government nutrition programs, eliminate a ceiling on how much surplus product the Agriculture Department can buy and push to expand export markets, primarily to China.

"This is a situation I am taking very seriously," Iowa Gov. Chet Culver said in a conference call with reporters. He was joined by governors from Colorado, Illinois, Kentucky, Michigan, Nebraska, North Carolina, Oklahoma and Wisconsin in sending the letter.

"We've had a tremendous loss of equity and little or no profit for almost two years," said Dave Moody, of the Iowa Pork Producers Association.

The industry has been hammered by the high costs of corn and soybeans, the primary feed for hogs, but the economic trouble got worse with the swine flu outbreak, also called H1N1.

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Environment | Indiana Government

Courts - Dawn Johnsen and David Hamilton still in limbo

Updating this long list of entries about DOJ nominee Dawn Johnsen, the Blog of Legal Times reports this afternoon that before it adjourned today for a month, the Senate confirmed some legal nominess, "but not the biggest ones."

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Courts in general

Courts - "Cameras come to the SCOTUS - Camel's nose inside the tent?"

Tony Mauro has this item this afternoon at the Blog of Legal Times - some quotes:

While he was a Supreme Court justice, David Souter zealously discouraged any small attempts to bring broadcast media into the Supreme Court, under the "camel's nose" theory -- once they had even the slightest amount of access, the media would soon be demanding, and probably gaining, full access to Court proceedings, he feared.

Well, just over a month after Souter retired, the camel and the camera will soon be inside the tent. The Supreme Court's surprise announcement Friday afternoon that part of nominee Sonia Sotomayor's oath-taking at the Court on Saturday would be televised marks the first time, as far as anyone can recall, that such an event at the Court will be broadcast. C-SPAN will air it beginning 11 a.m. * * *

Several sources indicate today that the television networks did not actively seek camera access to the Sotomayor proceedings at the Court, and where the idea was hatched is unclear. But it will give the public a rare live glimpse of the East Conference Room, where Chief Justice John Roberts Jr. will administer the judicial oath to Sotomayor. The oak-paneled room has seen cameras before, most notably for Justice Thurgood Marshall's retirement press conference in 1991, and for other events and interviews. But televising an actual oath-taking is a first.

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Courts in general

Ind. Decisions - "Restaurants don’t have standing to challenge parking in Jeffersonville"

That is the headline of this story by David A. Mann of the Jeffersonville News & Tribune about the COA opinions yesterday in the case of Buckhead Realty, et al v. Jeffersonville Board of Zoning Appeals, et al (NFP) - ILB summary here. Some quotes:

Two restaurants that complained when parking requirements were waived on Jeffersonville’s Riverside Drive did not have standing to challenge the city because they could not demonstrate monetary damages.

That’s according to an Indiana Court of Appeals decision issued Thursday in a suit involving a handful of businesses along Jeffersonville’s Restaurant Row.

The decision, which essentially sides with the city by dismissing the legal challenge, has been about three years in the making.

In 2006, a hotel management company called MHI Hospitality purchased what had been a Ramada Inn along Riverside Drive. The company remodeled and rebranded the hotel, turning it into a Sheraton.

The development was taking place across the street from two other restaurants that put down roots along Riverside Drive six years prior — Buckhead Mountain Grill and Rocky’s Italian Grill.

In late 2007, Jeffersonville’s Board of Zoning Appeals granted MHI a parking waiver, which allowed it to open a Bearno’s Pizza in what had been the Ramada Inn’s old Conference Room.

Shortly afterward, Buckhead and Rocky’s filed a lawsuit against the city and MHI alleging the parking waiver was injurious to public health and safety and would adversely affect the value of their property.

The trial court heard the case in October 2008 and affirmed the city’s variance.

In the decision it issued Thursday, the appeals court cited state statute, noting that in order to have standing to seek judicial review of a zoning appeals decision, a person must be “aggrieved.”

“Here, there is no evidence that Buckhead and Rocky’s would suffer any monetary loss by the granting of the developmental standards variance,” the court says.

Even though Rocky’s and Buckhead claim that numerous customers of the businesses across the street park in their spots without consent, “they failed to assert how this harmed them monetarily,” the decision said.

The story concludes:
Attorneys from each side reacted to the decision Thursday.

“How someone using your property — without your consent — is not a burden is beyond me,” said Greg Fifer, who represented the restaurants.

He said the decision avoids the underlying issue — a lack of parking spaces — and instead is made on whether the restaurants had standing to make a complaint.

“I just think that this is a decision that’s absurd on its face,” Fifer said.

“That’s the standing issue,” said attorney Larry Wilder, who represented the city. “That person [making the complaint] has to show some potential damages.”

Wilder praised the decision, saying it was one that will allow growth to continue along Riverside Drive.

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Ind. App.Ct. Decisions

Ind Decisions - Federal court vacates permanent injunction issued in 1990 prohibiting defendants from physically preventing women from accessing Fort Wayne abortion clinic

The opinion and order is in the case of Fort Wayne Women's Health Organization v. Brane Judge Lee writes:

It is well established that courts may modify or even vacate injunctions if a movant establishes that the injunction “injuriously affects his interests.” * * *

The evidence and the record before the court at the present time demonstrates that Brown may very well be under an unfair and unintended burden by the presence of the permanent injunction in this case and its associated ancillary orders. Also, as stated, no party to this lawsuit violated the injunction or its amendments during the time that the FWWHO continued to occupy the Webster Street property. Finally, as also stated above, none of the original plaintiffs nor any other party served with notice of the pending motions has come forward to oppose them. For all of these reasons, the court concludes that the motion to vacate the permanent injunction and its ancillary orders filed by the defendant, Bryan Brown, should be granted.

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Still more on: Who should decide Indiana's position on national legal issues? Who should know?

In this ILB entry from July 27th, I wrote:

Who should decide Indiana's position on national legal issues? Who should know? These are the questions I posed in the heading to this entry. Some thoughts:
  • The attormey general in Indiana is elected, but it is not a constitutional office. At various times in the past, the law has provided that the governor appoint the attorney general.

  • The constitution distributes state government powers to three branches, the executive, legislative, and judicial. Can the general assembly create officials outside this framework and grant them powers? This question has come up a number of times in Indiana's past.

  • The attorney general and the governor currently happen to be of the same party, but that has not been so at times in the past, and it is not assured.

  • Regardless, shouldn't there be a great deal more transparency here?
The following day, July 28th, I was able to report in this entry, that Attorney General Zoeller's office had now completed preparing its response to the ILB's May 19th request. More:
In my opinion, the AG's office has done a bang-up job in putting together these tables, which they prepared in Excel and I have converted to HTML. As the ILB receives new information, it will do updates. Here are the links:
The ILB plans to keep the AG Zoeller list up-to-date, going forward (with, I hope, the continuing the cooperation of the AG's office).

To make the tables easier to find, I have now included in the links in the right column of the ILB. Take a look.

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Term. of the Parental Rel. of J.G.; S.G. and J.G. v. S.G. , an 18-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-petitioner Indiana Department of Child Services (DCS) appeals the trial court's order directing DCS to pay the fees of the attorney who was appointed to represent appellee-respondent S.G. (Mother). DCS argues that the trial court erred by ordering DCS to pay the attorney fees of Mother's court appointed counsel. Finding that, notwithstanding a recent revision of the relevant statutes, the General Assembly did not intend for DCS to bear the burden of court appointed legal services in termination proceedings, and that the county should continue to be responsible for those costs, we reverse and remand for further proceedings.

In 2007, J.G. (Child) was determined to be a child in need of services (CHINS). On November 21, 2008, DCS filed a petition to terminate the parent-child relationship of Mother, Child, and J.G. (Father), the child's biological father. At a January 22, 2009, initial hearing on the petition, the trial court appointed an attorney to represent Mother. At the same hearing, the trial court ordered DCS to pay the appointed attorney fees over DCS's objection. DCS now brings this interlocutory appeal. * * *

It is evident, therefore, that as a general rule, the legislature prefers for the counties, rather than the State, to be responsible for the cost of legal services. Nothing contained within Indiana Code section 31-40-1-2 persuades us that the General Assembly intended to depart from that general rule in termination proceedings. Moreover, there is no line item or statute directing DCS to appropriate money for the purpose of covering the cost of legal services for parents involved in termination proceedings.

Under these circumstances, we cannot conclude that the legislature intended a radical overhaul of the way in which costs for legal services have always been allocated—and are allocated elsewhere in the Code—given that no explicit language to that effect has been included in the statute. * * * Likewise, we find that the current statutory scheme places the burden of paying for court appointed legal services in termination proceedings with the county, rather than DCS. Therefore, we reverse the order of the trial court directing DCS to pay for Mother's attorney fees. The judgment of the trial court is reversed and remanded for further proceedings.

MAY, J., concurs.
BARNES, J., dissents with opinion. [which begins, at p. 12] I respectfully, but emphatically, dissent. As we recently recognized, “in 2008, the Indiana General Assembly enacted House Enrolled Act 1001 (“HEA 1001”), which in part sought to raise the level of the quality of services provided in CHINS, termination of parental rights (“TPR”), and delinquency cases by shifting the funding burden from local government to the State in exchange for more influence by DCS in recommending services.” In re N.S., No. 32A05-0902-JV-78, slip op. 2 (Ind. Ct. App. June 30, 2009) (referring to P.L. 146-2008); see also In re J.C., No. 32A01-0902-JV-97 (Ind. Ct. App. July 22, 2009). The majority believes that counties should bear the costs when counsel is appointed by the trial court to represent parents in termination proceedings. I, however, believe the paradigm in these sorts of cases has shifted dramatically with the enactment of HEA 1001. If we, as a State and a society, truly believe in the best interests of children and that the proper and appropriate care for them is a priority, we must then, in my opinion, assure that before they are taken from their families, these statutes are strictly followed and the DCS is put to its proof. * * *

The DCS, not the county, determines when to initiate a termination proceeding. The DCS authors treatment plans, exacts requirements from parents as to basic skills, and provides all sorts of psychological and educational resources for parents. Because the DCS decides when to seek a termination, it should bear the cost of defending that decision. To heap the cost of these actions on the coffers of already cash-strapped counties is, in my mind, courting a legal and practical disaster.[7] Thus, I conclude that Indiana Code Section 31-40-1-2 requires the DCS, not counties, to pay for the appointment of counsel in a termination proceeding.
___________
[7] The DCS's suggestion that counties should use Indiana Trial Rule 60.5 to mandate the monies to pay for appointed counsel is, in my opinion, both disingenuous and cynical. Like the pea under the shell, it seems to me that the DCS keeps moving the financial target. First, the Family and Children's Funds were dissolved and then, according to the DCS, counties must absorb the costs for which no money is allocated. See I.C §§ 12-19-7-1 to -4 (2008), repealed by P.L. 146-2008 § 805. I agree with the majority that Indiana Trial Rule 60.5 is not available for the payment of appointed counsel in a termination proceeding.

NFP civil opinions today (3):

Christopher Stried v. Indiana Election Commission (NFP) - "Indiana Code section 3-8-1-2(e) imposes certain obligations on a candidate “before the commission . . . can consider a contest to the denial of certification . . . .” The candidate must state specifically the basis for the contest and set forth facts supporting the contest. Ind. Code § 3-8-1-2(e). Stried’s contest fails to do so. He does not contest the determination of the number of required signatures or contest the determination that he failed to submit the required number. He states no basis on which the denial was not in accordance with the law. If Stried wishes the IEC to be held to the requirements of the law, he also must comply with the requirements imposed upon him. Because Stried’s challenge failed to meet the requirements of Indiana Code section 3-8-1-2(e) by failing to set forth the specific basis for his contest and the facts supporting it, the commission was not only not required by the terms of the statute, but also not allowed, to consider his contest to the denial of certification.[4] Stried has failed to meet his burden of persuading us that the trial court’s decision was erroneous.

