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Saturday, October 31, 2009

Ind. Law - Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney

The Indianapolis Star is reporting that Indianapolis attorney and state representative Ed DeLaney was attacked in Carmel by "his prospective client, Augustus J. Mendenhall, 38." More from the story:

[Carmel police say that Mendenhall] punched DeLaney and wielded a gun. Mendenhall is being held in the Hamilton County Jail and faces several felony charges, including attempted murder.

Ann DeLaney, Edward DeLaney's wife, said her husband had never met his attacker before today. He thought Mendenhall was interested in buying land in the area and wanted legal advice, she said. * * *

Edward DeLaney suffered several head injuries, Ann DeLaney said. He's bruised and swollen and has broken bones above and below one eye. Doctors are doing tests to determine whether his ribs are broken. He's in good spirits and has been joking with the medical staff, she said.

"Under the circumstances," she said, "he's been doing very well."

A check of the net shows an Augustus J. Mendenhall on the list of those successful on the July 2008 Indiana Bar Examination. Here is a Linkedin page for the same new attorney, Augustus J. Mendenhall who, according to the Roll of Attorneys, lives in Plainfield and was admitted to the Indiana bar on Oct. 17, 2008.

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Indiana Law

Ind. Courts - "St. Joseph County officials are saying little about Nemeth case"

Erin Blasko has this report today in the South Bend Tribune. (For background, see this ILB entry from Oct. 29th.) Some quotes:

County officials are saying very little about an order issued earlier this week in a legal battle between the county and Probate Judge Peter Nemeth.

The order, handed down Wednesday, rules against the county and requires it to release more than $300,000 to Nemeth to pay raises and make physical improvements at the Juvenile Justice Center. It also requires county commissioners to pay Nemeth's legal fees, totaling more than $18,000.

Officials did not comment on the order Wednesday because some had not yet seen it, and others were unavailable. A Tribune reporter then supplied the order to commissioners and to Deputy Auditor Cindy Bodle on Thursday. [The ILB has not obtained a copy.] * * *

The order stems from a judicial mandate issued by Nemeth earlier this year directing the County Council and commissioners to appropriate $60,208 to him to provide raises to eight JJC employees and $295,950.98 to renovate the JJC facility.

State judicial rules allow judges to issue judicial mandates requiring the release of funds if it is believed those funds are necessary to administer justice.

The appropriations were approved by the council and commissioners in late 2008, but commissioners never signed the requisition forms. Kovach refused, and Mark Dobson and Steve Ross were preparing to leave office.

The money for renovations was to come from an unspent JJC personnel fund and the raises from juvenile probation user fees.

As a result of the commissioners' inaction, money in the unspent personnel fund reverted to the general fund to balance the 2009 budget.

In ruling against the county, William Satterlee, a Valparaiso attorney appointed special judge in the case, argued the mandated expenditures would not financially burden the county because the $295,950.98 that reverted back to the county became unappropriated revenue in the 2009 budget.

He also said the county failed to prove the expenditures were unnecessary and/or extravagant.

Asked Wednesday about the order, Nemeth said it proved he was on the side of justice in the case.

"Well, I'm certainly pleased the rule of law prevailed," Nemeth said. "I think the rule of law was on our side from the beginning."

Nemeth said it was unfortunate the county chose to oppose the mandate, calling the decision a "waste of taxpayer money."

If the county accepts Satterlee's order, it will take effect within 30 days, according to Jim Masters, Nemeth's attorney.

[County attorney Jim] Groves, however, has indicated the county has no such intention, and that it plans to allow the case to proceed to the state Supreme Court for review.

If the Supreme Court upholds Satterlee's ruling, the county would likely cover expenditures mandated in the order, Bodle said, by first looking to tap unspent JJC funds.

If the JJC has no unspent funds, or if Nemeth balks at their use, the county would then be forced to either make cuts in other departments, Bodle said, or tap its Rainy Day and County Economic Development Income Tax, or CEDIT, funds.

The latter, she said, would threaten the sustainability of those funds, which represent a sort of financial safety net for the county. * * *

For his part, Nemeth said he hoped he would not have to get into another "legal scrabble" with the county concerning the execution of the order.

The ILB believes: (1) this was the first mandate action pursued under the revised Supreme Court rule re mandates; and (2) the possibility of another mandate has been raised at this year's St. Joe budget meetings.

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Indiana Courts

Ind. Gov't. - Following up on "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

This ILB entry from Sept. 5th quoted stories from the WSJ and the LA Times titled, respectively, "Lights Out at the Penitentiary: Strapped States are Shutting Prisons," and "Cash-strapped states revise laws to get inmates out: Mandatory sentencing laws are relaxed, parole is accelerated, and time off for good behavior is increased as states scramble to save money."

Contrast those stories with an Indianapolis Star story titled "Killer's early release in pastor's 1993 slaying sparks outrage" quoted in this Sept. 7th ILB entry, and a NWI Times story headed "Ind. loophole lets some life sentences end early," quoted in this Oct. 10th ILB entry.

Yesterday's Fort Wayne Journal Gazette published this editorial titled "When prisons are full":

Tough-on-crime initiatives often run into the roadblock of financial realities. Such is the case in Indiana’s prison system, which has effectively reached capacity for higher-security adult men yet still takes in 1,000 or more new prisoners each year, as Niki Kelly’s Sunday story explained.

Yet Indiana lawmakers denied proposals for two prison expansions this year, and for good reason. Not only does prison space cost money, but it also requires more staff, adding yearly expenses. And society’s experience with prisons has been if you build it, they will come: With less incentive to seek alternatives, the judicial system will fill prisons.

Many Hoosiers like the idea of putting criminals in prison and forcing them to serve entire sentences, but they hedge at the monumental cost.

In addition, prisons have bleak records in reforming inmates.

So lawmakers again must examine tough laws that put Hoosiers in prison for drug possession and other non-violent crimes. They must again examine ways to expand cost-effective programs such as drug and re-entry courts, which judge criminals but also help them with job and life skills to reduce their chances of re-offending.

They must continue to seek ways to make home detention and work-release programs available and secure.

Prisons are necessary to protect society from the most violent criminals, but alternatives for non-violent criminals are most cost-effective and can often achieve reformation when prison cannot.

Here is the lengthy Oct. 25th story by Niki Kelly referenced in the editorial. The headline: "State deals with rise in inmates, violent acts." Some quotes, from the beginning and end of the story:
INDIANAPOLIS – Every month, about 100 new prisoners stream into the Indiana Department of Correction, whether there is room for them or not.

The agency hasn’t received funding for new beds or additional guards in years – a reality that has pushed inmates, correctional officers and the public into potential danger.

Violence is on the rise in the prison system – an estimated 43 percent increase in inmate assaults and a projected 6 percent increase in staff assaults.

DOC Commissioner Edwin Buss said the situation is like waiting for a disaster.

"Every murderer or armed robber sentenced today has no bed waiting for them," he said. "It hasn’t had a traumatic effect yet, but I liken prison overcrowding to playing Russian roulette.

"Every year that we add more than 1,000 offenders is like putting a bullet in the chamber. It’s going to catch up to us sooner or later."

Indiana is housing 27,300 inmates – a number that has been growing between 1,000 and 1,200 every year. * * *

Gone are the days when Indiana was housing out-of-state prisoners because of a surplus of beds. Now, it has no open maximum-security or high-medium-security beds for adult male offenders, Buss said.

That means violent offenders are being bunked in lower-security dormitory spaces and bunks are being moved closer to fit more in, creating a potential powder keg. * * *

So what can be done about crowding aside from increasing prison capacity?

Buss said 6,000 offenders come in every year with sentences of six months or less, many for drug possession, fraud, forgery and other nonviolent offenses.

He encourages lawmakers to re-evaluate sentencing options for these crimes.

He said a few states tried to relegate offenders with sentences of less than a year to county jails. But jails didn’t have the necessary beds, either, prompting judges to retaliate by issuing sentences of one year and one day.

"If we had buckets of money, it wouldn’t be a problem, but we don’t have buckets," said Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee.

Steele is filing a bill for the 2010 legislative session which would allow non-violent offenders who have served at least half their sentence to post a bond to be released from prison early.

The percentage of the sentence that must be served is flexible, he said. But an important part of the program would be having a family member also sign the bond and take a role in the offender’s behavior on release.

"It’s like early parole," Steele said. "But with a financial stake."

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Indiana Government

Courts - Ky AG advises the Corrections Department not to follow a recent state Supreme Court ruling as he appeals it to SCOTUS [But see corrections below]

"State to appeal ruling limiting sex-offender law" is the headline to a story dated Oct. 29th in the Louisville Courier Journal. Andrew Wolfson reports:

The Kentucky attorney general’s office has asked the state Supreme Court to delay enforcement of its Oct. 1 ruling throwing out part of the state’s sex-offender statute until the U.S. Supreme Court hears the case.

The attorney general’s office filed a motion Oct. 21 asking the state high court to stay its ruling that the law banning sex offenders from living near schools, day cares and playgrounds cannot be applied to those convicted before the statute was enacted in 2006.

The court ruled 5-2 that the statute was improperly imposed on people convicted before it went into effect. The U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law's enactment.

Lisa Lamb, a spokeswoman for the state Corrections Department, said on the advice of its general counsel, the department has told its probation and parole officers not to follow the ruling until the state Supreme Court decides whether it will be stayed. * * *

The attorney general’s office has until Dec. 30 to file a petition with the U.S. Supreme Court to hear the case. No petition has been filed.

The U.S. Supreme Court rejects most cases, but the issue of whether sex-offender laws can be applied retroactively has surfaced in many states.

Under the Kentucky Supreme Court’s Oct. 1 ruling, sex offenders will still be required to register, but the residency restrictions enacted in 2006 cannot be applied to offenders convicted before that date.

Today the LCJ has an editorial headed "Ignoring the Court" [but see 11/2/09 correction below]:
Just because you can do something doesn't mean you should. Attorney General Jack Conway needs to remember the wisdom of that old admonition as he and his counsel advise the Corrections Department not to follow a recent state Supreme Court ruling as Mr. Conway appeals it.

On Oct. 1, the state's high court, in a 5-2 decision, said the law banning sex offenders from living close to schools, day care centers and playgrounds could not apply to those convicted before 2006, the year the law was enacted. (Earlier this year, the Indiana Supreme Court issued the same ruling for its state law.) Mr. Conway was not happy with the decision, which he said raised “serious concerns about the impact on public safety.” He indicated that he might appeal the ruling to the U.S. Supreme Court.

On Oct. 21, Mr. Conway's office filed a motion asking the state Supreme Court to suspend its ruling. The convicted sex offender who successfully challenged the state law has until Nov. 3 to oppose the Attorney General's motion to suspend the higher court's ruling, and Mr. Conway has until Dec. 30 to ask the U.S. Supreme Court to hear his case. In the meantime, the state Supreme Court hasn't issued an opinion as to the stay, and Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's finding.

“Our position is that the Supreme Court decision is not final,” Lisa Lamb, spokeswoman for the state Department of Corrections, told the Lexington Herald-Leader . “We believe the former law is still in effect.”

That may be what they believe — and they provide copies of rules of procedure to back up their position, per the department's legal counsel. But the attorney general and his operatives ought not to be in the business of ignoring Supreme Court rulings they don't agree with, no matter how public-minded their intentions.

ILB - In some ways this appears to parallel the Indiana dispute over the COA Voter ID ruling negating the Indiana law and whether it applies to the Nov. 3 election, or whether it must be "certified" first. Thoughts?

[Correction posted 11/2/09] The ILB has received this note from the Office of the Kentucky General:

Dear Marcia,

The headline of your article re: Kentucky Attorney General Jack Conway’s decision to appeal the state Supreme Court’s recent ruling regarding sex offender residency restrictions is incorrect. If you read the article you posted, the Department of Corrections is relying on advice from its own General Counsel, not the Attorney General, in advising its probation and parole officers in how to enforce the law.

Attorney General Conway has not advised the department on this issue, nor has he been requested to do so. The Department of Corrections is not under the supervision of General Conway, it is under supervision of the Governor of Kentucky.