"There is no genuine issue of material fact with respect to Stried’s complaint and the IEC was entitled to judgment as a matter of law. The trial court’s judgment is affirmed.
________
"[4] Because we can affirm the grant of summary judgment on any basis supported by the record, we need not address the specific basis the trial court set forth for its decision. However, we note that Stried acknowledges he does not meet the requirements of the office for which he sought to run. * * * He argues “anyone can run and be elected as Governor,” they just cannot be sworn in if they do not meet the requirements. Indiana Code section 3-8-6-14(b) provides that “each candidate nominated by petition of nomination must satisfy all statutory eligibility requirements for the office for which he was nominated . . . .” * * * Contrary to Stried’s assertion, the statute requires that “a candidate” meet the eligibility requirements for the office. Moreover, the petition of nomination submitted by Stried states that “I comply with all requirements under the laws of the State of Indiana to be a candidate for this office.” By signing the petition of nomination, Stried falsely certified that he met the specific requirements for the office of governor. Indiana Code section 3-8-1-2(g) provides that the commission 'shall deny a filing if the commission . . . determines that the candidate has not complied with the applicable requirements for the candidate set forth in the Constitution of the United States, the Constitution of the State of Indiana, or this title.'”

Terry Dennie, Sr., et al. v. Methodist Hospitals, Inc. (NFP) - "If we were to hold that Methodist was obligated to continue with the involuntary commitment hearing, despite his family’s wish that he return home, or monitor Terry’s participation in outpatient therapy, we would be imposing an untenable burden on every mental health service provider each time they discharged a patient. Exactly how far would such a duty extend? The appellants suggest that Methodist’s duty extended over six months after Terry’s discharge. Imposing such a duty would result in higher insurance and operating costs and discourage a mental health service provider from even attempting to undertake treatment of the patients most in need of their services. Finding that such a duty exists would be counter-productive and extremely poor public policy. Therefore, we find that Methodist owed the appellants no common law or gratuitously assumed duties."

The Matter of the Adoption of B.H.K.; C.K. v. R.P. and L.P. (NFP)

NFP criminal opinions today (6):

Thomas Nowaczyk v. State of Indiana (NFP)

Marki Antwan Alsup v. State of Indiana (NFP)

Dustin Nevil v. State of Indiana (NFP)

Derek J. Jordan, Jr. v. State of Indiana (NFP)

Nathan Adam Noffsinger v. State of Indiana (NFP)

Kei Young v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Boston attorney sues lenders, says they created ‘toxic’ products"

From the August 5th Boston Globe, this story by Jennifer B. McKim. Some quotes from the lengthy report:

A Boston attorney has filed lawsuits against two major lenders claiming they knew - or should have known - their mortgage loans that can grow bigger over time were unaffordable to borrowers.

The suits are being watched locally and nationally because, if successful, they would provide strength to advocates and litigators struggling to make lenders accountable for “toxic’’ mortgage loans that have pushed millions of Americans into foreclosure.

“If this case goes forward, it will be a model throughout the country,’’ said Suffolk University law professor Kathleen C. Engel.

Gary Klein, of the law firm Roddy, Klein and Ryan, sought class-action status for his suits this summer against Bank of America Home Mortgage and Wells Fargo Home Mortgage, saying that hundreds of Massachusetts borrowers ultimately will be unable to afford their mortgages. A decision on class- action status is pending.

“The lending community created these toxic products and masked their effect with complicated loan provisions that borrowers had no chance of understanding,’’ Klein said. “I find that appalling.’’ * * *

The suits are grounded in a landmark 2008 state Supreme Judicial Court decision that lenders were violating state law by writing loans that were almost certain to lead to default and foreclosure. The decision, Engel said, was the first in the country to hold lenders accountable for unfair practices, even when the terms of a mortgage are considered legal.

The court decision upheld arguments by Attorney General Martha Coakley that the California-based lender Fremont Investment & Loan was selling risky products it knew would fail. In June, Coakley settled with the lender for $10 million to help struggling homeowners and cover legal costs.

Guy Cecala, publisher of the Maryland-based industry newsletter Inside Mortgage Finance, said a growing number of lawsuits against lenders are like those filed by smokers who claimed cigarette companies knew their products were cancerous.

“This kind of legal challenge is going to be repeated around the country,’’ Cecala said. “There’s clearly blame to go around.’’

But Engel, the Suffolk professor, adds that unlike smokers, who knew cigarettes were unhealthy, many homeowners thought they were being responsible.

“The message was more that homeownership was a great thing, that getting credit was a great thing,’’ she said. “The Fremont decision should put lenders on edge.’’

Klein filed the lawsuits in US District Court in June and July focusing on so-called “payment option’’ mortgages, which allow borrowers to make minimum monthly payments on home loans. From the day the paperwork is signed, any unpaid interest is added to the balance. Eventually, the day of reckoning comes - usually after five years - and a borrower is required to make payments that cover the full mortgage interest and swelling principal.

“Pick-a-payment’’ loans became popular in 2005 and 2006 as borrowers strained to afford skyrocketing home prices, or sought money to make investments or home improvements.

But as home prices fell, a growing number of borrowers defaulted on the loans. With little or no equity left in their properties, some walked away from their homes, while others coped with payment shock. About 40 percent of current “payment option’’ loans are delinquent, and the numbers could grow when $96 billion in mortgages reset by the end of 2010, according to the global rating agency Fitch Ratings.

Also worth reading is this August 4th entry by Gary Welsh of Advance Indiana headed "How To Avoid A Home Foreclosure The Easy Way."

Posted by Marcia Oddi on Friday, August 07, 2009
Posted to Courts in general | Indiana Courts

Thursday, August 06, 2009

Law - Illinois bans texting while driving

See the AP story here.

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to General Law Related

Ind. Gov't. - "Making Hoosier women jump through hoops to drive, vote is unfair"

That is the headline to a letter today from Ruth Beeler of Churubusco, published iin the Fort Wayne Journal Gazette. I love the letter and have highlighted several portions:

Thank you to Debra Jenkins for her letter, “ID rule discriminates against women” (July 30), for stepping up and voicing her indignation at the Bureau of Motor Vehicles for its new ID rule. Women in Indiana need to check all of the requirements because women are the targets who will require the multiple documents.

BMV Commissioner Andy Miller and Gov. Mitch Daniels should quit insulting our intelligence by stating that this will help prevent another 9/11 or give extra protection against identity theft. Anyone with half a brain knows that 17 of the 19 al-Qaida hijackers used their real names. As to identity theft, more than 70 percent of the theft is done online.

I, like many other women in this state, have been married more than once. One marriage was terminated in another state. I do not have the paperwork, so now I must deal with a governmental bureaucracy to get a copy sent to me, and this will cost time and money to acquire. Another marriage requires a trip to downtown Fort Wayne to get the necessary documents. I wonder how much that will cost me.

My husband has all the utilities and such in his name. All credit card payments are done online, and my paycheck is directly deposited so I have no pay stub or statement. And did everyone know that you cannot have a post office box for your address? We live in a rural area and pick up our mail at the post office. It seems as if the BMV is now dictating how I receive my mail.

This ID rule is a slap in the face to Indiana women by requiring us to jump through multiple hoops. I am older than 60 years of age. The federal government, my family, friends and employer all know who I am and where to find me. Therefore, I must decide about whether I want to continue to be an Indiana resident or relocate to a state where women can drive and vote without being subjected to this type of standard.

For background, start with this ILB entry from July 19th.

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to Indiana Government

Ind. Law - Should courts determine what legislators intended in passing a law they apparently didn’t understand?

An editorial today in the Fort Wayne Journal Gazette begins:

In weighing evidence, judges often are called upon to determine legislative intent. Some lawmakers are suggesting that county assessors should do that and more – determine what legislators intended in passing a law they apparently didn’t understand.

The misunderstanding, according to Niki Kelly’s Sunday report, is over the definition of a homestead, the standard by which the state bestows its most generous tax credits. Indiana assessment standards define a homestead property as a dwelling, including a house, mobile home or manufactured housing. It can include one garage, attached or detached, and 1 acre of land. Anything beyond that – a swimming pool, gazebo, extra acreage, a barn – is not included in the homestead definition for purposes of assigning property value.

But as tax bills begin to arrive and the first real effects of a circuit-breaker cap are beginning to appear, some legislators are complaining that what they meant was for a homestead property to include everything on the 1-acre property. * * *

Amanda Stanley, spokeswoman for the Indiana Department of Local Government Finance, pointed out that the same definition of a homestead has been in the law for years.

What’s different is the addition of the circuit-breaker tax cap, which raises the stakes significantly. Effective this year, tax bills for homestead properties are capped at 1.5 percent of their total assessed value. Some property owners who reached that cap were surprised to find that features like swimming pools and barns were listed separately on their tax bills, excluded from the 1.5 percent cap, which will be reduced to 1 percent in 2010 as the circuit-breaker credits go fully into effect.

As Kelly explained, it’s possible for a single property to fall under three different caps: A homeowner with a house and pool on 5 acres would find the house and 1 acre calculated under the homestead cap of 1 percent. If additional land is farmed, it could fall under the 2 percent cap set for other residential and farm property. The pool and any other structures would fall under the 3 percent cap set for all other classifications of property.

Allen County Assessor Stacey O’Day also noted that nothing changed within assessment procedures this year and pointed to the initial reasoning for those procedures – a swimming pool is a luxury item. It was never intended to be eligible for a tax break.

Consider this brouhaha another example of an unintended consequence. In setting up the circuit-breaker tax credits, Indiana has pushed the value of a homestead deduction even higher. If it means the difference of hundreds or even thousands of dollars on a tax bill, homeowners are going to do all they can to qualify for a homestead credit.

Adams County Auditor William Borne had the most apt observation, however. He pointed out that it’s easy for lawmakers to clamor for an expanded definition of a homestead because they won’t have to pay for it. If they extend tax breaks to pools and outbuildings, they get the credit for lowering some peoples’ tax bills, and it will be schools and local governments that take the hit on lost property tax revenue – a can’t-lose proposition for legislators.

Before they consider extending tax credits even further, lawmakers should note that the first homeowners to benefit from the homestead caps this year are owners of high-end real estate. Are those really the homeowners who need more property tax relief, granted at the expense of schools, libraries and parks? Is that legislators’ intent?

Here is the August 2nd story by Niki Kelly referenced in the editorial.

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to General Law Related

Ind. Courts - "Dvorak explains delay in South Bend arson/murder case"

St. Joseph County Prosecutor Michael Dvorak explains the ins and outs of extradition in this story today by Jeff Parrott in the South Bend Tribune. Some quotes:

Typically when a suspect flees the state and is captured elsewhere, he signs a document waiving extradition proceedings back to the state where he is wanted.

That means he won't fight a prosecutor's assertion that he is wanted in connection with the warrant.

But so far, Douglas Grant Jr. is refusing to do that from his jail cell in Benton County, Wash.

Still, St. Joseph County Prosecutor Michael Dvorak said he is confident that Grant, a homeless man charged in a July 6 arson that killed 92-year-old Thula Ullrey in South Bend, will be back in his jurisdiction soon to face charges of felony murder, arson and six counts of attempted murder.

When a suspect fights extradition, the charging prosecutor must send an application seeking extradition to the Indiana attorney general, who reviews it and forwards it to the Indiana governor, Dvorak said. The Indiana governor then sends it to the governor in the state that's holding the fugitive, and if a judge ultimately decides that the suspect is the same person as the sought fugitive, he is sent back to the initial charging state.

The process has nothing to do with the suspect's guilt in the alleged crime, Dvorak noted. It's simply about proving that the person being held is the same as the individual who is wanted on the warrant.

Dvorak said his office sent the extradition papers to the Indiana attorney general on July 30. The documents included Grant's fingerprints, photographs and personal information.

A Benton County (Wash.) judge last week set Grant's bail at $5 million. But at a hearing there Wednesday, the judge went further, revoking bail completely upon a request from Benton County Prosecuting Attorney Scott Johnson, Johnson said. * * *

Dvorak said most fugitives waive extradition because they know it's only a matter of time before prosecutors establish their identity. So why fight it?

"If the prosecutor in the state that filed charges doesn't go through the trouble of filing papers for extradition (within 60 days under Washington statute), they have to let you go," Dvorak said. "Why do you buy a lottery ticket?"

Once extradition is granted, the cost of transporting Grant back to Indiana will fall on the St. Joseph County Sheriff's Department budget, Dvorak said. He did not know how much that will cost.

A contracted prisoner transportation firm likely will drive Grant back to Indiana in a bus containing fugitives from other states, he said.