Please correct this headline as soon as possible. Thank you.



Allison Gardner Martin
Communications Director
Kentucky Attorney General Jack Conway
700 Capital Avenue
Frankfort, KY 40601

In addition, the LCJ has now retracted the editorial quoted above - see this 11/2/09 ILB entry.

[Even more] Here is a link to the 29-page, 5-2 opinion itself - Comm. of Kentucky v. Michael Baker (Oct. 1, 2009).

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Courts in general

Ind. Courts - More on: Notre Dame sues former employee over tip

Updating this Oct. 15th ILB entry, WSBT South Bend has an Oct. 30th story by Alicia Gallegos reporting:

The University of Notre Dame and a former catering employee who accepted a mistaken tip of nearly $30,000 have settled their legal dispute.

In court documents filed Wednesday, Sara Gaspar has agreed to pay back Notre Dame $16,859.79, about half of the original sum placed in her bank account.

The debt will be replenished slowly through payments of $50 each month, meaning that the entire debt likely would be repaid in about 28 years.

The case against Gaspar revolved around a mistaken gratuity that was placed in Gaspar’s bank account while she was a Notre Dame employee.

On April 17, the former catering employee was to be paid a gratuity of $29.87, but because of an error, court documents state, a total of $29,387 was deposited into her account.

Instead of returning the money, the recent lawsuit filed by the university claimed that Gaspar spent the extra cash on bills and a new car. * * *

As collateral to secure the agreement, Gaspar put up the car, a 2002 Volkswagen Jetta, she purchased earlier this year with cash from the large gratuity payment.

We hope she can strike a similar deal with the IRS.

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Indiana Courts

Ind. Courts - "Hammond Mayor irritates judge, talks of murder case: Court had banned discussion about Hammond homicide"

Ruth Ann Krause reports today in the Gary Post Tribune:

Hammond Mayor Thomas McDermott Jr., was on the radio Thursday and Friday commenting on the case of two Hammond teens charged with felony murder after a representative of the Lake County Prosecutor's Office informed him of a gag order in the case.

The subject came up at a formal appearance for Gregory Brooks Jr., 18, and Reo Jon'Ta Thompson, 17, who have pleaded not guilty to four counts of murder in perpetration of a burglary, two counts of murder in perpetration of a robbery and nine other felony charges, including confinement and auto theft.

The charges were filed in the deaths of Milton and Ruby McClendon, whose bodies were found Oct. 19 in Calumet City, Ill., in Cook County Forest Preserve.

Chief Public Defender David Schneider informed Lake Superior Magistrate Kathleen Sullivan that McDermott was on the radio Thursday afternoon and Friday morning discussing the case.

Lake Superior Court Judge Clarence Murray issued the gag order barring "parties, counsel, law enforcement officials and court personnel" from publicly discussing the case.

Schneider said McDermott was on WBBM radio, where he made a statement that he understood there is a moratorium on the death penalty in Illinois, but not in Indiana. Friday morning, about 30 minutes before the teens were in court for their formal appearance, Schneider said McDermott was on WJOB radio wondering aloud whether the gag order applied to him as mayor. McDermott is a lawyer.

Trial Supervisor Mary Ryan said the order was faxed to McDermott's office.

A clearly irritated Sullivan said the order issued Wednesday was to ensure that the jury pool would not be tainted by comments made about the crimes or investigation that aren't contained in public records.

Lake County Prosecutor Bernard Carter said he personally would call McDermott and speak to him about the order.

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Indiana Courts

Ind. Courts - More on "School sued for punishing teens over MySpace pix"

Updating yesterday's ILB entry, here is a story from Wed. Oct. 28th that the ILB missed, reported by Rebecca S. Green of the Fort Wayne Journal Gazette. Some quotes:

The American Civil Liberties Union has sued Smith-Green Community School Corp. and a principal in federal court on behalf of two girls punished for summer postings on MySpace.

Filed Friday in U.S. District Court in Fort Wayne, the lawsuit claims the two girls, both sophomore fall-sport athletes, were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet.

The lawsuit names the district and Churubusco High School Principal Austin Couch, both individually and in his official capacity, and alleges that Couch and the district violated the girls’ First Amendment rights by how the situation was handled.

The ACLU seeks to have the case handled as a class-action on behalf of all students participating in, or who may participate, in extracurricular activities at Smith-Green Community Schools, according to court documents.

According to the lawsuit, the two girls, identified only by initials, participated in a sleepover this summer with friends from Churubusco High School.

During the sleepover, the girls took pictures of themselves “pretending to kiss or lick a large multi-colored novelty phallus shaped lollipop” as well as pictures of themselves in lingerie with dollar bills tucked in their clothing, according to court documents.

The girls posted the pictures on their MySpace pages, visible only to their online friends.

“They intended this to be humorous and all the participants considered it to be so,” the lawsuit said. “There was nothing in the pictures that identified the participants as attending Churubusco High School and there was no reference whatsoever in the pictures to (the school).”

But an unknown person with access to the photos downloaded them, printed copies and gave them to school workers including Couch, who promptly suspended the two girls from all athletic and extracurricular involvement for the year, according to court documents.

The school’s student handbook says the principal may bar students from participating in athletics if their conduct “in or out of school reflects discredit upon Churubusco High School … or creates a disruptive influence on the discipline, good order, moral or educational environment,” according to the lawsuit. * * *

“The forced counseling was humiliating to the plaintiffs and being forced to appear before the coaches to apologize for their intended humorous photographs … was profoundly embarrassing,” according to the lawsuit.

The plaintiffs seek a jury trial.

“The punishment … for expressive activity taken place outside of the (schools) which activity did not disrupt in any way educational activity violated the First Amendment,” according to court documents.

And because the policy exists, it is unconstitutional, the lawsuit alleges.

On behalf of the girls, the ACLU is asking a judge to prevent the school system from continuing to punish the two students and from interpreting the conduct policy to allow such punishment, as well as expunging all references to the matter from their records, according to court documents.

Today's Journal-Gazette has this editorial headed "School space vs. MySpace." Some quotes [emphasis by ILB]:
The promises and perils of social networking sites like Facebook and MySpace are challenging schools struggling to respond to new technology. Some are responding badly.

Churubusco High School is a prime example. Administrators there interfered in what was not a school matter and now find themselves as defendants in a lawsuit filed by the American Civil Liberties Union. * * *

The case is a classic example of a school district overreacting to an incident involving students, whose personal judgment is often limited by their maturity. The girls, no doubt, now realize the danger of posting anything online that they don’t want distributed.

But the punishment they were forced to face – for an incident in the summer, not on school property and not involving the school in any way – was out of line. Nancy Baer, an Albion parent, said she has no connection to the school district but was angered by the account of the punishment.

“I’m appalled that someone would even think up something as twisted as having these young girls go in front of all of these male coaches,” she said. “If it were reversed, and it was boys involved, would he have gotten a line of female faculty members together for them to apologize to? What do they think they’ve accomplished?”

The ACLU is asking a judge to prohibit the Smith-Green schools from continuing to punish the two students and from interpreting the conduct policy to allow such punishment, as well as expunging all references to the matter from their records, according to court documents.

Regardless of the case’s outcome, the school board should address discipline procedures at the school, and board members and administrators elsewhere should weigh their own procedures to ensure they don’t respond in the same unacceptable manner.

Here is a copy of the 9-page complaint in T.V. and M.K. v. Smith-Greem Community School Corp. The claim for relief:
The punishment of plaintiffs for expressive activity taken place outside of the Smith-Green Community Schools which activity did not disrupt in any way educational activity violated the First Amendment and to the extent that defendants have a policy allowing such punishment the policy is unconstitutional as violating the First Amendment as applied to such activity which is not disruptive.

Posted by Marcia Oddi on Saturday, October 31, 2009
Posted to Indiana Courts

Friday, October 30, 2009

Ind. Decisions - Transfer granted in BMV / Social Security Administration records case

The ILB has received no official notice, but a reader sent this note late this afternoon:

FYI, it's reported on the electronic docket that the Supreme Court yesterday granted transfer in Leone v. Comm'r, BMV, 906 N.E.2d 172 (Ct.App. 5/15/09), the 2-1 decision holding that the presence of an unresolved discrepancy between BMV and SSA records constituted a rational basis for suspending or revoking a driver's license or ID card, which are now needed to vote under the Voter ID Law.
The ILB has confirmed this via the clerk's docket - 49 S 02 - 0910 - CV - 00505.

Here is the ILB's May 15th entry discussing the Court of Appeals opinion in Lyn Leone, Omari Vaden, et al v. Commissioner, Indiana Bureau of Motor Vehicles, et al. The summary written in advance of the COA's oral argument read:

The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration.

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - What happens when a case is settled after transfer is granted? [Updated]

The answer is in this Supreme Court "Order Dismissing Appeal and Vacating Oral Argument Setting," file-stamped Oct. 28, 2009. The case is Bunn v. INDOT. From the Order:

By order dated September 24,2009, the Court transferred jurisdiction of this appeal from the Court of Appeals to this Court, and set November 24, 2009 as the date for oral argument. The parties now file a "Notice Of Settlement And Stipulation For Dismissal Of Appeal," reporting they have reached a settlement and requesting the appeal be dismissed.

Being duly advised, the Court GRANTS the request, DISMISSES this appeal, and VACATES the oral argument setting. The Court of Appeals' not-for-publication Memorandum Decision in Bunn v. Indiana Dep't of Transp., Cause No. 50A03-0810-CV-504 (Ind. Ct. App. 2009), was vacated by the Court's earlier grant of transfer and shall be held for naught. See Appellate Rule 58(A). This appeal is at an end.

[Link added by ILB]

(As this case involved a NFP decision of the COA, it had no precedential value anyway under Rule 65(E).)

[Updated 10/31/09] A knowledgeable reader sends this note:

Thought you may be interested in knowing that, while a settlement after transfer normally will result in the appeal being dismissed, there have been several instances where the Supreme Court has not granted a party's motion to dismiss an appeal after transfer has been granted.

Whereas the Court of Appeals almost always will allow a party to dismiss an appeal after settlement (unless the decision has already been written and the opinion is ready to be handed down), the Supreme Court has more often kept a case active even after settlement because the issues involved are of enough concern that direction from the Supreme Court is warranted, even though the action is basically mooted as between the parties (especially if the legal issue is important, but is one that doesn't often present itself on appeal).

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "School sued for punishing teens over MySpace pix"

An AP story by Charles Wilson is already receiving national attention. A few quotes from the lengthy story:

INDIANAPOLIS — Two sophomore girls have sued their school district after they were punished for posting sexually suggestive photos on MySpace during their summer vacation.

The American Civil Liberties Union, in a federal lawsuit filed last week on behalf of the girls, argues that Churubusco High School violated the girls' free speech rights when it banned them from extracurricular activities for a joke that didn't involve the school. They say the district humiliated the girls by requiring them to apologize to an all-male coaches' board and undergo counseling. * * *

The lawsuit, filed in U.S. District Court in Fort Wayne, names [Churubusco Principal Austin] Couch, the high school and the district as defendants and seeks unspecified damages. No hearing has been scheduled. * * *

The ACLU argues that the Indiana case is different. They say the photos were a joke intended to be shared only with friends. It wants the school district to expunge all references to the incident from school records and seeks to bar the school from taking similar action in the future.

"The problem is there's a line drawn. And the line is drawn as things that disrupt the school. And outside of that, the school has no say," Falk said.

"Imagine if everything teens texted back and forth to friends became fodder for school discipline."

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Ezra Bradshaw v. Gary Chandler and Affirmative Insurance Company, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

A provision of the automobile insurance policy at issue here precludes any recovery under its uninsured motorist provisions unless the proceeding commences within two years after the accident. Injured driver Bradshaw first sued driver Chandler and Bradshaw’s insurance company mentioning only his policy’s underinsured motorist provisions. More than two years after the accident, Bradshaw learned that Chandler was excluded from the insurance policy on the vehicle he had been driving. Bradshaw amended his complaint to include his policy’s uninsured motorist coverage provisions. The parties ask us to determine whether bringing suit against Chandler and Bradshaw’s insurance company under the underinsured motorist section of the policy met the policy’s requirements. We hold that it did.

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "NCAA clarifies its recruiting rules: Common practices in recruiting are no longer allowed"

Jeff Rabjohns reports today in the Indianapolis Star, in a story that begins:

Louisville is recruiting Pike High School basketball star Marquis Teague. It likely helped the Cardinals' cause that they hired a Pike assistant coach.

Under a set of guidelines approved Thursday, that's one of the practices the NCAA hopes to eliminate.

Intent on stopping college basketball coaches from buying influence over and access to recruits, either by hiring people close to the player or indirectly channeling money to the recruit, university presidents clarified what is not allowed under NCAA rules.

The NCAA Division I Board took a direct approach Thursday, addressing specific mechanisms used to channel money to recruits and recruits' handlers.

Among the actions now against the rules:

  • Paying someone associated with a recruit to work a camp or clinic;

  • Allowing someone associated with a recruit to volunteer at a camp or clinic;

  • Paying a consulting fee to someone associated with a recruit;

  • Paying excessive fees to "recruiting service" material of little value;

  • Donating to a nonprofit that runs a non-scholastic basketball program;

  • Calling a 1-900 service that connects to a recruit or anyone associated with a recruit.
Other proposals include prohibiting hiring someone associated with a recruit to a non-coaching position.

"The board gave unanimous support to reforms intended to eliminate the funneling of money to gain access to recruits," said Clemson president Jim Barker, chairman of the board. * * *

A number of ways exist for college coaches to funnel money to players, but three of the most common are: Hire a summer coach to speak at a camp or clinic and pay more than the usual fee; align yourself with an agent who will pay the player and his family, thus insulating the college coach from wrongdoing; and having boosters "donate" to summer programs, many of which have not-for-profit or nonprofit status.

Thursday's measures make two of those three against the rules.

"It re-regulates the recruiting environment in light of some of the changed behavior and conduct and provides a bright line with respect to the acts and conduct which are now prohibited," Big Ten commissioner Jim Delany said. "I'm not sure we've had the clarity we now have."

In addition to penalties for coaches, recruits who violate these rules can be banned from playing at that school.

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to General Law Related

Ind. Courts - Address confidentiality program for victims of domestic violence who have protective orders

Eric Bradner reports in the Evansville Courier & Press:

Indiana Attorney General Greg Zoeller said Friday he believes a state program that protects victims of domestic violence, stalking and sexual assault by keeping their addresses secret is underutilized.

The address confidentiality program is intended to protect those who have already obtained protective orders against their abusers and fear for their families’ safety by having their mail sent to a secure substitute address and then forwarded to them by the state.

Currently 150 Hoosiers are enrolled in the program. But 50,000 more people have court-issued protective orders in place in Indiana, according to the attorney general's office, though it was not immediately clear how many of those were domestic violence-related.

Zoeller said that leads him to believe even more people might be interested in having their locations guarded.

The program “can offer some piece of mind for victims that their new home is a safer place,” he said.

Zoeller said his office is working with county prosecutors and victims’ advocates in hopes of boosting awareness of the program.

Laura Berry, the executive director of the Indiana Coalition Against Domestic Violence, said those who are separating from an abusive relationship face a particularly high risk and could find the program helpful.

It could also aid in lowering the number of domestic violence deaths in Indiana. In the last six years, 411 Hoosiers have been killed in domestic violence-related incidents, including 51 in the period from July 1, 2008 to June 30, 2009, Berry said.

“Domestic violence shelters and nonresidential programs are ideally situated to assist victims in accessing the program and explaining its benefits,” she said.

Upon enrollment, those who enter the program have their mail sent to a secure address for two years. That time period can be extended if requested, the attorney general’s office said.

For more information on the address confidentiality program, contact the attorney general’s office by phone at 1-800-321-1907 or by e-mail at confidential@atg.state.in.us

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 9 today (and 21 NFP)

It is the end of the month and the COA has released a slew of opinions today - 30 in all. The first one is the blackjack card counting case, where the COA rules: "Donovan is entitled to summary judgment on his request for a declaratory judgment to the effect that Grand Victoria may not exclude him from blackjack because he counts cards." More later

For publication opinions today (9):

Thomas P. Donovan v. Grand Victoria Casinio & Resort, L.P. [see Indy 6 News story here, from Oct. 30, 2009]

Indianapolis City Market Corp. v. MAV, Inc. d/b/a Grecian Garden - In a 22-page opinion, Chief Judge Baker concludes:

In our view, the trial court was able to ascertain, with a relative degree of certainty, the measure of damages from the lost opportunity, i.e., MAV’s inability to operate in the renovated Market House from November 2007 until April 7, 2008. The amount of damages calculated by the trial court was within the scope of the evidence that was presented at trial, and we decline to disturb that award.
See the just posted Indy Star story by Francesca Jarosz, headed "Appeals court says City Market owes $42,000."

In Anne M. Bingley v. Charles B. Bingley , a 14-page opinion, Judge Brown writes:

Anne Bingley appeals the trial court‟s order as to division of assets in the dissolution of her marriage to Charles Bingley. Anne raises a single issue, which we revise and restate as whether the trial court erred in concluding that Charles‟s employer-paid post-retirement health insurance premiums were not a marital asset subject to division. We affirm. * * *

MAY, J., concurs.
CRONE, J., concurs in result with separate opinion. [which begins, at p. 12] I agree with the majority‟s conclusion that Charles‟s employer-paid post-retirement health insurance premiums are not a marital asset subject to division. I write separately, however, because I reach that conclusion by a different route.

T-3 Martinsville, LLC, et al. v. US Holding, LLC, et al. - In a 14-page opinion by Judge Crone, the court grants rehearing and affirms its previous opinion.

Clay Howard v. Debra Daugherty and L.A. Vanatta - In a 4-page opinion, Judge May writes:

Clay Howard brought a Section 1983 complaint. The trial court dismissed his complaint for failure to pay filing fees. We affirm.

Howard, an inmate at the New Castle Correctional Facility, filed a complaint and was ordered to pay a partial filing fee of twenty-two cents. He submitted a forty-two cent stamp as payment but the trial court dismissed his complaint for failure to timely pay the filing fee.

Max Koenig v. State of Indiana

Roger L. Brown v. State of Indiana

Terrence Miller v. State of Indiana

Terry Rowe, Jr. v. State of Indiana

NFP civil opinions today (9):

Donald T. Haygood and Debbie Osman v. Safe Auto Insurance Co. (NFP)

Gideon Samid v. Virginia Spencer (NFP)

Lisa J. Lutterbach v. Michael R. Lutterbach (NFP)

Shirley Williams v. Robert Williams (NFP)

Bradley K. Buchanan, et al. v. Consolidated Brokers Corp. LLC (NFP)

Tincey J. Wright v. City of Richmond, et al. (NFP)

Marriage of L.S.G. v. R.A.B., Jr. (NFP)

Term. of the Parent-Child Rel. of: H.P., and A.H. v. Ind. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of A.O.; J.P. v. IDCS (NFP)

NFP criminal opinions today (12):

Van Johnson v. State of Indiana (NFP)

Richard Welch v. State of Indiana (NFP)

Jose Aguilar v. State of Indiana (NFP)

Damon Lewis v. State of Indiana (NFP)

Jermaine Foster v. State of Indiana (NFP)

L.F. v. State of Indiana (NFP)

Kevin A. Nasser v. State of Indiana (NFP)

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

Dana R. Zirkel v. State of Indiana (NFP)

George Mansfield v. State of Indiana (NFP)

Timothy Alvey-Williams v. State of Indiana (NFP)

Eric V. Graves v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Ind. App.Ct. Decisions

Environment - Don't forget to order the 2009 Edition of the Indiana Environmental Statutes

The 2009 edition of the Indiana Environmental Statutes, edited by Marcia J. Oddi, is now available.

The 2009 edition of the annual publication, the Indiana Environmental Statutes, is sponsored by the Environmental Law Section of the Indiana State Bar Association. It is a convenient desktop resource including Title 13 of the Indiana Code, plus the administrative orders and procedures act (AOPA) and numerous other related Indiana statutes. 604 pp.

The price is $30.00. The book can be ordered online, in singles or in quantity, directly from the printer -- you may see the "preview" and place your orders here.

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Environment

Courts - "Kansas Supreme Court hears arguments about caps on damages awarded to patient"

That is the headline to this story yesterday in the Kansas Lawrence Journal World. The subhead is "Case against Lawrence physician attracting great deal of attention." Scott Rothschild reports:

Topeka — Attorneys for a Eudora woman whose doctor removed the wrong ovary said Thursday that a $250,000 cap for damages was unconstitutional.

“It’s a fundamental affront to the court and separation of powers,” said Ned Miltenberg in arguments before the Kansas Supreme Court.

But Bruce Keplinger, an attorney for Dr. Carolyn Johnson, said the Legislature was within its rights to cap damages as a way to help keep insurance companies and doctors in the state.

The cap, Keplinger said, “is vital to the viability of this state. If it goes away, you will be creating the insurance crisis of 2010.”

The state Supreme Court took the case under advisement, and didn’t indicate when it would decide the matter.

The dispute focuses on the case of Amy Miller, who in 2002 went in for surgery for removal of her right ovary. Johnson, of Lawrence, removed her left ovary by mistake.

Miller sued for malpractice and a Douglas County jury awarded her $759,680, which included funds for pain and suffering and future medical expenses.

But the award was knocked down by then-District Court Judge Steve Six — now the state’s attorney general — to comply with the $250,000 cap approved by the Legislature 20 years ago.

The case has drawn the attention of doctors, insurance companies and businesses that support the cap, while unions and plaintiffs’ attorneys want to see the cap shot down.

Miltenberg argued that establishment of such a cap violates a person’s constitutional right to trial by jury, and infringes on the constitutional authority of the judiciary.

But Keplinger said the cap was put in place to promote a public good -- keeping health care and insurance available -- and didn’t infringe on constitutional rights.

Recall this ILB entry from Sept. 6th, headed "Indiana malpractice cap may be challenged."

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Courts in general

Courts - "Judges In Pa. Corruption Case Likely to Evade Civil Charges" Indiana case mentioned

Remember the stories about the two Pennsylvania judges who "sent thousands of juveniles to detention centers in return for kickbacks"? Here are several new stories posted yesterday.

[More] You ask, what was the Indiana case that led to the leading precedent on judicial immunity? It was Stump v. Sparkman. Here is the SCOTUS 1978 opinion. For more, see this ILB entry from March 28, 2007.

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Courts in general

Ind. Courts - "Courts Use Collaboration Model To Try And Dial Down Emotions In Divorce Cases"

Fort Wayne WPTA-TV has this story by Jeff Neumeyer:

FORT WAYNE, IN (Indiana's NewsCenter) --- The shooting death of Amy Meyer White in Wells County on Tuesday illustrates how divorce cases can turn explosive, and why diffusing runaway emotions is critical to heading off violence.

Police say the 28-year old woman was shot and killed by her estranged husband Tyler White as the two were exchanging custody of their toddler.

Conflict often spills over into the court system, where combative lawyers fight over a host of unresolved matters.

The concept of "collaborative divorce" is an attempt to pursue a different strategy, one that emphasizes respect and reason over anger and resentment.

In Allen County, thirty lawyers and mental health professionals take part in a program that aims to steer willing couples to use an objective third party mediator to help settle contentious issues.

Magistrate Thomas Boyer/Allen Superior Court: " Basically, a model that goes away from the traditional concept, okay, divorce has been filed, let's race to the courthouse, let's have a hearing, let's see who's going to be the winner and who's going to be the loser, cause what reality shows us is, in these situations, nobody wins."

Collaborative divorce, of course, doesn't eliminate the need for couples to work out a host of other disputes.

Magistrate Boyer says it can be a good idea to arrange child exchanges at neutral locations, rather than at the home of either spouse.