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to Indiana Courts

Ind. Courts - "Red Spot may have to pay $26 million for cleanup" [Updated]

Dan Shaw has a report today in the Evansville Courier & Press headed "Red Spot may have to pay $26 million for cleanup: Plaintiff have had to remove asbestos within same site." Here are some quotes:

A plaintiff is asking Red Spot Paint & Varnish to pay nearly $26 million to clean up contaminants near the company’s headquarters.

Earlier this week, 1100 West LLC, a local real-estate partnership, submitted a remediation plan to a federal court. The document calls for Red Spot to take a number of steps to remove chemicals known as chlorinated solvents from seven acres lying west of U.S. 41 and between Columbia and Virginia streets.

According to court documents, 1100 West LLC is looking at building residences for homeless veterans there. The company alleges the land was contaminated from past operations at Red Spot’s building at 1107 E. Louisiana St.

The cost of the proposed remedy will be between $24.7 million and $25.8 million. Red Spot will have 60 days to raise objections, and a hearing on the case is scheduled to occur Nov. 4. * * *

Besides 1100 LLC, the remediation plan says contamination from Red Spot has encroached upon the Child Development Center run by the Community Action Program of Evansville at 1000 E. Virginia St. Inside the building, inspectors found vapors from chemicals used by Red Spot were at higher than acceptable concentrations, according to court documents.

Also affected is a building at 1011 E. Columbia St., leased by the construction firm Goedecke. The air inside has also been polluted by chemicals coming from Red Spot, according to the documents.

To clean up the sites, 1100 West LLC said Red Spot should use a method which runs electricity through the ground to heat the contaminants and hasten their evaporation. In the interest of preventing future pollution, a barrier should also be built between Red Spot and 1100 West LLC’s site.

The lawsuit against Red Spot dates to 2003. In June, the federal judge overseeing the case ruled that Red Spot and its lawyers had purposely withheld evidence and issued a default judgment in favor of 1100 West LLC.

The ruling gave Red Spot the responsibility of paying for the cleanup of 1100 West LLC’s site.

Here are earlier entries on the Red Spot case, from June 10th and June16th.

[Updated 8/9/09] The Indianapolis Business Journal had a brief story Aug. 7th that reported:

An Evansville company could be forced to pay nearly $26 million in environmental cleanup costs after a federal judge in June found the business and its former attorneys had purposely withheld evidence and misled the court.

A filing submitted Tuesday in U.S. District Court, Southern District of Indiana, by 1100 West LLC estimated costs to remediate its property at between $24.7 million and $25.8 million. Judge Larry McKinney will determine the amount, which is part of a partial settlement agreement reached last month with defendant Red Spot Paint & Varnish Co.

The agreement follows the draconian step McKinney took in June of declaring the plaintiff, 1100 West-a neighbor of Red Spot that had blamed the firm for contaminating its site-victorious in an environmental contamination lawsuit without going through a trial.

McKinney found Red Spot failed to come clean about its use of the toxins trichloroethylene and perchloroethylene, and that its legal counsel, Indianapolis law firm Bose McKinney & Evans LLP, "compounded the problem by, like a chameleon, becoming indistinguishable from its client."

The judge stipulated that Bose and Red Spot each pay half of the legal fees of 1100 West, which are estimated to run into the millions.

The law firm stepped down from representing Red Spot early this year, and the two principal litigators who handled the case are no longer with the firm. One was fired and the other agreed to quit, according to court records.

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to Environment | Ind Fed D.Ct. Decisions | Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In PS2, LLC, D/B/A Boston's Gourmet Pizza v. Adam Childers , an 18-page opinion, Judge Darden writes:

PS2 LLC d/b/a Boston’s Gourmet Pizza (“Boston”) appeals the order of the Worker’s Compensation Board (“the Board”) holding that Adam Childers was entitled to receive a certain secondary medical treatment and the continued payment of temporary total disability benefits. We affirm.

ISSUES: 1. Whether the Board erred when it held that Childers was “entitled to receive secondary medical treatment, including surgery, for weight reduction as a precursor to his primary entitlement to back surgery to directly repair the result of his work-related accident.” 2. Whether the Board erred when it held that Childers was entitled to receive temporary total disability benefits “while preparing for, undergoing and recovering from both his secondary and primary surgeries to treat his work-related injury, until such time as [his] injury shall become quiescent and be determined to be in a state of maximum medical improvement.” * * *

Thus, evidence supports the Board’s conclusion of the requisite causal relationship between Childers’ work-related injury and the need for lap band treatment. Estey Piano Corp., 329 N.E.2d at 243. As in Four Star Fabricators, 638 N.E.2d at 794, evidence supports the Board’s conclusion that Childers met his burden of proof in establishing that his weight at the time of the injury, the blow to his lower back, and the immobility resulting from the injury resulted in an overweight condition with back pain -- i.e., “a single injury” -- which required the lap band procedure. Further, consistent with Outlaw, Childers’ weight at the time of the injury made him “more susceptible” to the immobilization that resulted from his workplace back injury, thereby requiring the lap band procedure as part of the necessary treatment for that injury. 742 N.E.2d at 542.

NFP civil opinions today (2):

Buckhead Realty, et al v. Jeffersonville Board of Zoning Appeals, et al (NFP) - "Based on the foregoing, we hold that trial court properly affirmed the BZA’s grant of a developmental standards variance as Buckhead and Rocky’s did not have standing to challenge the BZA’s decision."

The Invol. Term. of the Parent-Child Rel. of C.H., H.H., and U.H.; M.H., and R.H. v. Indiana Dept. of Child Svcs. (NFP)

NFP civil opinions today (7):

Vernell Brock v. State of Indiana (NFP)

Christopher P. Tanas v. State of Indiana (NFP)

Michael Q. Blair v. State of Indiana (NFP)

Charles Moore, Jr. v. State of Indiana (NFP)

Michael J. Orr v. State of Indiana (NFP)

Michael Achenbach v. State of Indiana (NFP)

William Young v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Writing Expert Says Astor’s Signature Was Forged"

Updating this list of earlier ILB entries on the Brooke Astor estate dispute, John Eligon wrote yesterday in the NYT City Room Blog:

Analyzing the arcs and spaces that an untrained eye might not catch on Brooke Astor’s signature on a 2004 document, Gus R. Lesnevich came to an unequivocal conclusion.

“I have absolutely no doubt it’s not Brooke Astor’s signature,” Mr. Lesnevich said on Wednesday in State Supreme Court in Manhattan.

That testimony by Mr. Lesnevich, a forensic document examiner and prosecution witness, appeared to be a blow to Francis X. Morrissey Jr., an estate lawyer who prosecutors have accused of forging Mrs. Astor’s signature on that March 3, 2004, codicil to her will. * * *

Mr. Lesnevich, who said he had examined more than 240 of Mrs. Astor’s signatures dating back to 1953, testified that there were four reasons he believed that the signature was not hers.

There was no space between the “r” and the “o” in “Brooke,” something she had done in all but one of the signatures he examined, Mr. Lesnevich said. Her maiden name, “Russell,” was used, and in that, too, Mr. Lesnevich testified, he found an inconsistency. In 29 prior signatures, she left a space after the “u” and printed the “ss” in block letters. On the codicil, there is no space and the “ss” is not legible.

The final two inconsistencies have to do with the signature’s neatness. The name was written more legibly than on other things she signed at about the same time. At the time of this codicil, Mrs. Astor was nearly 102, and, according to Mr. Lesnevich, she was not writing very clearly. The “Astor” in particular is more legible than the “Brooke Russell,” Mr. Lesnevich said.

“When you get to the last name, ‘Astor,’ all of a sudden you have a beautifully, well-crafted signature,” Mr. Lesnevich said.

The final problem, Mr. Lesnevich said, is that the letters are evenly aligned. “She can’t write that well,” he said.

The codicil provided that all the homes Mrs. Astor owned be sold after her death and that the money be added to her estate. A larger estate would mean greater executors’ fees, and Mr. Marshall, 85, and Mr. Morrissey, 66, were both listed as executors.

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to Courts in general

Courts - "'Iqbal' Forces Federal Judge's Hand on No-Fly List"

Updating this ILB entry from August 4th, Dan Levine of The Recorder writes today in a story that begins:

Northern District of California Judge William Alsup must apply the heightened civil pleading standards recently laid out by the U.S. Supreme Court. But that doesn't mean he has to like it.

In a ruling last week, Alsup dismissed discrimination claims against the city of San Francisco in a high-profile challenge to the federal government's so-called no-fly list. The plaintiff, Rahinah Ibrahim, had alleged the feds mistakenly placed her on the list, and that city police illegally handcuffed her at San Francisco International Airport.

That Ibrahim is Muslim is not enough to draw an inference of discrimination under the U.S. Supreme Court's ruling last year in Ashcroft v. Iqbal , 09 C.D.O.S. 5961 , the judge ruled.

"A good argument can be made that the Iqbal standard is too demanding. Victims of discrimination and profiling will often not have specific facts to plead without the benefit of discovery," Alsup wrote. "District judges, however, must follow the law as laid down by the Supreme Court."

However, Alsup wrote, Ibrahim may eventually reassert her discrimination claims -- if she digs up enough facts during discovery on her surviving Fourth Amendment allegations tied to her detention at the airport. The judge barred any defense motions for summary judgment until after discovery is finished.

"Judge Alsup has created a novel way to deal with the harshness of the Iqbal rule," said one defense lawyer involved in the case who was not authorized to speak on the record. "Whether that's fair to defendants, or not, is something that maybe the 9th Circuit, or ultimately the Supreme Court, will decide."

Posted by Marcia Oddi on Thursday, August 06, 2009
Posted to Courts in general

Wednesday, August 05, 2009

Ind. Law - New golf cart law, as amended, may work a hardship on those outside Culver town limits

Here is what Jeff Kenney, Citizen editor, writes in the July 30th Culver Citizen, under the heading "Golf cart conundrum." I've highlighted some passages:

An Indiana law which took effect July 1 has folks in the Culver area debating its merits, particularly those living around Lake Maxinkuckee or operating golf carts around Culver Academies.

House Bill 1483 — which technically includes off-road vehicles, farm wagons, and golf carts — upholds a state ban on operation of golf carts, popular in the Culver area in varying degrees for several years, from being driven on state or county highways. The bill allows town or city municipalities to make their own laws regarding golf cart usage, a clause most directly relevant to Culver, since the town formally passed a golf cart law in 2007, due to many residents’ concerns that the vehicles be regulated.

As a result, since that time those living within the town may legally operate a golf cart, provided they are licensed and insured, comply with the specifics of the ordinance, and register with the town for a golf cart tag, which is good for one year.

The fallout from House Bill 1483 relates to the areas outside the Culver town limits proper. For some years, many residents around the lake have made ample use of golf carts to travel to — naturally — one of the golf courses in the area, to other homes, or even into the town or to the Academies campus. With the passing of the new law, those residents can be ticketed and fined for golf cart usage.

This is particularly impactful in light of last year’s spike in gasoline prices, during which a number of area residents — in and out of the town limits proper — purchased and began using golf carts at a drastically increased rate as a means of economizing.

Another area potentially affected by the law is the Culver Academies’ campus. Golf carts have been the preferred method of transport for everyone from security officers, to tech staff, to camp counselors at the school’s summer camp in to some degree even its winter school. To a large extent, those golf cart users will remain unaffected by the law, since the campus is private property and golf cart use on Academies land is perfectly legal and acceptable.

However, Academies staff will have to take steps, due to the law, to ensure their golf cart routes avoid any travel not only on the two state highways surrounding part of the campus (S.R. 117 and 10), but also Academy Road itself or any other street immediately adjacent to the school.

Culver’s town limits end at the east — that is, in the Culver Academies area — around the old Vandalia railroad tracks, a few short steps west of the western edge of campus (a few hundred feet west of Eppley Auditorium), according to Culver Chief of Police Wayne Bean. He notes, also, the town limits officially end to the south around Chadwick Shores on Long Point, on West Shore Drive, and to the west just past the trailer court on West Jefferson Street.

It may surprise some, Bean points out, to learn the recent legislation was actually aimed at loosening state laws on golf cart usage. “The state is giving cities and towns the opportunity to have golf carts in town under (those communities’) ordinances,” Bean explains. Before the July 1 law was passed, he says, “In some parts of Indiana, county officers were ticketing people in town (for driving the carts).”

Creating some confusion (and admittedly, frustration) locally is the fact that many residents with a Culver address who actually reside in Union Township have purchased tags from the town of Culver for legal golf cart use this year and in years past. Those people, Bean says, are still perfectly legal for in-town driving, “but anything outside of town applies under state statute. People coming from East Shore, for example, if it’s inside town, can use (golf carts). People have been stopped (by police) who have the tag, but (the golf cart) ordinance only applies to town.”

A different story altogether, notes Bean, are golf cart drivers who have not purchased town tags at all, or whose car usage doesn’t comply with the town ordinance in terms of mirrors, lights (golf carts must display a red or amber flashing light at times when headlamps are necessary for other motor vehicles), number of persons on board (which is limited by the intended number of passengers for which the golf cart is built). Some residents appear not to have read the rules of golf cart usage, Bean indicates, which are handed out at the purchase of the $25 cart registration at Culver’s town hall. He also says some specific issues regarding golf cart usage will likely be addressed via ordinance in the near future.

For now, legally registered golf cart users in the area outside Culver’s town limits can use their golf carts in town...they just may have some trouble getting them here.

The complete Culver golf cart ordinance may be read online via the town’s Web site. The state law concerning golf cart usage is available online at HEA 1483-2009.

ILB comments: The heading I've given this entry, "New golf cart law, as amended, may work a hardship on those outside Culver town limits," highlights the point the writer missed in his otherwise excellent analysis.

The law referenced by the writer, HEA 1483, sets out the law re golf carts as adopted in the 2009 regular session. However, several provisions were amended again in the special session, at the behest of the Indiana State Police.

These changes are sets out in HEA 1001-2009SS, SECTION 284, further amending IC 9-17-1-1 (certificates of title), and SECTION 285, further amending IC 9-18-1-1 (MV registration and license plates), narrowing the exceptions for golf carts enacted during the regular session to golf carts operating under an authorizing municipal ordinance. (Note that the exceptions for farm wagons were not narrowed.) See this ILB entry from July 15th and this one from July 17th for the comments of the Indiana State Police.

Posted by Marcia Oddi on Wednesday, August 05, 2009
Posted to Indiana Government | Indiana Law

Ind. Courts - Plan to move office of Starke County Prosecutor from the basement of the jail to the second floor of the court house

WKVI Daily News has this report today:

Yesterday www.wkvi.com had a chance to read the perspective of Starke County Commissioner Dan Bridegroom on plans to move Prosecutor Julianne Havens' office from the basement of the jail to the second floor of the court house. juliannehavens

Along with the convenience factor that was mentioned for her and her staff , there is also a safety component involved.

Bridegroom explained that a lot of courthouses are set up with the prosecutor's office in them now. For one, it's convenient because there is a lot of traveling back and forth from the courthouse to the prosecutor's office. Secondly, even though it's right across the street, Havens is the prosecutor and there are people who sit on the steps of the courthouse who she may be prosecuting at a particular point in time and, "we feel it's not safe for her and her staff," Bridegroom said.

Posted by Marcia Oddi on Wednesday, August 05, 2009
Posted to Indiana Courts

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

For publication opinions today (2):

In Vinod C. Gupta v. Jay Co. Auditor and Jay Co. Treasurer, Robin Alberson , a 9-page opinion, Judge Brown writes:

Vinod C. Gupta appeals the trial court's denial of his motion to set aside a tax sale. Gupta raises two issues, which we revise and restate as whether the trial court erred by denying Gupta's motion to set aside a tax sale. We affirm. * * *

Because Gupta's motion was in effect, at least in part, a challenge under Ind. Code § 6-1.1-25-16 and such a motion is subject to the sixty-day time limit of Ind. Code § 6-1.1-25-4.6, we conclude that the sixty-day time limit applies to Gupta's motion. As previously mentioned, Gupta did not file his motion to set aside and declare the tax sale void in the trial court until more than two years and eight months after the trial court entered an order directing the County Auditor to issue a tax deed relating to Gupta's parcel. We conclude that the trial court properly denied Gupta's motion to set aside the tax sale deed because the motion was not timely filed.

In Indianapolis Car Exchange, Inc. v. Randall Alderson and Christina Alderson, a 13-page opinion, Judge Barnes writes:
Indianapolis Car Exchange (“ICE”) appeals the trial court’s grant of summary judgment in favor of Randall and Christina Alderson. We affirm.

ICE raises four issues, which we consolidate and restate as whether the trial court properly entered summary judgment on the issue of title in favor of the Aldersons and ordered the BMV to release a lien held by ICE. * * *

In sum, whether Indiana Code Sections 26-1-9.1-320(a) or 26-1-2-403(2) are read separately or in conjunction with one another, the Aldersons should be permitted to take title free of ICE’s security interest in the truck. The trial court properly granted the Aldersons’ motion for summary judgment on the issue of title.

NFP civil opinions today (4):

Adrian G. Rangel v. Janell Rangel (NFP)

Paternity of K.M.; J.M. v. K.S. (NFP)

Term. of the Parent-Child Rel. of K.B.; Jennifer J. v. Vigo Co. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of S.I., et al; J.I. & A.I. v. IDCS (NFP)

NFP criminal opinions today (4):

William James Wise v. State of Indiana (NFP)

Joseph Lanie, Jr. v. State of Indiana (NFP)

L.B. v. State of Indiana (NFP)

Joshua L. Stannard v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 05, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on: 2nd Circuit Refuses to Block Chrysler’s Sale

Updating this ILB entry from June 5th, today the 2nd Circuit has filed the 53-page opinion to accompany its June 5th decision.

Posted by Marcia Oddi on Wednesday, August 05, 2009
Posted to Courts in general | Indiana Government

Ind. Gov't. - More on: State paying millions more to "correct" IBM problems in implementing welfare contract?

Updating this ILB entry from August 2nd, the Evansville Courier & Press has a hard-hitting editorial today headed "Welfare woes." Some quotes:

Call us naive, but we thought the cost of adjustments to Indiana's privatized welfare application system would be on the backs of the contractors — not the taxpayers — given that the businesses had agreed in late 2006 to give the state a modern, automated operation for $1.16 billion.

But now we learn that the privatized system is costing Indiana an additional $180 million, some of it to fix the basic program, which has come under harsh criticism from advocates for welfare clients.

And we have learned, based on a contract review by The Associated Press, that the administration agreed in 2008 for the private contractors, led by IBM, to take on additional responsibilities even though they were having difficulty delivering basic services to welfare applicants.

The program has been so troubled that Indiana Family and Social Services Administration Secretary Anne Murphy has told the contractors that the state could drop their program if improvements aren't made by the end of September.

What's puzzling is why the state should have to pay for those improvements for services that the contractors agreed to deliver originally.

More from the story:
Now we learn from The Associated Press of additional contract obligations from the state to the contractors.

For example, the state agreed to pay $35 million for additional staff and for a Web portal for nursing homes and group homes. These were seen as addressing some of the trouble areas.

Also, $7 million was added for additional staff and overtime to meet a higher volume of welfare applications.

Also, in 2008, a whopping $130.2 million was added to the original agreement for the contractors to begin processing applications for the Healthy Indiana Plan (HIP), a state-sponsored medical saving account for low-income adults, and for emergency food stamps, as a result of flooding.

We would have thought that the state would have allowed the contractor to get basic services right first.

The editorial concludes:
In the meantime, the Indiana Legislature has asked the State Budget Committee to investigate and determine whether the private contractors are doing their job under the contract. According to the AP, on Monday, the Legislative Council — a group of legislative leaders — assigned the task to the powerful committee.

It is about time that some group other than the administration was brought into the fray.

It is taking too long to make it work. The state's most vulnerable citizens need these services delivered in an efficient, timely and understandable manner. The old government-run system did not do well for these citizens, and now, it appears, the private sector is failing them as well. It is not lost on anyone here that Texas ended such an arrangement with another company in 2007 after problems developed there.

It must pain Indiana taxpayers as well, now, to learn that additional millions are being spent as the contractors attempt to get it right.

Here is the August 2nd AP story by Ken Kusmer referenced in the editorial.

Posted by Marcia Oddi on Wednesday, August 05, 2009
Posted to Indiana Government

Ind. Decisions - "Judges deal double defeat to songwriter who sued Lake tourism bureau"

The August 3rd 7th Circuit decision in Cheryl Janky v. Lake Co. Convntion & Visitors Bureau (reported by the ILB here) and the 21-page order dated July 31st, out of the ND Hammond Division, in the case of Cheryl Janky v. Speros Batistatos et al (reported here by the ILB) are the subject of this story today by Dan Hinkel of the NWI Times. Some quotes:

HAMMOND | Hammond songwriter Cheryl Janky has filed several lawsuits against the Lake County tourism bureau over a doo-wop song, but two recent judicial decisions might give Janky material more appropriate for a blues record.

On Monday, judges from the 7th Circuit Court of Appeals in Chicago reversed the judgment and $100,000 jury award Janky won in 2007 when she sued the Lake County Convention and Visitors Bureau for licensing the song "Wonders of Indiana" from another songwriter. Janky claimed she wrote the song alone. The panel of federal appeals judges ruled Monday that Janky wrote the song with Lakes of the Four Seasons songwriter Henry Farag, overturning the judgment and negating her award.

"This doo-wop ditty is a joint work," wrote 7th Circuit Judge Terence T. Evans.

One business day earlier, Hammond federal Judge Philip Simon dealt with another of Janky's lawsuits against the bureau when he issued an indignant rebuke and a $16,000 fine aimed at stopping Janky and her lawyers from continuing to file what Simon sees as abusive, haphazardly reasoned and "nearly indecipherable" legal claims against the tourism bureau.

"I have strong doubts as to whether they even bothered to proofread, let alone check, the foundations of their legal theories," Simon wrote.

More from the story:
The 7th Circuit judges called the case "over-litigated" in their opinion that overturned Magistrate Judge Paul Cherry's 2006 summary judgment in favor of Janky and the $100,000 a jury awarded in March 2007.

Simon's decision Friday was related to a federal lawsuit that followed Janky's $100,000 victory. The second suit claimed the bureau and its lawyers used unreasonable defenses in the first suit. Simon found this second suit to be based on a "flimsy" legal claim.

Simon's excoriating 21-page opinion and order fines Janky $1,000, while her Detroit-based attorneys, Gregory Reed and Stephanie L. Hammonds, absorb fines of $10,000 and $5,000, respectively.

Aiming to pre-empt the thickening of the legal "morass," Simon also ruled that if Hammonds and Reed file another federal civil suit against the bureau, they will have to post $5,000 to cover the "high probability of further sanctions." Simon noted many other cases that have led judges to fine the two lawyers. Simon wrote the lawyers seem to be "flaunting their inappropriate conduct."

Simon also chastised the lawyers for their "numerous typographical mistakes, run-on sentences, spelling errors and pervasive inability to put down on paper a cogent, comprehensible English sentence." He wrote that in one legal filing, the lawyers appeared to accidentally mention satellite television provider DirecTV. Simon wrote he suspects this was caused by an errant cut-and-paste.

Posted by Marcia Oddi on Wednesday, August 05, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Tuesday, August 04, 2009

Ind. Courts - More on: Managing the electronic communication revolution in the Indiana courtroom

In this ILB entry from July 25th, I quoted from an article in the New York Law Journal that: "Attorneys are objecting to tougher rules for bringing laptop computers, cell phones and other electronic devices into Manhattan's Daniel Patrick Moynihan U.S. Courthouse."

This story today by Mark Fass of the New York Law Journal, headed "Lawyers Urge End to Court's Cell Phone Ban," gives an update to the situation there:

An ad hoc committee of nine Southern District judges heard public comments last week regarding the potential use of cell phones, laptops and other electronic devices within the Manhattan federal courthouse.

The 90-minute forum on Thursday was billed as a discussion on whether such equipment should be permitted in the courthouse, notwithstanding concerns regarding security and decorum.

The Manhattan federal courthouse at 500 Pearl St. remains one of the last holdouts in the nation to continue to prohibit such devices for most non-courthouse personnel.

But without a single person speaking in opposition to repealing the ban, the event quickly resembled a pro-phone rally.