He also discourages heavy reliance on email communication back and forth.

It’s true that can take the place of tension filled face-to-face or phone encounters.

But Boyer says ideally couples need to learn to work out their differences, and that direct contact fosters better long-term solutions.

Posted by Marcia Oddi on Friday, October 30, 2009
Posted to Indiana Courts

Thursday, October 29, 2009

Courts - Arizona Supreme Court holds that embedded metadata in an electronic public record is subject to disclosure

The case is David Lake v. City of Phoenix. The opinion of the Arizona Supreme Court begins:

Arizona law provides that “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” Ariz. Rev. Stat. (“A.R.S.”) § 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.
How did the issue arise? From the opinion:
David Lake, a Phoenix police officer, filed an administrative complaint and federal lawsuit alleging employment discrimination by the City of Phoenix. He also submitted a public records request to the City, seeking notes kept by his supervisor, Lt. Robert Conrad, documenting Lake’s work
performance. After reviewing paper copies of Conrad’s notes, Lake suspected that they had been backdated when prepared on a computer. Lake then requested “‘meta data’ or specific file information contained inside . . . [Conrad’s notes] file,” including “the TRUE creation date, the access date, the access dates for each time it was accessed, including who accessed the file as well as print dates etc.”1 The City denied the request, contending that metadata is not a public record under Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).
Here is the just-issued statement of the Reporters Committee for Freedom of the Press. Some quotes:
The Arizona Supreme Court today ruled that metadata – information about the history, tracking and management of an electronic document – is subject to the state’s public records law.

Several national media organizations supported Phoenix police officer David Lake’s challenge that the city improperly denied his 2006 public records request for the metadata about documents he had previously requested and received. The city refused Lake’s request, arguing the metadata did not fall within the state’s definition of public records, which a court established in 1952, long before the advent of electronic documents.

In a unanimous opinion released today, the state’s high court held, “If a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure.”

David J. Bodney, a lawyer who helped write a friend-of-the-court brief on behalf of The Associated Press, Gannett Co., The E.W. Scripps Company, and The Reporters Committee for Freedom of the Press, said the state Supreme Court decision is a victory for public access.

“The decision is important because we live in an electronic age where maintenance and preservation of public records in electronic format is quickly becoming the norm,” Bodney said. “Public bodies should not be permitted to withhold that information from public inspection.” * * *

Bodney said the state Supreme Court’s decision may be the first one of its kind for a state high court.

The Arizona decision could be persuasive in other states, including Washington, where the Supreme Court has agreed to hear a metadata case this term. The City of Shoreline is appealing a 2008 a Washington appeals court's decision that metadata is a public record in O’Neill v. Shoreline.

This site provides links to some of the briefs in the case.

An Indiana experience:
I ran in to the issue of a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents in March of 2007. Unfortunately, the public access counselor at the time found in favor of the agency, in a somewhat confusing opinion. (My interest at the time was not in any potential metadata, but in accessing digital copies of Word documents, rather than paper copies, because thousands of pages were involved.) Here are come quotes from my request for IDEM records:
Late last fall, when the [IDEM online] Enforcement Database had not been updated since April of 2006. I filed a request with the OE for digital copies of all the outstanding NOVs and AOs. (Note: When finalized, a digital copy of every NOV and AO is filed with the OE administrative assistant in change of keeping the Enforcement Database updated. These documents are in MS Word format.)

I was told filling my request was not possible, that these documents might contain "deliberate, privileged and confidential material" and also might contain metadata. I was offered the opportunity to obtain paper copies of the approximately 800 multipage documents. * * *

However, when I requested the January 2007 digital documents earlier this year, I was again put off and when, last week, I requested what were now both the January and February documents, I was notified:

The January 2007 enforcement records are available on the IDEM webpage at http://www.in.gov/serv/idem_oe_order. Hard copies of those records are also available in the IDEM Central File Room on the 12th floor of the Indiana Government Center North, 100 N. Senate Ave, Indianapolis, IN.
I believe this is a denial to the public right of access under IC 5-14-3-3(d), which provides that "a public agency shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, etc... if the medium requested is compatible with the agency's data storage system."
In short, the option given to me by IDEM, and the one with which the PAC agreed, was that I could either purchase the hundreds of pages of paper printouts, or search for and retrieve the documents one-by-one from the IDEM webpage, where the original MS Words documents have been mechanically converted into primitive html (an example). My requests for e-mail attachments and my offers to provide CDs were denied.

The situation has not improved in the intervening years. The documents are still posted for the public about six weeks late, are still in barely readable html, and users still are forced to search for them and download them one-by-one.

[More] Robert Anglen of the Arizona Republic writes:

For years, the City of Phoenix has routinely refused to release public records in electronic form.

If you wanted a record, you had to pay for a copy on paper. If you wanted thousands of pages of public records, you had to pay for a copy of each page.

It didn't matter if the city kept the records in electronic format or if you offered to provide a CD or requested an e-mail attachment. The city said no. The official line: the law only says we have to give it to you, it doesn't say how we have to give it to you.

And the example set by Phoenix was followed by other cities and government agencies across the state that refused to release electronic records.

No longer. On Thursday morning the Arizona Supreme Court ruled that electronic records maintained by public agencies are subject to disclosure under the law.

The court took it a step farther and ruled that metadata contained in computer files is also a public record. Metadata is the coding contained in a file that shows, among other things, when and how a document was created.

"We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law," the court said. "Our decision is unlikely to result in the administrative nightmare that the city envisions."

This makes Arizona only the second state in the country where a court has ruled that electronic records are subject to disclosure.

And there is nothing esoteric about the decision. It affects everybody who has ever attempted to access records.

Want an example?

The Arizona Republic recently requested the applications of a particular set of license holders in Phoenix. There are hundreds of records and there is no question that the applications are public records. The city kept a database of these records but refused to take a few minutes and copy the information onto a blank CD.

Instead, the city said reporters would have to pay for each page of the records...and a staff person would have to photocopy each page by hand.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Courts in general

Courts - More problems with elected justices and campaign money [Updated]

SCOTUSBlog's Thursday roundup puts it succinctly:

The Wisconsin Supreme Court, by a vote of four to three, adopted rules allowing judges to hear cases involving their campaign contributors. The rules were added to the judicial code of conduct and were proposed by two powerful Wisconsin business groups. Wisconsin is one of the first states to consider recusal rules in light of the Court’s decision in Caperton v. A.T. Massey Coal Co.
Patrick Marley of the Milwaukee Journal Sentinel reports today in a long story that begins:
Madison — A deeply divided state Supreme Court adopted a rule Wednesday that says endorsements, campaign contributions and independently run ads in themselves are not enough to force a judge off of a case.

The court adopted the proposal on a 4-3 vote, with those in the majority saying the rule was essential to clarifying policies at a time when justices increasingly face charges of bias. The dissenters said the court was only further clouding the issue.

"It will send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive," said Justice Patience Roggensack.

Countered Justice N. Patrick Crooks: "I think what it's going to do is add to the perceptions (of bias) that are apparently out there rather than put them to rest."

Voting for the rule change were Roggensack and Justices David Prosser, Annette K. Ziegler and Michael Gableman. Joining Crooks in his dissent were Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley.

The new rule was written by the Wisconsin Realtors Association and business lobbying group Wisconsin Manufacturers & Commerce. The justices rejected competing proposals from the League of Women Voters of Wisconsin and former Justice Bill Bablitch, who wanted to require judges to step aside if a lawyer or party to a case gave them more than a certain amount.

The state's longstanding ethical code for judges says they must recuse themselves if their impartiality can reasonably be questioned. The new rule amends that to say campaign spending and endorsements alone aren't enough to require them to step aside.

[Updated 10/31/09] See this story by Zach Lowe of The American Lawyer headed "Wisconsin Becomes First State to Set 'Caperton' Standard."

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Courts in general

Ind. Courts - "Arguments completed in E.C. casino money lawsuit " [Updated]

So reports Dan Carden of the NWI Times in a story posted this afternoon. Some quotes:

INDIANAPOLIS | Oral arguments at the Indiana Supreme Court have concluded in a battle over who gets to control East Chicago casino money earmarked for local development.

Foundations of East Chicago is challenging a 2007 state law giving the City of East Chicago the power to decide how to distribute the development money.

Attorney Peter Rusthoven argued forcefully that Foundations of East Chicago, an independent nonprofit agency, should continue to receive the casino funds.

Rusthoven claimed the legislature went too far by writing a state law that only applies to East Chicago. The state constitution requires laws to apply to everyone.

Solicitor General Thomas Fisher, representing the state and supporting the city in the case, didn't deny the General Assembly wrote special legislation.

But Fisher said the East Chicago situation -- giving casino money to several private foundations and the city's accompanying record of official corruption -- was so unique the legislation was appropriate.

Justice Frank Sullivan Jr. seemed doubtful of that claim and challenged Fisher several times to explain how special legislation is ever justified.

The city's attorney, William Bock III, took a different tack and argued Foundations of East Chicago isn't entitled to the money, because it's not named specifically in the 1995 agreement between the city and the casino operator.

Foundations of East Chicago was created in 2007 through the merger of two nonprofit foundations named in the local development agreement.

In April, the Indiana Court of Appeals ruled the law giving East Chicago the power to redirect casino money is constitutional. The appeals court claimed the city is entitled to control the distribution of the money even without the law.

A decision from the Indiana Supreme Court is expected early next year.

The oral arguments lasted 45 minutes before the five justices in the ornate Supreme Court chamber on the third floor of the Statehouse.

A brief story from the Gary Post-Tribune staff reports:
The state Supreme Court this morning in Indianapolis heard oral arguments in the continuing legal battle between the East Chicago administration of Mayor George Pabey and a for-profit foundation that has received millions in city casino revenues for more than a decade.

Attorneys for the foundation argued it was unconstitutional for the City Council to end a deal with the Foundations of East Chicago that has steered more than $43 million to the group under an agreement with the city reached 12 years ago under former mayor Robert Pastrick.

The city has maintained that little money has made it back into the community in the form of economic development, while board members appointed by Pastrick have soaked up much of the money with administrative costs.

State law adopted in 2007 seemed to give the council that authority, but foundations attorney Peter J. Rusthoven said the law was unconstitutional special legislation targeting his clients.

"If this is not special legislation, I do not know what is," he said. "There is no evidence offered (of any misuse of funds). There are newspaper articles."

The case is the third time issues related to the foundations have reached the high court in five years, as Pabey has tried to wrest control of the additional casino millions from foundations controlled by Pastrick appointees.

Some quotes from a press release from the Indiana Attorney General's office:
In a case before the Indiana Supreme Court today, the Indiana Attorney General’s Office argued the General Assembly can allow city of East Chicago to decide for itself how to direct millions of dollars in casino revenue – so that the city is not locked into a deal brokered by a former mayor investigated for racketeering.

At issue is whether the new city leadership in East Chicago could, by law, cancel an agreement engineered by former Mayor Robert Pastrick in 1995 that steered millions of dollars in casino revenue into two nonprofit foundations led by Pastrick allies.

The State of Indiana – through Attorney General Greg Zoeller – contends the current city leadership had the legal ability to cancel the Pastrick-era deal with the two foundations in 2007, so that the annual payment from the former Showboat casino (now Ameristar) would be redirected to city management.

The two nonprofits, which have now merged into an entity known as Foundations of East Chicago Inc., each received a one percent cut of casino revenue annually to spend on local development projects. The two foundations received a combined $43.5 million in casino revenue over 10 years.

The Indiana General Assembly passed a law in 2007 giving the new leadership in East Chicago the authority to cancel Pastrick’s 1995 local development agreement with Foundations. Contending the state law was unconstitutional, Foundations sued the city to undo the cancellation and restore the annual payments. The Attorney General’s office joined the case as an intervenor-defendant supporting the city’s argument. The trial court sided with the state and city, as did the Indiana Court of Appeals.

Foundations appealed and today the Indiana Supreme Court heard arguments in the case.

The ILB has had a number of entries on the case, Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana, including this one from Oct. 26th with all the filings in the appeal.

[Updated early on 10/30/09] Here is a statement the ILB has just received from the Foundations of East Chicago:

Foundations of East Chicago Press Release

October 29, 2009

The Foundations of East Chicago, Inc. are pleased that the Indiana Supreme Court is addressing the legal issues related to the passage of a statute that would remove the City of East Chicago development agreements from the regulatory authority under which they were approved, and instead periodically subject them to the whims of the East Chicago political process with no oversight or regulation. When gaming arrived in East Chicago, the citizens were clear that a condition was that some money was to be spent in the community in a manner insulated from the political issues of the day in order to provide long-term and consistent benefits to the citizens of East Chicago. Every entity that has reviewed the Foundations, including its governmental regulators, has determined they have acted in a manner consistent with these original expectations. The irony is not lost on the Foundations that the entity that seeks this money (the City) defends this statute on the basis that the City used to be corrupt. Yet, if the City has its way, should the " corruption" the City asserts return, that same "corrupt" City will have these additional funds at its disposal.

Among those supporting the Foundations are churches, an alliance of ministers, and numerous other individuals who both lack the political motivation to attack the Foundations and independently recognize the valuable community services they provide. For them and the citizens of East Chicago, the Foundations are hopeful that the Court will address and affirm the constitutional safeguards and regulatory framework as it exists, thereby allowing the Foundations to continue their work both now and in the future.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Crystal Reeves v. Sharon Downin, a 9-page opinion, Judge Kirsch writes:

Tenant Crystal Reeves filed suit against her landlord, Sharon Downin, seeking recovery of her security deposit, and Downin filed a counterclaim for damages to the apartment. Following the trial court‟s denial of her motion to correct error, Reeves appeals and raises two issues that we consolidate and restate as: whether the trial court abused its discretion when it rendered a judgment in favor of Downin on her counterclaim for damages to the apartment, even though Downin failed to provide Reeves with an itemization of damages and written notice of her intent to retain the security deposit. We reverse and remand.
In Marijeanne Brown-Day v. Allstate Ins. Co. , a 9-page opinion, Judge Bailey writes:
Marijeanne Brown-Day (“Brown-Day”) sued her insurer, Allstate Insurance Company (“Allstate”), for underinsured motorist benefits. We have accepted this interlocutory appeal to review pretrial orders granting a motion for party substitution and a motion in limine, which collectively prohibited any explicit reference to Allstate. We reverse and remand. * * *

Allstate is the sole defendant in this case, and neither Evidence Rule 411 nor the common law permits the substitution of a non-party so as to conceal Allstate’s identity as an insurer. Additionally, pursuant to Evidence Rule 616, evidence of bias, prejudice, or interest of a witness for or against a party is admissible, and the rule may not be disregarded on grounds that the party involved is an insurance carrier.

In A.K. v. State of Indiana , a 5-page opinion, Sr. Judge Hoffman writes:
A.K. raises one issue for our review, which we restate as: Whether the juvenile court erred in denying A.K.’s motion to dismiss, which was based on Ind. Code § 31-37-11-2(b). * * *

A.K.’s objection and motion were precipitated by Ind. Code § 31-37-11-2(b), which provides that when a child is not in detention and a petition has been filed, “the hearing must be commenced not later than sixty (60) days, excluding Saturdays, Sundays, and legal holidays, after the petition is filed.” A.K.’s motion asked for dismissal of the charges against him because the fact-finding hearing was not set within the sixty-day period following the February 1, 2008 filing of the petition listing the allegations against him.

We first observe that the juvenile code does not mandate dismissal of the charges when the sixty-day deadline is not met. Indeed, our supreme court has noted that failure to meet the twenty-day deadline for a juvenile in detention found in Ind. Code § 31-37-11-2(a) results in neither dismissal of the charges nor in loss of jurisdiction by the juvenile court, as there is nothing in the statute that can be interpreted to mandate such results. * * *

Finally, we observe that the setting of the May 12, 2008 hearing was made with A.K.’s agreement. He did not object to the setting of the fact-finding hearing outside the sixty-day period set forth in Ind. Code § 31-37-11-2(b). In the adult criminal setting, governed by Indiana Rule of Criminal Procedure 4(C), speedy trial rights are deemed waived when the time period provided by the rule has not expired, a trial date has been set for a date beyond that period, and no objection has been made. * * * Given the silence of the juvenile code and the paucity of law pertaining to the code, we hold that an analogy to the adult criminal setting is appropriate. The objective of Ind. Code § 31-37-11-2(b) is to facilitate an orderly and timely process; the section’s deadline is not a mechanism for dismissal when the court has accommodated the juvenile and a timely objection has not been made. Affirmed.

NFP civil opinions today (1):

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

NFP criminal opinions today (14):

Leon Moore v. State of Indiana (NFP)

Richard S. Meadows v. State of Indiana (NFP)

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

Dallas S. Brown v. State of Indiana (NFP)

Tromaine Langham v. State of Indiana (NFP)

Carleton Holt v. State of Indiana (NFP)

R.P. v. State of Indiana (NFP)

Erick Damone Peters v. State of Indiana (NFP)

Michael G. Graves v. State of Indiana (NFP)

Ricardo Austin v. State of Indiana (NFP)

Leo L. Valle v. State of Indiana (NFP)

Wiley Bell v. State of Indiana (NFP)

Rodney Word v. State of Indiana (NFP)

Perry Jerome Towne v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Judge pushes Indiana on welfare debate: Action comes just days after governor fired vendor from $1.34 billion contract."

Here is a long story from the AP's Ken Kusmer that begins:

INDIANAPOLIS — A federal judge has ordered Indiana's partially privatized welfare intake system to speed up decisions on food stamp applications, but the state has a year to meet its first target.

U.S. District Judge Robert Miller issued a preliminary injunction last week in a class-action lawsuit covering every food stamp applicant in Indiana over the past 19 months. The order represents the latest setback to one of nation's most ambitious welfare privatization efforts and came just days after Gov. Mitch Daniels fired vendor IBM Corp. from its $1.34 billion contract to lead the project.

The early problems met by IBM and its partners led LaPorte attorney Shaw Friedman to sue on behalf of eight welfare recipients in state court last year, and the state got the case moved to federal court. The IBM team's tardiness in approving or denying applications became so big an issue that federal food stamp officials in June 2008 asked the state for a formal plan to correct the problem.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Ind. Law - "Cleaning up after meth"

A Fort Wayne Journal Gazette editorial from Oct. 28, referencing its story from Oct. 24th:

Sometimes the best intentions fall short. That’s the case with Indiana’s law governing the cleanup of illegal-drug labs. The law’s reporting requirements don’t go far enough in mandating not only the cleanup of the toxic remains of a methamphetamine lab but also the protection of prospective homebuyers.

Julie McCoy Sabatino’s case illustrates the law’s inadequacies. As The Journal Gazette’s Angela Mapes Turner reported in her story Saturday, the real estate disclosure form for Sabatino’s Churubusco home included a handwritten note acknowledging “there may have been meth on property,” but Sabatino’s financial resources and desperate need for a place to live with her 10-year-old son outweighed any concerns she might have had.

As soon as they moved in, both began to have respiratory problems. Her son’s asthma symptoms worsened. Sabatino did some research and found the previous owner’s tenants had been arrested in connection with producing meth. The landlord’s efforts to wash away the contamination were clearly not enough.

To comply with the state’s 2005 meth lab law, the Indiana Department of Environmental Management developed rules that set standards for cleanup and inspection of sites used to make illegal drugs.

The guidelines require an inspector to certify decontamination levels for various chemical substances or removal of the property contents in place of decontamination.

The latter course requires removing virtually everything – all the furnishings and personal items, plaster and wallboard, paneling, cabinets, appliances, shelves, doors, baseboards and floor coverings down to the subfloor, which must be sealed.

Indiana’s cleanup law, like that in most other states, places responsibility with the property owner, who in ridding a property of contaminants can face costs of as much as $150,000.

Of about 20 states with meth lab laws, only Colorado makes federal grant money available to innocent property owners facing cleanup costs. Minnesota has a revolving cleanup loan fund.

Sabatino, who had to move out of her house and has now lost it to foreclosure, could have used such assistance. There are others, including low-income elderly people whose homes are used without their knowledge, who also would benefit.

The meth lab reporting requirements Indiana passed can do only so much in protecting residents. Homes contaminated before the law went into effect are left out. And tight budgets limit the ability of county departments of health to maintain electronic records of drug lab properties. With Indiana home foreclosures increasing, the information about properties becomes even more difficult to track, and the likelihood increases that an unsuspecting family will find itself in a former meth-lab home.

Lawmakers should find a way to protect homebuyers like Sabatino. Resources to pay for decontaminating homes would be a good start.

The ILB has a very long list of earlier entries involving methamphetamine. Many of them concern meth cleanup and who should bear the cost. See particularly this comprehensive entry from July 14, 2009.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Indiana Law

Ind. Courts - More on: "Trial about St. Joseph County judge's mandate order ends" [Updated]

Updating this ILB entry from Sept. 25th, Erin Blasko reports in the South Bend Tribune in a story headlined: "Special judge rules in favor of Nemeth: St. Joseph County ordered to release funds for raises, physical improvements at Juvenile Justice Center":

SOUTH BEND – A judge has ruled in favor of Probate Judge Peter Nemeth in a dispute between him and St. Joseph County officials over funding for the Juvenile Justice Center.

In his order and judgment, William Satterlee, a Valparaiso attorney appointed special judge in the case, ruled funding requested by Nemeth in 2008 to pay raises and make physical improvements at the Juvenile Justice Center was not only necessary for the operation of the court and court-related functions, but did not represent a financial burden to the county.

Nemeth issued a judicial mandate in February of 2009 directing the St. Joseph County Council and Board of Commissioners to appropriate the funds, totaling about $355,000.

The appropriation was approved by both the council and commission in late 2008, but commissioners never signed the requisition form.

Satterlee's ruling requires the funds now be released.

The county can appeal the decision.

[Updated at 11:19 AM] Here is an updated story from the Tribune.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Indiana Courts

Ind. Gov't. - "Jeff steel plant fined $240,000 for violations found after worker died"

Harold J. Adams reports in the Louisville Courier Journal in a story that begins:

Steel Dynamics, the Jeffersonville steel processing plant, was fined $240,000 Wednesday by the Indiana Department of Labor for safety violations found in an inspection after a worker died at the facility in August.

Shay Fanase Jr., 21, was overcome by nitrogen while working in a confined space in the plant on Aug. 5 and died three days later at University Hospital in Louisville.

Chuck Carter, deputy labor commissioner in charge of the Indiana Occupational Safety and Health Administration, said Fanase’s death was caused by “a terrible design” that required the worker to open a furnace and put his head into it in order to pull parts through.

Carter said it’s a “very, very dangerous prospect when you open this door.”

“This is so high a level of nitrogen that putting your head in there and taking a good breath, you can say goodbye to consciousness immediately,” he said. “You are talking about levels of inert gases that can be nearly immediately fatal to a human being.”

“If they were in compliance with these rules beforehand they would not have had someone in that situation breathing those gases at that level and then you’re rolling the dice on whether you’re dead or you just end up in the hospital.”

Steel Dynamics spokesman Fred Warner said the company would not comment because it had not seen the IOSHA report. “We’ll review the findings when we get them … and if necessary further discuss with Indiana OSHA,” he said in a telephone message.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Indiana Government

Ind. Courts - More on: "Indiana Supreme Court Suspends Judge Accused of Theft"

Updating this ILB entry from Oct. 14th that reported that Knox County Bicknell City Court Judge David Andrew Moreland had been suspended, effective immediately, and included this quote from the Evansville C&P:

BICKNELL, Ind. — A Knox County judge and his wife were arrested this morning on accusations they stole thousands of dollars worth of traffic ticket fines from the court's account.

Bicknell City Judge Andrew Moreland, 45, and his wife, Cindy Moreland, 38, turned themselves in at the Knox County Jail and were then released on bond, Indiana State Police said. They are each facing five counts of theft, a class D felony.