"I sort of wish there were representatives here taking the other side," Richard W. Levitt of the New York County Criminal Bar Association told the panel. "Because I simply haven't heard any cogent reason why lawyers who have credentials should not be allowed to bring telephones into the courtroom. Frankly, I just don't get it." * * *

Robert J. Giuffra, the president of the Federal Bar Council, submitted a nine-page, footnoted memorandum with 25 exhibits in support of overturning the ban.

The memo noted that courthouses throughout the country, including the U.S. Supreme Court, permit the use of electronic devices. Giuffra attached copies of district court rules from 24 other jurisdictions -- including the Eastern District of New York, less than 2.5 miles away in Brooklyn -- which allow cell phones.

The court's concerns, as stated in an e-mail by Crotty to the scheduled speakers, include security and "decorum."

The consensus among the speakers last week was that the Southern District's heightened security concerns notwithstanding, if such devices may be safely used on airplanes, there must be a method for safely screening them for courthouse use.

The speakers expressed even less concern regarding the potential threat to decorum. Individual judges may continue to set their own rules regarding phones, several speakers suggested, and, as Syracuse said, "Lawyers are used to following rules."

As Giuffra wrote in his memo, "As officers of the court, lawyers must comply with court orders, rules and procedures, including rules governing conduct inside the courtroom. To a far greater degree than members of the public, lawyers must understand that their failure to follow court orders, rules and procedures can result in penalties."

Although it is not clear from the story, the general public appears to be prohibited from carrying or using any electornic devices anywhere in the Manhattan federal courthouse. The issue is whether this ban should continue to extend to attorneys also.

Posted by Marcia Oddi on Tuesday, August 04, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Joseph Balagtas and Federated Mutual Ins. Co. v. Harry Joe Bishop , a 12-page opinion, Judge Kirsch writes:

Federated Mutual Insurance Co. (“Federated”) appeals from the trial court’s order denying its motion for summary judgment and granting summary judgment in favor of Harry Joe Bishop (“Bishop”) in his claim for underinsured motorist coverage. Federated presents the following restated issue for our review: whether the trial court erred in its interpretation of Indiana Code section 27-7-5-2 as requiring a named insured’s election or rejection of uninsured or underinsured motorist (“UM/UIM”) coverage to apply to all insureds. * * *

We find that, here, the trial court correctly determined that the provision of the UM/UIM coverage option form that provides no coverage for some insureds contravenes the statute and that Federated must provide UM/UIM coverage in an amount equal to the bodily injury liability provision of the policy, $500,000, to Bishop. Furthermore, as the trial court stated “[t]he policy of the statute would be defeated if the person with the power to elect or decline coverage could elect coverage for herself while declining coverage for others.” Appellant’s App. at 9. The trial court correctly granted summary judgment in favor of Bishop, finding that Federated must provide UIM coverage in the amount of $500,000 to him. Affirmed.

In Chad Gibson v. State of Indiana , a 10-page opinion, Judge Robb writes:
Chad Gibson was charged with operating a motor vehicle while intoxicated (“OWI”), a Class A misdemeanor, on March 26, 2007. The trial court denied Gibson’s subsequent motion for discharge pursuant to Criminal Rule 4(C) and, following a bench trial, found Gibson guilty as charged. Gibson appeals, raising the sole issue of whether the trial court erred in denying his motion for discharge. Concluding that Gibson was not brought to trial within one year, we reverse. * * *

Disregarding the CCS entries which we hold Gibson has shown to be factually inaccurate, there is no indication that Gibson ever did anything within the one-year period to prevent the State from bringing him to trial. * * *

We do not agree with the trial court’s determination for two reasons. First, as noted above, the CCS entries in this case were not reliable. Second, the trial court’s decision effectively placed the burden on Gibson to ensure that he was brought to trial within one year. However, “a defendant does not abandon his right to a speedy trial when he engages in plea negotiations.” Leek, 878 N.E.2d at 280. Until Gibson himself requested one, a trial date had never been scheduled, despite the State’s affirmative duty to see that Gibson was tried within one year and its ability to request a trial date at any time. On May 5, 2008, when Gibson requested a contested bench trial be set, the one-year period had already run. Therefore, he had no obligation to object to the setting of the trial date. See Pelley, 901 N.E.2d at 498.

Conclusion. Because the State did not bring Gibson to trial within one year of the date charges were filed, the trial court erred when it denied his motion for discharge pursuant to Criminal Rule 4(C).
Reversed.

NFP civil opinions today (3):

The Invol. Term. of the Parent-Child Rel. of H.L. and A.Z. v. Marion Co. Dept. of Child Svcs. (NFP)

Z.S., Alleged to be CHINS; T.M. & C.S. v. IDCS (NFP)

Term. of Parent-Child Rel. of R.F.; R.E.F. v. IDCS (NFP)

NFP criminal opinions today (9):

John M. Evans v. State of Indiana (NFP)

Charles Walker v. State of Indiana (NFP)

Kent A. Easley v. State of Indiana (NFP)

Shawn T. O'Neill v. State of Indiana (NFP)

Milton Medsker v. State of Indiana (NFP)

Lovell J. Jones v. State of Indiana (NFP)

William Moser v. State of Indiana (NFP)

Raymond L. Childs v. State of Indiana (NFP)

Steven L. Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Evansville student is among 30 participating in an Indiana Supreme Court summer program for those interested in law school"

The Evansville Courier & Press reports:

Tanisha Carothers, a 2005 graduate of North High School and a 2009 graduate of Tennessee State University, is taking part in the Indiana Conference for Legal Education Opportunity.

It's a program designed to assist Indiana minority, low-income or educationally disadvantaged college graduates in pursuing a law degree and a career in the Indiana legal community.

The program was founded in 2007 by former Gov. Frank O'Bannon and the General Assembly at the urging of Chief Justice Randall Shepard.

Carothers, the daughter of Kelly Scroggins, will attend Indiana University law school in the fall. Her goal is to operate a juvenile rehabilitation center.

More on the Indiana Conference for Legal Education Opportunity (ICLEO) Summer Institute here, including a news release for nearly every one of the 30 students.

Posted by Marcia Oddi on Tuesday, August 04, 2009
Posted to Indiana Courts

Courts - "Kentucky judge's no-objection policy struck down"

Jason Riley reports today in the Louisville Courier Journal:

The Kentucky Court of Appeals has upheld a lower court ruling ordering Jefferson District Judge Sean R. Delahanty to stop forbidding prosecutors from making objections in his courtroom.

The ruling, supporting a March 2008 decision by Circuit Judge Susan Schultz Gibson, said it is “fundamental to our judicial system that an attorney zealously represents his client without fear of repercussions from the court.”

In February 2008, Delahanty threatened to hold a prosecutor in contempt if he objected during a probable-cause hearing, saying it violated the judge's long-standing, unwritten policy.

At the time, Delahanty told then-County Attorney Irv Maze and several of his prosecutors that he was tired of certain prosecutors wasting court time by making “obnoxious” and “ridiculous” objections” during hearings.

Under his policy, Delahanty said prosecutors have a “standing objection to each and every question” that defense attorneys ask of witnesses during probable-cause hearings. Such hearings are held so a judge can decide if there is enough evidence for a case to continue.

The appeals court ruled Friday that Delahanty could have found the individual prosecutor in contempt but could not issue a “verbal and written directive that quashed every county attorney's ability to object to any question poised to a defense witness.”

Posted by Marcia Oddi on Tuesday, August 04, 2009
Posted to Courts in general

Courts - "Two More 'Iqbal' Dismissals Emerge in Product Liability Cases"

Updating earlier ILB "Iqbal" entries, Alison Frankel reports today in the The American Lawyer in a story that begins:

The Supreme Court's May 2009 ruling in Ashcroft v. Iqbal is quickly becoming the best thing to happen to the products liability defense bar since Daubert. We told you a couple of weeks ago about the dismissal of a false-marketing suit involving AstraZeneca's anti-psychotic drug Seroquel because it didn't meet the new, tougher pleading standard the Court laid down in Iqbal. Now we have word of two other recent Iqbal dismissals involving controversial products. No wonder Sen. Arlen Specter is on the warpath against Iqbal.

Posted by Marcia Oddi on Tuesday, August 04, 2009
Posted to Courts in general

Monday, August 03, 2009

Ind. Decisions - Transfer list for week ending July 31, 2009

Here is the Clerk's transfer list for the week ending July 31, 2009. It is two pages long.

Two transfers were granted; they were discussed in this ILB entry from July 30th.

________

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 5 1/2 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, August 03, 2009
Posted to Indiana Transfer Lists

Ind. Gov't. - Still more on: IU Law tutition slated to go UP!

Updating this ILB entry from July 9th, Karen Sloan of the National Law Journal reports today that "At public law schools, tuition jumps sharply: Students may pay as much as 20% more at some state institutions." Prominently mentioned in the lengthy story is:

In-state students at Indiana University Maurer School of Law – Bloomington will pay almost 25% more in tuition than they paid last year, bringing their tuition from just below $20,000 to nearly $25,000.

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Indiana Government

Law - More on "Illinois Law Dean Announces New Admission Policy in Wake of Scandal"

Updating this ILB entry from July 12th, the Chicago Tribune has a breaking news report this afternoon headed "U. of I. trustee board chairman resigns." It begins:

The chairman of the University of Illinois' Board of Trustees, Niranjan Shah, resigned his seat today amid a highly-publicized scandal of the school's admissions system that favored well-connected students, including several of Shah's own relatives and his employees' children.

An Oak Brook businessman and deep-pocketed political donor, Shah leaves the board's most powerful post less than a year after he was appointed to it.

His departure came days before a state commission, impaneled by Gov. Pat Quinn to investigate admissions abuses, is expected to disclose its recommendations--namely a call for the entire board to step down and allow the governor to decide which members, if any, he will reappoint.

Shah's resignation is the second in the midst of the unfolding admissions probe. Trustee Lawrence Eppley stepped down last week.

"When I became a Trustee...many of the stakeholders in the University of Illinois system--Trustees, university administrators and staff, legislators and others--operated under a set of rules and norms that seemed appropriate at the time," Shah said in a prepared statement. "Today, I recognize that those rules are changing with the times, and I think that change is a very good thing."

Shah said he resigned when the Illinois Admissions Review Commission made clear it would recommend the resignation of all trustees, leaving the board's reconstitution in the governor's hands. * * *

School records reveal that Shah sought advantages for his relatives and friends in admissions, housing and employment matters.

In 2007, for instance, Shah parlayed his connection with Chancellor Richard Herman to secure a high-paying university job for his future son-in-law, a Dutch citizen seeking work in the United States.
University records and e-mails detail how U. of I. officials created a position without conducting a routine search, secured a work visa and paid Maarten de Jeu an annual salary of $115,000--more than other employees with the same title. Herman dipped into campus reserves to pay the salary because the position was not funded by the university department that ultimately hired him.

Shah has said he "encouraged" the university to hire de Jeu, "an exceptionally well qualified" applicant who graduated first in his class from an executive MBA program at Oxford University.

While Shah acknowledged he "advocated" for student applicants, he testified before the state commission that many of his most aggressive requests were written by a secretary at his Chicago-based engineering firm who embellished his intentions.

In March 2008, Shah pushed for a student to be admitted to the rigorous MBA program, even though Chancellor Richard Herman warned that school officials "had serious concerns about his ability to handle the academics" and the student's GPA was "below what is admissible." Admissions officers were never able to confirm whether the student had attended an accredited college.

"May be [sic] he can be on probation during first year," Shah suggested.

E-mails show that when Shah pressed for a decision before he visited the student's family in India, the business school relented and offered the applicant a spot.

Shah said the applicant's family reached out to him because they wanted to be sure the admissions office was aware of the complex grading systems used at some Indian universities, including the one the student attended.

"Clearly, the most egregious cases have been identified," said Trustee David Dorris, who said he was "saddened" by Shah's resignation. "We need to really look at this thing from top to bottom."

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to General Law Related

Environment - "Vultures roost in downtown Lafayette"

Turkey vultures, according to the story today in the Lafayette Courier & Courier, reported by Justin Mack. Here is a photo.

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Environment

Ind. Decisions - 7th Circuit issues two Indiana opinions today; also a case re attorney fees under the FDCPA

In Cheryl Janky v. Lake Co. Convntion & Visitors Bureau (ND Ind., Rodovich, Magistrate Judge), a 17-page, 2-1 opinion, Judge Evan's opinion begins:

This over-litigated case, involving a song by a doo-wop group, comes to us with 18 district court orders and memorandum opinions spread over a combined 239 pages. The district court’s 46-page docket contains a staggering 371 entries. And the briefs of the parties on appeal are a bit unfocused to say the least. But although it’s a tough job, someone has to do it, so with shoulder to the wheel, we forge on.

Lake County, Indiana, is the home of Gary, a gritty industrial town southeast of Chicago. But there’s much more to Lake County than Gary—including miles of pristine beachfront along the Indiana Dunes National Lakeshore—and the Lake County Convention and Visitors Bureau (the Bureau) wants you to know that. To get the word out, the Bureau commissioned a tune singing the county’s praises, the distribution of which led to this lawsuit for copyright infringement. Cheryl Janky says she composed the song and never gave the Bureau permission to use it. The Bureau maintains that Janky was only a co-author and that it had the authority to use the song by licensing it from the other songwriter, Henry Farag.

In Joe Baird v. John Renbarger (SD Ind., CJ Hamilton), a 12-page opinion, Judge Wood writes:
Law enforcement is a difficult job, as “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). This reality is reflected in the fact that courts give considerable leeway to law enforcement officers’ assessments about the appropriate use of force in dangerous situations. See, e.g., Scott v. Harris, 550 U.S. 372, 385-86 (2007). This latitude ends, however, when police officers employ force that is clearly excessive or unreasonable under the circumstances. That is the case here.

Officer John Renbarger participated in the execution of a search warrant that was based on the crime of altering a vehicle identification number (“VIN”). The crime itself does not involve violence; there was no suggestion that anyone at the search location was armed or dangerous; and no one at the site presented any resistance. Despite this, Renbarger decided to wield a 9-millimeter submachine gun, which he used to detain various people at the search site. The search ended when the officers concluded that the VIN had not actually been altered.

The people who had been held temporarily filed suit under 42 U.S.C. § 1983 alleging violations of the Fourth Amendment and state law. Our appeal, however, deals only with the claims of excessive force against Renbarger, who filed a motion for summary judgment on the basis of qualified immunity. The district court denied his motion, and Renbarger has taken an interlocutory appeal from that order. We affirm. * * *

We conclude that a reasonable jury could find that Renbarger violated the plaintiffs’ clearly established right to be free from excessive force when he seized and held them by pointing his firearm at them when there was no hint of danger. As a result, Renbarger is not entitled to qualified immunity.

For these reasons, we AFFIRM the district court’s opinion.

In Schlacher v. Law Offices of Rotche (ND Ill.), a 12-page opinion, Judge Williams writes:
Plaintiffs Jean, Alfred, and Teri Schlacher sued the defendant, a debt-collection law firm, for violating the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, and, within three months of filing their complaint, they accepted offers of judgment totaling $6,500. The plaintiffs, who were represented by four attorneys from three different law firms, sought attorney’s fees of $12,495 and costs of $437.70. The district court awarded $6,500 in fees and costs, explaining that the unnecessary use of multiple attorneys had led to excessive billing in a straightforward, short-lived case. We affirm.

[See table of rates on p. 4 of opinion.]

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Ind. (7th Cir.) Decisions

Environment - "Critics say little change since BP permit issued"

That is the headline to this story today by Gitte Laasby in the Gary Post-Tribune. Some quotes from the lengthy story:

It's been two years since the Indiana Department of Environmental Management issued the controversial water permit for BP Whiting, allowing the refinery to increase pollution into Lake Michigan.

An independent report by Indiana University professor Jim Barnes concluded that unclear state laws on when, and by how much, a facility can increase its discharges into Lake Michigan led to the controversy over the permit.

But critics say the problems Barnes pointed out have yet to be resolved.

"I'm really concerned, based on the history in Indiana, that as the rules exist now, BP could happen again," said Brad Klein, attorney with the Environmental Law & Policy Center in Chicago.

Klein is part of a stakeholder group of industries, municipalities and environmentalists that has been meeting with IDEM staff to clarify the state's so-called anti-degradation rules for nearly a year and a half.

The anti-degradation rules aim to protect water quality from being degraded. They specify under which conditions new or increased discharges can occur to Lake Michigan and various streams and inland lakes.

Indiana's laws don't allow new or increased discharges into Lake Michigan of chemicals like mercury that accumulate in fish and people who eat fish from the lake.

But facilities may be allowed new or increased discharges of other, less toxic, pollutants. That can happen if a plant demonstrates the increased discharge is necessary. A plant can do so by conducting an anti-degradation analysis showing that alternatives to the increase have been evaluated and the increase is necessary to accommodate important social and economic benefits.

But the new rules also propose setting an "insignificance" level under which facilities won't need to prove the increased pollution is necessary.

For Lake Michigan, that level is proposed to be 1 percent to 2 percent of the total amount of each pollutant that the lake can accept while still allowing people to fish, swim and use the lake for drinking water.

Environmentalists are concerned that Lake Michigan's "insignificance" level would lead to an enormous amount of pollution.

"The loading capacity of Lake Michigan is huge compared to other waters in Indiana," said Lyman Welch, water quality program manager for the Alliance for the Great Lakes. "You can't base the amount of pollution that you can add to Lake Michigan based on the capacity of the entire lake. Pollution that's added to Lake Michigan is not uniformly distributed into the lake. Pollution will move up and down the shoreline depending on how the wind is blowing and how the currents flow."

Here is a side-bar, headed "Activists want tougher, clearer rules."

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Eric D. Smith v. Sgt. Thompson, DHB, and Barry Holder , a 6-page opinion, Judge Robb writes:

Eric Smith, an inmate at the New Castle Correctional Facility, appeals pro se the trial court's dismissal of his complaint as frivolous pursuant to Indiana Code section 34-58-1-2. For our review, Smith raises a single issue, whether the trial court improperly dismissed his complaint as frivolous. Concluding that Smith's claim is sufficient to withstand the initial screening of the statute with respect to Thompson but not Holder, we affirm in part, reverse in part, and remand.

On February 13, 2009, Smith filed a complaint in the trial court against Jeff Wrigley and David Ittenbach alleging deprivation of his rights under the Eighth Amendment to the United States Constitution. The trial court dismissed Smith's complaint as frivolous. As a result of the dismissal, the Department of Correction (“DOC”) charged Smith with a disciplinary rule violation for filing a frivolous claim. A disciplinary hearing was held with Sergeant Thompson serving as the sole hearing member. Thompson found Smith guilty of the charge. Smith administratively appealed the decision, and Barry Holder, acting for Superintendent Jeff Wrigley, denied the appeal.

NFP civil opinions today (2):

A.K.C. v. J.B.C. (NFP) - "The trial court did not abuse its discretion when it awarded custody of the children to Father, when it admitted the report and testimony of the custody evaluator, or when it granted Father’s motion for a change of judge. The trial court also did not abuse its discretion in the division of the parties’ personal property or the valuation of the .84-acre vacant lot. However, the trial court did not adequately explain the $16,000 disparity in its distribution of the parties’ retirement funds. Therefore, we remand to the trial court to either explain the disparity or amend the distribution of the retirement funds in a just and reasonable manner."
[ILB Note - There is no explanation given as to why the parties in this divorce case are not identified by name.]

Eric D. Smith v. Jill Matthews, Jeff Wrigley, et al. (NFP)

NFP criminal opinions today (4):

State of Indiana v. Jonathan Dant (NFP) - "The traffic stop initiated by Foy was lawful. There was reasonable suspicion justifying Foy's OWI investigation. The trial court's ruling ordering the suppression of evidence was contrary to law. We reverse."

Amos L. Stephens v. State of Indiana (NFP)

Joshua Clark v. State of Indiana (NFP)

Tonya Vinson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - ND federal court imposes sanctions

We've seen several cases recently out of SD Indiana where the judge threatened sanctions or sanctioned an entire firm - see this ILB entry from June 10th headed "Judge McKinney imposes major sanctions in a second trial this year."

Now in a 21-page order dated July 31st, out of the ND Hammond Division, in the case of Cheryl Janky v. Speros Batistatos et al, Judge Simon writes:

The issue before the Court is whether attorneys Gregory Reed and Stephanie L. Hammonds (together, “Respondents”) should be sanctioned under Rule 11 for their filing a spurious complaint in this case. The complaint named Cheryl Janky as the plaintiff and was brought against the Lake County Convention & Visitors Bureau (“LCCVB”), its Board of Directors, its CEO Speros Batistatos, and its attorneys Timothy Jordan, Robert Goldstein, and Daniel Kuzman. The complaint was based on claims those Defendants asserted when defending an earlier federal copyright lawsuit, also brought by Janky. The main thrust of this second lawsuit was that the defenses used in the first case were frivolous and groundless. In fact, there was no basis for Janky’s second lawsuit, as it had been established in the initial litigation that the defenses were grounded in fact and credible evidence, and were held by the judge in that case to not be frivolous. After dismissing the complaint before me, I sua sponte ordered Respondents to show cause why they should not be sanctioned for violating Rule 11(b) of the Federal Rules of Civil Procedure. Because they failed to show that the claims included in the second lawsuit were warranted by existing law or by a nonfrivolous argument, or that the suit was brought for a proper purpose, sanctions will be imposed. * * *

In sum, I find that this entire lawsuit was not warranted by existing law or by a nonfrivolous argument. I also find that the case was brought for an improper purpose, both to harass Defendants and to needlessly increase the cost of litigation. I make this latter finding based not just on the blatant frivolity of the claims, but also because of the context in which the suit was brought. Respondents were clearly unhappy with the result of Janky I because the jury award would not cover their attorney fees, and were facing an even worse situation if LCCVB proved successful in their two appeals. The overwhelming thicket of excessive motions in Janky I demonstrates a significant amount of leverage-seeking, and the current suit can only be explained as a further attempt to get Defendants to back down and settle. Indeed, they attempted to do just that after filing this case by moving to enforce a global settlement agreement that was based on nothing more than a few emails between parties proposing some general settlement terms. The attorneys’ history of similar harassing conduct in other jurisdictions, for which they were also disciplined, demonstrates a pattern and proof that they are using their redundant claims as a leverage and harassment tactic, as opposed to just overzealous advocacy or a failure to understand pertinent legal concepts. The bringing of claims in order to “cause expensive delay in the hope of getting paid to go away,” is not a proper purpose under Rule 11. * * *

Enough is enough. It is apparent that neither side can take the hint, and I am half convinced that both parties are treating matters as a joke. But the best medicine will be to just end things. Respondents will be sanctioned for their bringing of the current lawsuit, pursuant to the Court’s Rule 11 powers. It was the filing of the second federal suit that opened pandora’s box and is the action most in need of court response in order to prevent future conduct. Although certainly the more innocent party, the Defendants’ latest Rule 11 motion strikes me as an overreach. Deterrence of abusive litigation practices is the central purpose of imposing Rule 11 sanctions. ... Tacking on additional Rule 11 sanctions to those already ordered will produce only the most marginal of additional deterrent incentive, and for all I know, may just as likely prompt a new cavalcade of filings. I will therefore wade no deeper into this morass. The Respondents’ subsequent motion to strike and both parties’ motions for Rule 11 sanctions are all dismissed.

CONCLUSION

1. Attorney Gregory J. Reed is fined in the sum of $10,000, payable to the Clerk of the Court by 1 month from the date of this order.

2. Attorney Stephanie L. Hammonds is fined in the sum of $5,000, payable to the Clerk of the Court by 1 month from the date of this order.

3. Cheryl Janky is fined in the sum of $1,000, payable to the Clerk of the Court by 1 month from the date of this order.

4. Attorneys Reed and Hammonds are prohibited from filing a complaint in a civil case on behalf of Cheryl Janky in this district without simultaneously posting a bond of $5,000 to cover the high probability of additional sanctions.

5. Respondents’ Motion to Strike [DE 43] is DISMISSED.

6. Defendants’ Motion for Attorney Fees and Costs Pursuant to Rule 11 [DE 46] is DISMISSED. Janky’s Motion for Extension to Respond [DE 48] is DISMISSED as moot.

SO ORDERED.