Mike Grant of WTHI TV 10, Terre Haute, reported last evening:
BICKNELL, Ind. (WTHI) - A small southern Indiana community has learned the cost of returning order to its city court.

The Bicknell City Court has been closed for two weeks.

The State Supreme Court shut down the operation when City Judge Andrew Moreland and his wife, Cindy, were accused of five counts each of theft for allegedly taking $20,000 from court funds.

City officials said the closed court is an inconvenience to local residents and money from fines and court costs are no longer staying in town.

"We need our court back as soon as possible. That's the way I feel," Bicknell Mayor Jon Flickinger said. "It's putting the hammer on us because the local people now have to go to their courts in Vincennes down there."

The court operation will be more costly when a new judge is seated.

The city will have to pay both the suspended Judge Moreland and his replacement's salary.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Indiana Courts

Ind. Law - Flagrant Age Discrimination at IU-Indy School of Law?

The blog Concurring Opinions had this post yesterday from IU-Indy law prof Gerard Magliocca:

I am not in the habit of criticizing my employer, but here goes. Indiana University has a policy holding that the deans of individual schools on campus must retire at 65. In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly. This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.

I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA. Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.

Gary R. Roberts is the Dean and Gerald L. Bepko Professor of Law at Indiana University School of Law - Indianapolis. Here is the ILB entry from Jan. 20, 2007 announcing his appointment. The story includes:
Roberts, 58, will be paid $259,000 a year when he replaces interim Dean Susanah M. Mead on July 1.
That means Roberts has been dean a little over 2 years and will be 61 soon, if not already.

Roberts sent an e-mail to the law school faculty late yesterday, letting them know he was being interviewed for the Deanship at Denver. A quote:

When I interviewed here and accepted this dean’s job, I believed and expected that I would finish my career here by being dean for at least 10 years, a period I believed, and still believe, to be essential for accomplishing the strategic and resource development goals that this school must meet.
What does this portend for IU Law's future? One prof writes:
It could make it difficult for us to hire someone in the future. The person cannot not much over 50 if they want to be a Dean for awhile.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Indiana Law

Environment - Former IDEM Air Chief goes to Washington

Janet McCabe, the highly-regarded, long-time head of IDEM's Air Office until the politics changed with Gov. Daniels' election, has accepted the position of chief deputy to the head of U.S. EPA's Air Office. McCabe, a Harvard Law graduate, will have the official title of Principal Deputy to the Assistant Administrator for Air and Radiation. Here is the AP story.

Posted by Marcia Oddi on Thursday, October 29, 2009
Posted to Environment

Wednesday, October 28, 2009

Ind. decisions - "$29M deal reached in IMI price-fixing lawsuit: IMI settlement is the biggest yet in concrete scheme"

Jeff Swiatek of the Indianapolis Star reports today that:

Plaintiffs in a concrete price-fixing lawsuit in Central Indiana have landed their largest settlement yet.

Irving Materials, a Greenfield-based construction materials supplier, has agreed to pay $29 million to settle charges that it conspired with six other concrete firms to overcharge customers. IMI was the largest firm among the original defendants and had the biggest market share.

The settlement allows IMI to avoid a class-action trial set for next summer. Two companies are now left as defendants. Three others have settled for a combined $24 million.

IMI's settlement must be approved by a federal judge before it's official. It would boost the amount of settlement money paid by the companies in the case to $53 million.

"This is an historic settlement. We could not be more thrilled," Irwin Levin, lead attorney for the plaintiffs, said Tuesday.

The settlement funds, minus legal fees and other costs, will be paid to a court-approved class of about 5,000 individuals and companies that bought $700 million of ready-mixed concrete from the seven companies during the four years of the conspiracy, 2000 to 2004. Of the $24 million in settlements, attorney fees and other costs have eaten up $8 million. The fees and costs for the IMI settlement are not known.

Levin, an attorney for the Indianapolis firm Cohen & Malad, said the settlements so far, counting IMI, amount to "one of the highest percentage recoveries in civil antitrust cases in history." * * *

The companies that have not settled are Builder's Concrete & Supply and Beaver Materials Corp.

Those that settled earlier are American Concrete Co., Shelby Gravel and Southfield Corp. Another defendant, Hughey Inc., went bankrupt.

The U.S. Justice Department pursued criminal charges against the concrete companies after an FBI investigation.

In 2005, the government hit IMI with what was then the largest antitrust fine in U.S. history, $29 million, for its role in the conspiracy that illegally drove up the price of concrete sold in Central Indiana.

The Web site concreteantitrustsettlement.com contains information for plaintiffs and others about the case.

A side-bar to the story sets out a "Timeline of price-fixing scheme."

The ILB has a number of earlier entries on this case, including: Sept. 10, 2009, July 28, 2008, May 20, 2006.

Posted by Marcia Oddi on Wednesday, October 28, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Federal Judge orders Ind. to improve food stamp processing"

Ken Kusmer of the AP reports in a long story:

A federal judge has ordered Indiana's partially privatized welfare intake system to speed up decisions on food stamp applications, but the state has a year to meet its first target.

U.S. District Judge Robert Miller issued a preliminary injunction last week in a class-action lawsuit covering every food stamp applicant in Indiana over the past 19 months. The order represents the latest setback to one of nation's most ambitious welfare privatization efforts and came just days Gov. Mitch Daniels fired vendor IBM Corp. from its $1.34 billion contract to lead the project. * * *

Federal law requires all states to approve or deny most food stamp applications within 30 days, but Indiana usually falls short, deciding only 64 percent of cases on time last month. The preliminary injunction requires the state to decide 80 percent of new cases on time within 12 months and 90 percent within 18 months. * * *

Attorneys for the Indiana Family and Social Services Administration and the plaintiffs negotiated the terms of the order over several weeks, and Miller, sitting in South Bend, signed it Oct. 19, four days after Daniels canceled IBM's contract.

Posted by Marcia Oddi on Wednesday, October 28, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Jeff and Nancy Ream v. Yankee Park Homeowner's Association, Inc. , a 22-page, 2-1 opinion, Judge Bradford writes:

Appellants/Plaintiffs/Counterclaim-Defendants Jeff and Nancy Ream (the “Reams”) appeal the trial court’s order in favor of Appellee/Defendant/Counterclaim-Plaintiff Yankee Park Homeowner’s Association, Inc. (“Yankee Park”) terminating the Reams’ leases for and evicting them from Lots 50 and 68 in Yankee Park. On appeal, the Reams raise three issues, which we restate as follows: I. Whether the trial court erred in finding that Yankee Park demonstrated a legal basis for evicting the Reams from Lots 50 and 68; II. Whether the trial court erred in denying the Reams’ claim for equitable relief to ensure that the Reams could place trailers on their lots as they saw fit; and III. Whether the trial court committed reversible error by denying the Reams’ claim for damages. We affirm. * * *

Having found no clear error in (1) the trial court’s determination that a legal basis existed to terminate and forfeit the Reams’ interest in Lots 50 and 68; (2) the trial court’s findings and conclusions relating to the Reams’ request that the trial court require Yankee Park to provide specific legal descriptions for each of the lots contained within the Park to secure the Reams’ right to place a trailer on each of their remaining lots; and (3) in light of the fact that the Reams committed the first material breach of the lease agreements for Lots 50 and 68, and cannot recover damages resulting from any alleged breach of the leases for lots 50 and 68 by the Board of Directors, we affirm the judgment of the trial court. The judgment of the trial court is affirmed.

BAILEY, J., concurs.
VAIDIK, J., dissents with opinion. [which begins, at p.20] I respectfully dissent. I agree that the Reams materially breached the terms of their lease and are not entitled to damages or equitable relief, but I disagree with the majority that forfeiture is the appropriate remedy in this case.

In Susan (Wood) Runkle v. Max A. Runkle, et al. , a 14-page opinion, Judge Brown concludes:
We conclude that Fifth Third Bank established as a matter of law that Susan (or her attorney) knew or in the exercise of ordinary diligence should have known more than two years before she filed her complaint that Fifth Third Bank had wrongfully issued a second mortgage on the marital residence. In the absence of any designated evidence that Max's Verified Financial Declaration was not promptly served on Susan's attorney in accordance with the Indiana Trial Rules, we conclude as a matter of law that she (or her attorney) knew or should have known prior to June 3, 2003, that she had suffered some sort of injury as a result of Fifth Third Bank's allegedly wrongful actions. See Minnick v. Minnick, 663 N.E.2d 1226, 1229 (Ind. Ct. App. 1996) (noting that “attorneys have a general duty to regularly check the court records and monitor the progress of pending cases”); Patton Elec. Co., Inc. v. Gilbert, 459 N.E.2d 1192, 1194 (Ind. Ct. App. 1984) (“It is the duty of an attorney to regularly check the court records and monitor the progress of pending cases.”).

For the foregoing reasons, we reverse the trial court's grant of Max's motion for summary judgment, and affirm the trial court's grant of Fifth Third Bank's motion for summary judgment, and remand for proceedings consistent with this opinion.

In State of Indiana v. Lindsey D. Schmitt, a 7-page opinion, Judge Mathias writes:
The Warrick Superior Court dismissed criminal misdemeanor charges against Lindsey Schmitt (“Schmitt”) due to the State’s failure to comply with court-ordered discovery. The State appeals and argues that the trial court erred when it dismissed the charges as a sanction for a discovery violation absent a showing of deliberate misconduct or bad faith. Concluding that the trial court did not clearly err when it dismissed the charges as a sanction for the discovery violation, we affirm.
In Cinergy Corp., et al v. St. Paul Surplus Lines Insurance Co., et al, a 22-page opinion in a much-lawyered, "duty to defend" case, Judge Mathias writes:
Cinergy Corporation, Duke Energy Indiana Inc., and Duke Energy Ohio Inc. (collectively “Cinergy”) appeal the Hendricks Superior Court's grant of summary judgment in favor of St. Paul Surplus Lines Insurance Co. (“St. Paul”), Travelers Casualty and Surety Co., and Associated Electric and Gas Insurance Services, Ltd. (“AEGIS”) (collectively “the Insurers”), and the trial court's determination that the Insurers have no obligation to defend, indemnify, or otherwise provide coverage to Cinergy in connection with Cinergy's alleged liability for violations of the Clean Air Act. Cinergy appeals and raises several issues, which we consolidate and restate as: I. Whether the trial court appropriately interpreted our supreme court's decision in Cinergy Corp. v. Associated Electric & Gas Insurance Services, Ltd., 865 N.E.2d 571 (Ind. 2007) in determining that the Insurers have no duty to defend or indemnify Cinergy in connection with Cinergy's alleged violations of the Clean Air Act; II. Whether the trial court erred when it determined that Cinergy's claims are not covered under the Insurers' policies; and, III. Whether the trial court should have postponed its coverage determination until the underlying federal lawsuit concerning Cinergy's alleged Clean Air Act violations was concluded.

Concluding that the trial court properly entered summary judgment in favor of the Insurers, we affirm. * * *

There was neither an actual or potential occurrence to bring the claims against Cinergy in the underlying federal litigation within the terms of the Insurers' policies. Therefore, trial court properly concluded that the Insurers have no obligation to defend, indemnify or otherwise provide coverage to Cinergy in connection with Cinergy's liabilities for alleged violations of the Clean Air Act for operations related to the Cayuga, Gallagher, Wabash, Gibson, Beckjord, Miami Fort and J.M. Stuart sites. Accordingly, we affirm the trial court's grant of summary judgment in favor of the Insurers.

NFP civil opinions today (1):

In Re The Marriage of Thomas L. Fine and Karen D. Fine (NFP) - "The evidence supports the trial court’s findings of fact that no written contract satisfying the Statute of Frauds for the sale of the Residence existed. In addition, there is no conclusive evidence to establish the equitable exceptions of promissory estoppel or part performance. Therefore, the trial court’s findings support its conclusions of law that Thomas has no ownership interest in the Residence. As a result, the judgment of the trial court is affirmed."