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "It's the Law: courts want people on their best behavior"

Ken Kosky's NWI Times' "It's the Law" column today, August 3rd, looks at court etiquette, in the second of two articles about courts:

The sign on the door leading into Porter Circuit Court Judge Mary Harper's courtroom reminds people of the rules, such as be quiet, dress appropriately, take off your hat, don't have a cellular phone and don't sleep.

The etiquette expected of guests to Harper's courtroom are somewhat standard in courtrooms. Today, in the second and final installment about court laws and etiquette, we outline how a courtroom visitor should look and behave.

Harper said the advent of courtroom shows on television -- in which outlandish behavior is encouraged to boost ratings -- has apparently given people the impression that anything goes in a courtroom. But such behavior is frowned upon in real court, she said.

"Folks need to not bring that to our courtroom," Harper said.

"This is a courtroom. It's not an alley..."

What that means is that people should wear clean, nice clothing. Harper requires people to wear clothing that covers their stomachs, backs, chests, upper arms and the legs above the knees. She's trying to avoid seeing a woman's breasts hanging out or a man's hairy armpits when he raises his arm to take the oath.

Once, a man came straight from work in filthy work clothes. Harper said the man, at the very least, should have kept a clean T-shirt in his car.

Harper also expects people to wear shoes. And she bans hats, but does allow older women to wear nice hats because that is considered proper for women of that age.

Porter Superior Court Judge David Chidester said he is a little more tolerant of inappropriate clothing. He is inclined to let the proceedings continue, especially if it's night court, but he would let the person know that more decorum needs to be shown next time.

"I'd say treat it (a court appearance) as if you're going to a job interview," Chidester said.

Chidester said it seems universal that judges don't like it when people respond to questions with "yeah," instead of the more formal "yes." Judges also frown upon people who are tardy, Chidester said.

Harper once had huge problems with cellular phones going off at the most inopportune times, but now cellular phones are banned in the entire courthouse.

Visitors to court should also know they are expected to refrain from eating or drinking, refrain from talking or making noise (people with crying babies will be asked to leave), avoid sleeping and avoid making out, Harper said.

"Life is getting casual and that's OK ... but respect the courtroom," Harper said.

Posted by Marcia Oddi on Monday, August 03, 2009
Posted to Indiana Courts | Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/3/09):

Next week's oral arguments before the Supreme Court (week of 8/10/09):

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 8/3/09):

Next week's oral arguments before the Court of Appeals (week of 8/10/09):

Next Thursday, August 13th

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, August 03, 2009
Posted to Upcoming Oral Arguments

Sunday, August 02, 2009

Courts - Indiana's statutory history and the dangers of the controversial Google book settlement

This editorial from the July 29th NY Times, headed "Google’s Big Plan for Books ," gives a good summary of the proposed Google book settlement:

While the Internet has transformed much of the information world, books have been a laggard. Google may change that. It has already scanned millions of out-of-print books, and it has reached an agreement with writers and publishers — which still requires judicial approval — to make them widely available.

Google’s book service raises monopoly and privacy concerns. It also holds great promise for increasing access to knowledge. Much of the information in the world’s books is not widely available. When Google began scanning out-of-print books held by major libraries its goal was to create an enormous database that Internet users could access from local libraries or homes.

Google fumbled, however, by scanning copyrighted works without the rights holders’ permission. Writers and publishers sued, and the parties have now reached a settlement. A federal court in New York has scheduled a hearing this fall on the settlement, which could be hotly contested.

Google’s effort could create new interest in millions of out-of-print books, which would be made available at no cost at public libraries. That means that a student at a community college or a freelance writer could access the same books as a Harvard professor.

At a time when publishing’s economic model is threatened, there is also an important financial upside for authors and publishers. Google would charge users for accessing copyrighted books from their own computers and sell online ads, and it would give writers and publishers 63 percent of the revenue. The settlement would create a books rights registry to distribute payments.

Google’s access to most books would not be exclusive since Microsoft or Joe’s Online Library could cut their own deal with authors and publishers and scan books as well. However, it is likely that as a result of the settlement, Google would be the only company with the right to “orphaned” works, books whose rights owners have not been located.

If that were to happen, Google could use monopoly power to price these books exorbitantly. The court reviewing the settlement and the Department of Justice should make sure adequate protections are built in.

The proposed settlement also raises privacy concerns. Google could collect data on what books people read and create a dossier of their political views and other information. Google should generally do a better job of showing how it will respect privacy, and this venture is no exception.

Google has been going through the nation's libraries, scanning books and putting them online. On a hunch one day, I looked to see if the Indiana session laws (Acts of Indiana) were among the books scanned. Sure enough, dozens of them have been.

This could cover an enormous gap in Indiana law - making freely available digitized copies of the Acts of Indiana going back to the beginning of statehood. In most case, only a few tattered versions of the original printed volumes remain. The ILB has a number of posts about how important it is to preserve this heritage. See, for instance, this entry from Feb. 7, 2007, about the Indiana Historical Bureau digitizing the Constitutional Debates. It ends:

What will be next? The ILB hopes, for starts, the Acts of Indiana from at least 1852 to the present, as well as the equivalent Journals of the Indiana House and Senate.
And this ILB entry from last week (July 31st) includes this quote:
“The history of law is disappearing; older versions of a law, amendments, show the thought process of a people and how they evolved,” observed ABA Legal Technology Research Center director Catherine Reach.
What do these Google-digitized volumes look like? Here, for instance, are the Laws of the State of Indiana, 1913, which Google digitized from the Stanford library. The volume may be read, and searched, online, or may be downloaded as a PDF document.

Many of the volumes of Indiana's laws from 1816 to 1851 have been digitized by Google. An immediate use for them would be as additions to the Historical Bureau's digital collection of Indiana's historical documents.

My interests here however are the laws that are of the basis of our current Indiana Code.
These trace back to the Revised Statutes of 1852. At my last count, Google has digitized about half the 1852-1922 volumes of Indiana session laws.

At least one, from 1883, is mislabled by Google as 1888. All of these are full downloadable versions, except for 1877, 1893, 1895, 1909, 1917 and 1918, which unaccountably currently are available only in "snippet version."

What is "snippet"? It means the book has been digitized by Google, but a reader can only access its content via the search box, which returns only "snippets" of the search word in the context of a couple lines. The volume may not be read online, or downloaded. One cannot even view the title pages.

Here is what Google says, and this will begin to explain my objections to what Google is proposing:

# Why can't I read an entire Library Project book online?

Google Book Search is designed to help you discover books, not read them from start to finish. We want to make it easier for users to find and buy books while protecting the rights of copyright holders. So when you find a book that is still under copyright, you'll see the Snippet View which, like a card catalog, shows you information about the book plus a few snippets – a few sentences of your search term in context. However, there are some books that are out of copyright which means we can display the full book in the Full Book View.

# How do you determine if a book is in the public domain and therefore out of copyright?

For users in the U.S., Google Book Search currently treats all books published after 1922 as protected by copyright, except for books to which no copyright was ever attached, such as books authored by the U.S. government. For users outside the U.S., we make determinations based on appropriate local law. As with all of our decisions related to the Google Book Search content, we're conservative in our reading of both copyright law and the known facts surrounding a particular book. If we don't know for sure, you'll see the Snippet View which, like a card catalog, shows you information about the book plus a few snippets – a few sentences of your search term in context.

[Source here]

The Acts of Indiana have never been copyrighted. The 1922 demarcation cited by Google should have no relevance here.

Yet Google has arbitrarily decided not to make most post-1922 volumes it has digitized, and even some pre-1922 volumes (e.g. 1877, 1893, 1895, 1909, 1917 and 1918), available only in snippet view. Leaving out the volumes not listed at all by Google when I did the research several weeks ago, post-1922 here is what we have:

Let me emphasize again, these are volumes of the Acts of Indiana that already have been digitized, but are not available to readers.

What will be impact of the Google book settlement on the Acts of Indiana?

Google has done all the decision-making here. Anyone who might object to the classification of one of these volumes as "snippet-view only" presumably would have the burden of proving the contrary. (And where would you even start? Who would you contact? I have seen nothing on this.)

Once (or if) the settlement is approved early this fall, Google's "rights" attach to these volumes. If I understand correctly, at that point any individual who wishes to access one of these volumes of Indiana's session laws not already in "full view" will have to pay for it, and for the money will obtain only individual rights, NOT the right to make it freely available to others.

Broader implications.
Finally, this analysis has been limited to volumes of Indiana session laws, but surely similar situations exist more broadly.

Posted by Marcia Oddi on Sunday, August 02, 2009
Posted to Courts in general | Indiana Courts | Indiana Law

Ind. Gov't. - State paying millions more to "correct" IBM problems in implementing welfare contract?

Updating a long list of earlier ILB entries, the AP's Ken Kusmer has a report this afternoon headed "State’s IBM deal grows 15% to $1.34B." From the lengthy story:

Indiana will spend nearly $180 million more than it initially planned to privatize and automate many of its welfare functions just two years into a closely watched 10-year deal that is one of the most lucrative contracts in state history.

The cost of the $1.16 billion contract Gov. Mitch Daniels signed in late 2006 has risen 15 percent, to $1.34 billion, under changes made to the agreement with a group led by Armonk, N.Y.-based IBM Corp.

The amendments, found in a contract review by The Associated Press, include one that gave the IBM group an additional $47.3 million — some of which will be used to correct problems with the project. Four top administration officials signed off on the additional money in April, shortly after Daniels told IBM officials they needed to fix a system that critics charge has erroneously canceled benefits even as the recession forces more people to seek food stamps, Medicaid and other government help.

Posted by Marcia Oddi on Sunday, August 02, 2009
Posted to Indiana Government

Ind. Law - Enthusiasm continues for use of golf carts in smaller communities

Updating this long list of ILB golf cart entries, and specifically this list from July 15th, here are some recent stories:

Posted by Marcia Oddi on Sunday, August 02, 2009
Posted to Indiana Law

Ind. Courts - Interview with Indiana Court of Appeals Judge Paul Mathias about JTAC

The Fort Wayne Journal Gazette, which published this story on July 13th, headed "Delays hurt plan to link state courts: Millions spent, progress scant, and legislators growing weary," today has an interview with Court of Appeals Judge Paul Mathias, a member of the Judicial Technology and Automation Committee, or JTAC, about the system. Here are the relevant Q&As:

The New Haven City Court just connected to the system. What will that mean for that court and people in New Haven?

The first thing that it means is easy access to court records. … It really also means a more efficient court system for the folks in New Haven where people don’t have to enter the information over and over again. Once it’s entered electronically by the arresting officer, it immediately becomes a court record that’s available for the general public to see and for the court to use.

The program is about 7 years old now, and many courts are still not connected. Why is that?

Good and complex things take time. Along the way, it’s important to realize that Odyssey is just one part of what JTAC has been doing. … The way that we electronically communicate to send current driver’s license information to the department of motor vehicles in and of itself saves tens of millions of dollars of federal highway funds each year … the resources that are available to courts and to prosecutors and to public defenders to help them do their jobs better, such as the best in electronic research, and training to use all the technology that we provide.

When do you think the Allen County court system will be connected?

Sometime in 2010. The issue here is that JTAC has limited resources to roll out these systems in counties, and as soon as we finish with our current rollout in Hamilton County, I think that JTAC will turn its attention and focus upon Allen County, which has a very significant court system in terms of size that is important to include in the statewide system.

For the ILB, the intereview raises additional questions.

Posted by Marcia Oddi on Sunday, August 02, 2009
Posted to Indiana Courts

Ind. Decisions - "Suspect, families await possible third murder trial"

Updating this ILB entry from July 28th, Charles Wilson of the AP has a story today on what's next. Some quotes:

The case already has cost county prosecutors nearly $3 million, and another trial could add millions more to the tab. Prosecutors could be hamstrung by rulings that have stripped the state of much of its case. And finding an impartial jury could require traveling to the opposite end of the state. Equally as taxing is the emotional toll the case has taken on two families, one convinced of Camm's innocence and the other equally certain of his guilt.

"It's a shame ... the family has to be dragged back through the hell they've been through for the past eight years," said Floyd County Prosecutor Keith Henderson, who handled Camm's second trial in 2006.

The prospect of a third trial arose in June after the Indiana Supreme Court ruled prosecutors inflamed the jury at the second trial by arguing without any evidence that Camm had molested his daughter. The state has asked the court to reconsider and allow the guilty verdict to stand, and a decision on that request could take months.

Legal experts say that's unlikely to happen. Joel Schumm, a professor at the Indiana University School of Law in Indianapolis who once clerked for the state high court, called a reversal "virtually impossible." Defense attorneys say they already are preparing for a third trial.

In striking down the first two convictions, state appeals courts have rejected two of the prosecutors' main arguments — that Camm killed his family at their home in Georgetown, Ind., 13 miles north of Louisville, Ky., so he could pursue extramarital affairs, and that he molested his daughter. Camm's family and attorneys have argued the three were slain by someone else while he played basketball in a church gymnasium with 11 other people.

"Based on the first and second reversals, the state is going to have no motive — none," said retired Indiana University law professor Henry Karlson, who helped write an appellate brief after Camm's first trial. * * *

The trials of Camm and Boney have cost county prosecutors alone $2.9 million. In 2007, the Indiana General Assembly passed a bill — motivated by the Camm case — requiring the state to help pay for criminal retrials ordered by state appellate courts. But that bill sets a limit of $50,000 in reimbursement per trial.

The prospect of more high-tech forensic testing, more expert witnesses and a possible change of venue to avoid widespread pretrial publicity in Southern Indiana could make a third trial the most expensive yet.

Posted by Marcia Oddi on Sunday, August 02, 2009
Posted to Ind. Sup.Ct. Decisions

Saturday, August 01, 2009

Courts - Two interesting SCOTUS stories

"Supreme Court Appoints Advocate to Argue Immigration Case" writes Tony Mauro for The National Law Journal. The story begins:

As we reported here last year, one of the little-known paths a lawyer can take to achieving the goal of arguing before the Supreme Court comes when a party decides it no longer wants to argue in favor of or against a lower court decision that is on appeal. When that happens, half the case falls away, so to speak. The Supreme Court, if it still wants an airing of the issue at stake, then appoints a lawyer -- almost always a former law clerk to a justice -- to advance the now-orphaned argument.

It happens rarely, once every year or so, and it happened again Thursday. The Court issued an order Thursday appointing Amanda Leiter, a professor at Catholic University's Columbus School of Law and former clerk to Justice John Paul Stevens, to argue in favor of the decision below in an immigration case, Kucana v. Holder. Ordinarily, since the U.S. government is the respondent, the solicitor general's office would be making that argument. But Solicitor General Elena Kagan in her brief in the case agreed with petitioner Agron Kucana, an Albanian facing deportation, that the 7th U.S. Circuit Court of Appeals was wrong. With no one supporting the 7th Circuit, the Court appointed Leiter.

"Supreme Court Asked to Take Certified Question for Only Fifth Time in Six-Plus Decades" writes Marcia Coyle for The National Law Journal. The story begins:
A federal appellate court recently focused attention on a rare method of obtaining review by the U.S. Supreme Court when it certified a question to the justices in the high-profile prosecution of James Ford Seale for the 1964 kidnapping-murder of two black teenagers.

The question that troubled the 5th U.S. Circuit Court of Appeals: Although Seale committed the crime in 1964, he was not prosecuted until 2007. Did the law require the prosecution for kidnapping within five years of the crime, or is there no time limit? A three-judge panel of the 5th Circuit ruled last September that because of changes in the law in 1972, the clock ran out on the government's prosecution of Seale.

Voting en banc, the 5th Circuit divided evenly on the question, and then voted 12-6 to certify it to the Supreme Court. The "certificate of question" was filed Thursday.

Posted by Marcia Oddi on Saturday, August 01, 2009
Posted to Courts in general

Ind. Courts - Verdict in on "He was trying to put her over that railing"

Updating this ILB entry from July 31st, an AP story reports:

LAFAYETTE, Ind. — A man who witnesses said tried to push a lawyer over a fourth-floor rotunda railing inside the Tippecanoe County Courthouse has been convicted of criminal confinement resulting in bodily injury.

A jury reached the verdict Friday against 51-year-old Russell A. Timmons. The jury acquitted him of attempted murder and attempted aggravated battery charges in the attack on Linda Polley of Fort Wayne. * * *

Authorities say the attack happened June 22, 2007, soon after a judge ordered the Lafayette-area man’s wife to pay more than $4,000 in Polley’s attorney fees in a court case over a traffic crash.

Posted by Marcia Oddi on Saturday, August 01, 2009
Posted to Ind. Trial Ct. Decisions

Law - The New Director of the Ivy League has Indiana connections

From this story by Katie Thomas, dated July 31, in the NY Times:

PRINCETON — Like many leaders of athletic conferences, Robin Harris of the Ivy League is looking for new ways to promote athletes and their teams, as well as raise money in an economic recession. Harris, who took over as executive director on July 1, says she plans to redesign the Web site and look for new television partners to broadcast league championships.

But at the Ivy League, a conference whose very name is more closely associated with academic excellence than athletic prowess, any change must strike a balance between promoting sports and maintaining the league’s scholarly reputation. Harris must find common ground among athletic directors, coaches and university presidents, who do not always agree on how to achieve that balance. * * *

Although she is new to her job, Harris is familiar with the role of mediator. “She has a lot of experience in working with contrary views and trying to find the most appropriate solutions,” said David Berst, the vice president for Division I at the National Collegiate Athletic Association, where Harris worked for nine years in a variety of roles. “She’s a problem solver.”

Harris, 44, said she was beginning the job at a time of relative stability. But a few issues are simmering — among them, whether wealthier institutions are gaining a competitive advantage by offering more financial aid, and if postseason play should be expanded in basketball and added in football.

Harris, who holds undergraduate and law degrees from Duke, has spent most of her career working in college athletics. She began working for the N.C.A.A. in 1993 and held a number of positions, including director of the Committee on Infractions and associate chief of staff for Division I.

In 2002, she joined the Indianapolis law firm Ice Miller. She advised universities on N.C.A.A. matters and defended them in infractions cases. She represented Indiana University in the case involving the former men’s basketball coach Kelvin Sampson, who was accused of committing several major N.C.A.A. violations during his time at the university.

She replaces Jeff Orleans, who retired. He became the first full-time director of the Ivy League in 1984.

Posted by Marcia Oddi on Saturday, August 01, 2009
Posted to General Law Related

Ind. Gov't. - "FLOYD COUNTY: Officials look to protect important documents"

A story today in the New Albany News & Tribune by Chris Morris:

The recent fire at the Madison courthouse not only destroyed portions of the historic building, but also damaged important documents inside.

What if the same thing happened at the City-County Building in New Albany?

Recently, a group of Floyd County leaders met with homeland security officials to discuss that possibility. They not only looked at photos from what happened following the Madison fire, but discussed ways to protect precious documents housed in the City-County Building.

“It makes you look at what you have and what if it happened here,” said Floyd County Clerk Linda Moeller. “You have to make sure you back up your material and store it off-site.”

Which is what the county has been doing. Several court records and other documents have been removed or copied from the City-County Building and taken to “Iron Mountain” — an underground storage facility in Louisville. The Mountain actually sits below the Louisville Zoo.

“Our basement storage was awful,” Moeller said. “We didn’t know what we had. So we gutted it.”

Moeller said jail trustees, her employees and others worked to clean the area out and put in new shelving. Some items had to be destroyed.

“It’s really nice down there now,” she said. “Everyone in the office goes down there and works. They know their files and their court.”

Posted by Marcia Oddi on Saturday, August 01, 2009
Posted to Indiana Government

Ind. Courts -More on: Verdict in road-rage shooting trial in Clark County

Updating yesterday's entry, here is today's expanded story by Matt Thacker of the Jeffersonville News & Tribune. Some quotes:

Prosecutor Steve Stewart said he had anticipated a guilty verdict from the outset.

“Had this verdict not been a guilty verdict, I would have been very worried about what the future would hold for this community,” Stewart said. * * *

Stewart asked that the jury be the conscience of the community.

“This is not the Wild, Wild West, but even if this was Dodge City, you wouldn’t be able to walk away claiming self-defense after shooting an unarmed man,” Stewart said as he began his closing statements to the jury Friday morning.

Stewart said the jury would have to decide if Parrish truly believed it was necessary to use deadly force and if a reasonable person would believe the amount of force she used was reasonable. He also argued that Parrish had many other options, such as driving away to avoid Mosier or locking her doors.

"Self-defense rejected in shooting of cyclist" is the headline to Harold J. Adams' story today in the Louisville Courier Journal. Some quotes:
“I was scared for my life,” Parrish told Jeffersonville police in a taped interview that was heard during the trial, as was her grand jury testimony.
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Witnesses called by Clark County Prosecutor Steve Stewart disagreed about portions of both Parrish's and Mosier's accounts.

In closing arguments Friday, Stewart told the jury of four men and eight women, “I'm not sure either one is telling the complete truth of what happened. … I think it's very clear that both of them were operating their vehicles recklessly.”

But Stewart said Parrish's first reaction to seeing Mosier get off his bike was to pull her handgun, for which she had a permit, from under the seat.

“This is not the wild, wild West,” Stewart said. “But even if it was Dodge City, the defendant would not be able to walk away claiming self-defense.”

Stewart noted that witnesses testified that Mosier raised his hands, palms up, and took a step back before he was shot — contradicting Parrish's claim that he raised his hand to punch her.

Brian Butler, Parrish's lawyer, argued that Mosier repeatedly cut in front of Parrish along 10th Street and that she was justified in being afraid when he approached.

“We don't have to wait for someone to drag us out of our car and start beating us … before we can defend ourselves,” he told the jury.

Butler also argued that Parrish's fear was based in part on the fact that she is black and saw “an angry man who happens to be white” coming at her.

“We're all kidding ourselves if we don't think that that created extra fear in her mind,” he said.

After the verdicts, Butler said that he is convinced that his client “believed that she had to do what she did.”

On July 1, Parrish's 15-year-old son pleaded guilty to misdemeanor battery for getting out of the SUV and kicking Mosier after he was shot. Clark Superior Court Judge Vicki Carmichael imposed a six-month suspended sentence.

Posted by Marcia Oddi on Saturday, August 01, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Ruling backs Indiana University South Bend in lawsuit"

The COA decision July 30th (ILB summary here) in the case of Trustees of Indiana University v. H. Daniel Cohen is the subject of a story today by Margaret Fosmoe in the South Bend Tribune. Some quotes:

The Indiana Court of Appeals has ruled in favor of Indiana University in a case involving former Indiana University South Bend Chancellor H. Daniel Cohen.

In a ruling issued Thursday, the appeals court reversed a ruling by the trial court that had refused summary judgment in favor of IU and had concluded a provision in the agreement between IU and Cohen was ambiguous.

The appeals court ruled that IU was on valid legal ground in firing Cohen for violations of IU's code of ethics for faculty, and that IU did not breach an agreement with Cohen. * * *

Cohen was IUSB's chancellor from 1987 until 1995, when he was forced to step down amid sexual harassment allegations. He later lost a civil lawsuit filed by a former female employee who claimed he had sexually harassed her.

Cohen remained on the IUSB faculty as a tenured physics professor, entering into an agreement with IU that stated "any future act of sexual harassment or retaliation by Dr. Cohen that occurs from the date of this agreement forth in the course of Dr. Cohen's employment will be considered serious personal misconduct and will result in immediate steps to dismiss Dr. Cohen from the faculty."

In 2000, 11 female students filed written complaints about Cohen, claiming he was verbally abusive and discriminatory in the classroom. One of those students reported that Cohen discriminated against her based on gender, religion, sexual harassment and retaliation.

The university investigated the allegations and dismissed Cohen in 2001 for violating school policy on sexual harassment.

Elkhart County Judge Evan S. Roberts had denied summary judgment for IU, agreeing with Cohen that a jury should decide whether language in the agreement that allowed him to resume work as a professor after a sabbatical — an agreement IU later cited as the basis for his firing — was ambiguous. The agreement allowed him to continue teaching "with tenure with the rights and responsibilities attendant to that position."

But that language clearly required Cohen to follow all rules against sexual harassment contained in the school's constitutions and faculty handbooks, and Cohen even testified in depositions that he believed this was the case, the appeals court ruled.

Posted by Marcia Oddi on Saturday, August 01, 2009
Posted to Ind. App.Ct. Decisions