NFP criminal opinions today (1):

Randell Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 28, 2009
Posted to Ind. App.Ct. Decisions

Courts - Kentucky judge rejects mayoral candidate's motion to seal divorce files

Andrew Wolfson reported yesterday in the Louisville Courier Journal:

A judge Tuesday rejected a motion by Louisville mayoral candidate Jim King and his ex-wife, Rebecca, to seal their two divorce files from the 1980s, including one in which she accused him of physically, emotionally and verbally abusing her.

“This court on a weekly basis hears testimony from clients that is highly personal and very public,” Jefferson County Family Court Judge Patty Walker FitzGerald said after a hearing. “The fact is that divorce cases in this state are open.”

While FitzGerald refused to seal the cases entirely, she said she will allow lawyers for the Kings to argue Wednesday for withholding specific documents. She also said she will seal financial records and evaluations of the Kings’ children, which she said are confidential under current court rules.

Lawyers for the Kings indicated that they would appeal the decision to the Court of Appeals. * * *

Attorneys for the Kings — Don Cox and Janice Lintner for Rebecca King and Mark Dobbins for Jim King — argued that the files contain material that would harm their children and grandchildren if made public.

The lawyers also said that the U.S Supreme Court has said that judges have the authority to insure that their records “are not used to gratify, spite or prompt public scandal through the publication of the painful and sometimes disgusting details of a divorce case.”

But attorney Tim Napier argued for The Courier-Journal — which last Saturday published a story about allegations in the 1981 case and opposed the motion to seal — that divorce records have historically been open in Kentucky.

Referring to the allegations against Jim King, Napier said, “The very person who is alleged to have done these things is now running for the highest elected office in the city.”

The Kings filed a motion Tuesday to find The Courier-Journal and reporter Joseph Gerth, who wrote last week’s story, in contempt for reporting on the 1981 case file after FitzGerald said Friday that she was temporarily sealing both files pending Tuesday’s hearing.

But FitzGerald said Tuesday that the file obtained by the newspaper was not sealed when it was given to a reporter by the clerk’s office earlier last week, and Cox announced that the Kings were withdrawing the contempt motion, at least for now.

On June 14, 2004 the ILB posted an entry on a similar situation involving the U.S. Senate race in Illinois, a race that then little-known Barack Obama would ultimately win. The Chicago Tribune story is still available.

Posted by Marcia Oddi on Wednesday, October 28, 2009
Posted to Courts in general

Ind. Courts - "Justices to hear East Chicago casino case Thursday "

Dan Carden reports today in the NWI Times about the upcoming oral argument tomorrow in the case of Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana. From the story:

East Chicago's claim on millions of dollars in casino payments will be heard Thursday morning before the Indiana Supreme Court.

At stake is whether the city has the right to decide for itself how local development payments from the Ameristar casino should be spent.

The Foundations of East Chicago, a nonprofit organization, was designated as a recipient of casino revenue in the 1995 local development agreement between East Chicago and the casino.

Money given to Foundations of East Chicago was supposed to be used to improve housing and infrastructure in the city.

However, a 2006 Times investigation revealed Foundations of East Chicago was spending nearly one-third of its annual casino revenue, or some $2 million a year, on lavish salaries for its board of directors and staff and on promotional materials.

In 2007, the General Assembly approved a state law giving East Chicago the authority to take Foundations of East Chicago out of the casino agreement and decide for itself how to spend that local development money.

The Supreme Court will decide whether that law is constitutionally valid.

The Indiana Court of Appeals upheld the law in April, ruling that not only is the law constitutional, but that East Chicago was free to change casino revenue recipients even without the 2007 law.

"In other words, the (casino) is obligated to support the community at a certain level, but it is left to the East Chicago Common Council to determine the identity of the payee(s), and the council has the authority to pass a new ordinance changing the identity of the payee(s) at any time," Chief Judge John G. Baker wrote in the appellate court decision.

Foundations of East Chicago appealed that ruling to the Indiana Supreme Court, contending the Legislature does not have the power to authorize a city to unilaterally rewrite a valid contract.

The ILB has obtained and made available all the filings in the case.

Posted by Marcia Oddi on Wednesday, October 28, 2009
Posted to Upcoming Oral Arguments

Ind. Courts - More on "Clash of schools, blogs raises free-speech issues"

Updating this Oct. 17th ILB entry quoting an Indianapolis Star story that reported (and included a copy of the complaint) "Butler University is suing Jess Zimmerman, alleging libel and defamation," Andy Gammill reports today in the Star under the headline "Lawsuit dropped in Butler blogger case." The story is interesting:

Butler University said today in a statement that it had dropped a lawsuit against a student who had posted comments about two administrators on his blog. The university will continue with internal disciplinary proceedings against the student, Jess Zimmerman.

The university had sued the anonymous blogger in June to get courts to force him to identify himself, the university statement said. A subpoena led them to Zimmerman.

With his identity revealed, the district on Monday asked the court to dismiss its lawsuit.

Butler took issue with comments Zimmerman posted on his "TrueBU Blog" and which the university claims were defamatory and libelous remarks about two administrators involved in the removal of the student's stepmother, Andrea Gullickson, as chair of the School of Music. She still teaches at the university.

In an email to the Butler community, President Bobby Fong wrote that he values the ability of students and staff to speak out but that the university must also protect against defamatory personal attacks.

"Butler has a duty to safeguard robust academic speech," he wrote. "However, the University also has a commitment and duty to protect the safety of all its members and ensure the opportunity to teach and to learn freely. This, too, is part of creating a campus climate where robust speech can flourish."

On his blog, Zimmerman wrote that he is happy to have the court case dismissed but that the university is still treating him unfairly.

"They still plan to try me on campus, in a manner that I suspect will have a similar chilling effect on free speech and dissent both at Butler and elsewhere," he said, asking his supporters to sign an online petition of support. "Though dropping the lawsuit is a good step, the administration has made no progress towards fulfilling the demands mentioned in the petition."

Posted by Marcia Oddi on Wednesday, October 28, 2009
Posted to Indiana Courts

Tuesday, October 27, 2009

Ind. Courts - Retired St. Joseph County Superior Court William Means, 80, dies

Here is the story, written by Mary Kate Malone, in the South Bend Tribune, from Oct. 24th. Some quotes:

William Means, a respected political figure in Michiana who served 22 years as St. Joseph Superior Court judge, died Wednesday in a suburban Chicago nursing home. He was 80.

Known for his composure both inside and outside the courtroom, Means was well-liked by attorneys and well-respected by colleagues.

"He had an excellent demeanor for a judge," said St. Joseph Superior Court Judge Michael Scopelitis. "No matter what the situation was, he was able to remain calm and respectful toward everyone in the courtroom." * * *

Means worked as a private attorney in Mishawaka for 30 years before being appointed Superior Court judge in 1986.

"He served the people of this county with real devotion and honor," said Superior Court Judge Jerome Frese. "He was scrupulously fair... so dignified."

Means presided over several high-profile cases, most notably the conviction of Philip Stroud for the murder of three construction workers in Lakeville in 2000.

Means carefully studied every case, pacing in front of his office window that overlooked Main Street, colleagues said.

"He had piles of cases and files and paper in his office, but his mind was clean, sharp and pure," Frese said. "He was very politically astute. He was a statesman, not a politician. He was a jurist, not merely a judge."

Here is the obituary.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Rudrappa Gunashekar and Jayashree Gunashekar v. Kay Grose d/b/a America's Affordable Housing, J & K Mfg., an 8-page, 4-1 opinion, Chief Justice Shepard writes:

Rudrappa and Jayashree Gunashekar appealed the trial court’s judgment against them in a suit involving breach of contract, conversion, and deception. The Court of Appeals reversed and remanded solely on their dispositive claim that the court abused its discretion by denying their motion to continue the trial. We granted transfer and now affirm the trial court. * * *

[Justice Rucker's dissent begins] I respectfully dissent. Reversing the trial court’s judgment the Court of Appeals majority concluded ―[t]he trial court abused its discretion in denying the Gunashekars’ pro se motion to continue after their trial attorney withdrew six weeks prior to trial. Gunashekar v. Grose, No. 02A03-0712-CV-614 (Ind. Ct. App. Aug. 12, 2008). Although it may be correct to say that the trial court did not actually abuse its discretion, I do agree that the denial of the motion to continue was grounds for reversal. Involving a claim and counterclaim, and requiring at least some comprehension of insurance proceeds, negotiable instruments, joint and several liability, real estate ownership, contract compliance, attorney fee damages, civil damages for criminal conduct, and preparation for trial, this case presented a level of complexity that few if any pro se litigants would have been able to navigate successfully. With a potential exposure, and indeed an ultimate adverse judgment, of nearly a half million dollars the Gunashekars needed the assistance of trained legal counsel. Fairness and equity required the trial court to afford the Gunashekars a reasonable delay to accomplish this end.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to Ind. Sup.Ct. Decisions

Law - GAO report blames U.S. News law school rankings for rising cost of legal education

See Ellie Mystal's Above the Law entry here. It begins:

The Government Accountability Office has released a new report on the rising cost of legal education. Who is to blame? Not the ABA. Not university presidents using their law schools as cash cows.

According to the GAO, the U.S. News law school rankings put law school deans in a “resource intensive” competition to rise up the U.S. News list.

Here is the 44-page report.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Sheila Perdue, et al. v. Anne Waltermann Murphy, et al. , a 22-page opinion, Judge Bradford writes:

In this interlocutory appeal we conclude that the plaintiffs' proposed Class B, which names all welfare applicants with disabilities in the State of Indiana who require reasonable accommodation and have been or will be denied benefits due to their alleged failure to cooperate with the FSSA on any number of grounds, is too broad to constitute a manageable class action under the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973 (“RA”). We further conclude, however, that a more specific class could perhaps be defined. Accordingly, we affirm the trial court's denial of class certification for proposed Class B but remand for a hearing to determine whether a more specific class can be defined.

The Indiana Family and Social Services Administration (“FSSA”) is responsible for the operation of welfare programs in Indiana, including the Food Stamp, Medicaid, and Temporary Assistance for Needy Families (“TANF”) programs. At some point in 2006 or 2007, FSSA contracted with private company IBM to provide many of these services.[4]
[4] We recognize that this contract has recently been cancelled. The parties do not claim that this alters their appeal in the instant matter.

In Jeremy D. Simpson v. State of Indiana , a 15-page opinion, Judge Crone writes:
Jeremy D. Simpson appeals his convictions for class A felony voluntary manslaughter and class D felony criminal recklessness. We affirm.

Issues: I. Did the State present sufficient evidence of probative value to allow the jury to negate Simpson's claim that he was legally justified in shooting the victim to defend a third person? II. Did the trial court commit reversible error in denying Simpson's request to recall a State's witness? III. Did the trial court abuse its discretion in refusing Simpson's jury instruction regarding the presumption of innocence and witness credibility?

NFP civil opinions today (5):

Term. of the Parent-Child Rel. of S.W., A.H., and A.S.H.; P.H. and A.H. v. Ind. Dept. of Child Svcs. (NFP)

Term. of the Parent-Child Rel. of Z.E.; and N.R. v. Marion Co. Office, Dept. of Child Svcs., et al. (NFP)

Paternity of E.P.; M.B. v. S.P. (NFP)

Lenell Burse v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)

Irvin L. Brimmage v. Review Board, and The Hapak Companies, Inc. (NFP)

NFP criminal opinions today (9):

Stephen Fitzgerald v. State of Indiana (NFP)

Willie Norman v. State of Indiana (NFP)

Matthew Emerson, Sr. v. State of Indiana (NFP)

Anton Williams v. State of Indiana (NFP)

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

Brandon Sampley v. State of Indiana (NFP)

Scott A. Tarter v. State of Indiana (NFP)

Nancy N. Bailey v. State of Indiana (NFP)

Earnest Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to Ind. App.Ct. Decisions

Law - "Internet advocate argues for open access to government law and policy" [More]

From the Daily Emerald, the independent daily newspaper of the University of Oregon, this report from CJ Ciaramella, dated Oct. 26th. Some quotes:

As part of its Open Access Week, the University libraries hosted a lecture on Friday by Carl Malamud, an influential Internet advocate who argued for open access to government law and policy. * * *

“Americans have always had an interest in reading the law,” Malamud said at the beginning of his lecture.

However, Malamud said government, especially state governments, have been stubborn to the point of obfuscation about putting their laws online, even going so far as to copyright them.

“How can we say we’re a nation of law, not a nation of men, if the law is hidden?” Malamud said.

Malamud came to Oregon’s attention when he recently came to the defense of University economics professor Bill Harbaugh. Harbaugh had scanned and uploaded the Oregon Attorney General’s Public Records and Meetings Manual, which the attorney general asserts copyright over and sells for $25, to the Internet.

Malamud uploaded the document to Public.Resources.Org and sent a letter to the attorney general arguing the document could not be copyrighted.

Another example of a “wrongheaded approach” to public documents is the Oregon Fire Marshal, which sells the Oregon Fire Code for $100. An online version of the code can be viewed online, but the document cannot be searched, printed or downloaded.

Last year, Malamud convinced the Oregon state legislature to drop an attempt to copyright the Oregon Revised Statutes.

However, Malamud said that Oregon is not particularly unusual in this regard. He said that 26 states assert some form of copyright over their laws and regulations.

Malamud said that open access to law also serves the public interest by making the statutes more user-friendly.

“Once you take down the fences around public domain, you not only get access, you get innovation.” Malumud said,

As an example, Malamud cited OregonLaws.org, a Web site started by a Lewis & Clark student that catalogs the Oregon Revised Statutes. However, unlike the state of Oregon’s Web site, the statutes are completely searchable, divided by subject and even include secondary sources such as news articles to give context to the statutes.

In a related story, Wired has a story dated Oct. 14th and headed "California County Hoarding Map Data Ordered to Pay $500,000." Kim Zetter writes:
A California county’s three-year battle to prevent a nonprofit group from obtaining public mapping data has ended disastrously for the county after it was ordered by a court to pay the group $500,000 in legal costs.

Last February, Santa Clara County, the heart of California’s Silicon Valley, was ordered to hand over the public records to the California First Amendment Coalition for a minimal duplication fee after initially trying to charge $250,000 for the data and then appealing to the federal government to designate the data a national security secret that couldn’t be released. This week the county paid out to the coalition twice the amount in legal fees that it had once hoped to rake in as profit for the data.

“It sends a very, very clear message that if they ignore their obligations under our open government laws, they better treat that as a real liability,” Peter Scheer, executive director of the coalition, told the San Jose Mercury News.

In 2006, the coalition used the state’s sunshine law to ask for a digital, data-rich map compiled by the county. Called a geographic information system, or GIS, parcel basemap database, the map shows the boundaries of 450,000 real estate parcels in Silicon Valley, along with overlaid aerial photos, street addresses and other data.

The county demanded $250,000 for the information, along with a signed nondisclosure agreement asserting that the coalition wouldn’t redistribute it, even though other California counties provide the same data for free or charge a minimal duplication fee.

So what about Indiana? The Fort Wayne Journal Gazette had this story yesterday, headed "Allen sits out statewide digital map." Ron Shawgo writes in a long story that begins:
A plan that officials say could save lives and improve economic development, disaster response, transportation, water quality and natural resources is receiving near statewide support – but not from Allen County.

Despite an appeal by the Indiana Department of Homeland Security and other state agencies for counties to help address what one official calls "our most pressing needs," Allen County has declined.

All of this over some maps.

More than 80 percent of the state’s counties have contributed computerized maps to the IndianaMap initiative. The statewide map is free to anyone, accessible on any office, home or field computer and has unlimited uses.

A study last year showed that the freely available electronic maps pay for their expense many times over in statewide economic development.

But for the kinds of maps the state wants – land parcels, addresses, roads and jurisdiction boundaries – Allen County charges $15,000.

A map shows that 16 other Indiana counties have declined, most notably Lake County.

The ILB has written about the accessibility of our building codes several times, including this entry from March 15th, headed "Indiana fire codes could be tougher" says Star. And they could be accessible, says ILB."

[More] Don't miss "San Francisco, the city that's open for data," from The Guardian. Also, "To do more with less, governments go digital" from the Oct. 10 NY Times.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to General Law Related

Ind. Courts - "Judge Nemeth issues 11th hour warning about St. Joseph County budget cuts"

Troy Kehoe reports today at WSBT South Bend in a long story that begins:

With a final budget vote less than 24 hours away, St. Joseph County leaders are facing a potential 11th hour change. Last week, they mandated nearly $1 million in cuts to dozens of county departments. Now, one department head says he may issue his own mandate if his funding isn't fully restored.

Probate Court Judge Peter Nemeth also oversees St. Joseph County's Juvenile Justice Center, or JJC. Under the original budget proposed by county leaders, he says his two departments stood to see about $1.4 million in cuts, including the jobs of about 20 total employees.

But, during a series of budget workshops last week county leaders agreed to "restore" most of that funding, including at least 9 of those positions in areas directly related to inmate care like psychiatry. But, they still planned to cut out most of the JJC's building maintenance department.

Nemeth--who acknowledged that most of his spending allotment was "restored"--says his budget is still being "unfairly targeted."

"The cuts currently in place that are being recommended total around $450,000, which is one-half of the total amount that's being cut. I don't believe it's equitable if we're bearing half the total cost of the cuts. Our budgets have already been cut 20% in the last two years. This just adds to that, and unfortunately, our business is not declining," Nemeth said.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to Indiana Courts

Law - Continuing on computer security problems: Kentucky county's funds stolen by online hackers

This August 25th ILB entry began:

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."

The problem apparently continues, unabated. Krebs' lengthy "Security Fix" column yesterday began:
Cyber criminals have stolen at least $40 million from small to mid-sized companies across America in a sophisticated but increasingly common form of online banking fraud, the FBI said this week.

According to the FBI and other fraud experts, the perpetrators have stuck to the same basic tactics in each attack. They steal the victim's online banking credentials with the help of malicious software distributed through spam. The intruders then initiate a series of unauthorized bank transfers out of the company's online account in sub-$10,000 chunks to avoid banks' anti-money-laundering reporting requirements. From there, the funds are sent to so-called "money mules," willing or unwitting individuals recruited over the Internet through work-at-home job scams. When the mules pull the cash out of their accounts, they are instructed to wire it (minus a small commission) via services such as MoneyGram and Western Union, typically to organized criminal groups operating in countries like Moldova, Russia and Ukraine. * * *

Companies that bank online enjoy few of the protections afforded to consumers. Individuals who have their online bank account cleaned out because of a password-stealing computer virus usually are made whole by their bank (provided they don't wait more than 10 business days before reporting the fraud). Businesses often are not so lucky and must take losses.

Chabinsky said businesses can insulate themselves from this type of fraud by doing their online banking from a dedicated, locked-down computer that is not used for everyday Web browsing or e-mail. That's because the malicious software that thieves use to steal online banking user names and passwords typically is installed when the recipient of a spam e-mail opens a poisoned attachment or clicks a link that leads to a booby-trapped Web site.

"What we're seeing is a trend towards [fraudsters] taking advantage of the weak link in the banking process, which is the customer," Chabinsky said. * * *

Below is a chart showing the victim entities that I have confirmed over the past five months.* * * Some victims are identified only by their industry or specialty to preserve their anonymity. If a victim's name is hyperlinked, readers can click the link to read a prior Security Fix blog post that includes mention of their specific incident.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to General Law Related

Courts - More on: "SCOTUS declines to set rule on drunk driving stops, letting stand a Virginia court ruling that police must actually see erratic driving – and not just rely on anonymous tips – to stop a suspected drunk driver"

Updating this ILB entry from Oct. 21st, the Washington Post today has this editorial, headed "'One free swerve': The Supreme Court lets stand a bad Virginia decision on drunken driving." This is the case where, as The Christian Science Monitor story quoted Oct. 21st begins:

The US Supreme Court has let stand a ruling in Virginia that police officers must personally observe erratic driving before stopping a suspected drunken driver.
From today's WAPO editorial:
Chief Justice John G. Roberts Jr. and Justice Antonin Scalia were the only two justices who would have heard the case. In a written explanation, Chief Justice Roberts noted that state and federal jurisdictions have issued conflicting rulings on the standards that law enforcement agents must meet when acting on anonymous tips; the Supreme Court, he wrote, should clear up these conflicts and set standards for how these matters should be handled in the future.

More important, he said that decisions like the one in Virginia essentially give drunken-driving miscreants "one free swerve" before they can be stopped by a police officer. "It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check," Chief Justice Roberts wrote.

The Washington Regional Alcohol Program (WRAP) and AAA Mid-Atlantic, two local groups with an interest in eradicating drunken driving, fear that some may now think that tips are futile. While it's a travesty that the Virginia high court has made it harder for police officers to act on such tips, it is not impossible. Citizens should continue to blow the whistle on suspected drunk drivers.

Posted by Marcia Oddi on Tuesday, October 27, 2009
Posted to Courts in general

Monday, October 26, 2009

Ind. Decisions - Briefs in Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana

Updating this ILB entry from Oct. 22, and this one from June 29th, here is what we have now:

Oral Argument: Set for Thursday, Oct. 29th at 9:45 AM. Oral arguments are accessible here.

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Decisions | Indiana Government | Indiana Law | Upcoming Oral Arguments

Ind. Decisions - Tax Court issues one today

The Indiana Tax Court issued one opinion, a NFP, today, Lyle Lacey v. Indiana Dept. of State Revenue (NFP).

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending October 23, 2009

Here is the Clerk's transfer list for the week ending October 23, 2009. It is two pages long.

One transfer was granted last week, Clint R. Beldon v. State of Indiana , see the May 21st ILB summary of the COA opinion here - 4th case.
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 Oct. 9, 2009 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, October 26, 2009
Posted to Indiana Transfer Lists

Courts - "In Astor Trial, a Lesson for Estate Lawyers "

In this long list of entries on the Brook Astor estate issues, the ILB has stated several times: "The Brooke Astor estate dispute promises to become the stuff of trusts and estates casebooks, moving along-side the Anna Nicole Smith estate fight." Today John Eligon of the NY Times, who covered the recent criminal trial, reports in a long story that begins:

While Brooke Astor’s son and a lawyer who worked on her estate face prison time after a jury convicted them of defrauding and stealing from her, experts say the verdict may be felt by others: namely, the people who make wills and the lawyers who help them.

The trial has certainly provided talking points for estate planning experts across the country; it has already been the topic at panels of trusts and estates lawyers in New York and other states. To them, the Astor trial is noteworthy not only because of the famous name, but also because the actions of trusts and estates lawyers were parsed in a criminal courtroom, something that usually happens in civil proceedings.

“It now is not unheard of for a district attorney to question the motives of some lawyers,” said Alexander D. Forger, a trusts and estates lawyer who testified for the prosecution in the Astor trial.

Although the conviction of Anthony D. Marshall, Mrs. Astor’s son, and Francis X. Morrissey Jr., a lawyer who worked on her estate, may not fundamentally transform the way wills are done, lawyers and those in the academic world say it is likely to force estate planners in New York and elsewhere to take extra precautions when balancing their clients’ wishes and competence.

The law generally requires a very low standard of mental capacity to execute a will, and there are few hard and fast rules that lawyers must follow when ascertaining a client’s competence.

Some experts said the Astor case could motivate lawyers to use additional safeguards to ensure that their clients are competent when there is any doubt.

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Courts in general

Courts - More on: SCOTUS looks at asset-forfeiture hearings, in a review of a 7th Circuit opinion

Updating this ILB entry from Oct. 14, check out this entry today in The Volokh Conspiracy. This is the Chicago case where the 7th Circuit ruled that the Constitution requires owners "to get a more timely chance to reclaim their property." It is now on appeal before the SCOTUS and the State of Indiana, via AG Zoeller, has joined a brief on behalf of Petitioner, arguing that the 7th Circuit's decision requiring that owners receive a more timely chance to reclaim their property should be reversed. For additional links, see the end of the Oct. 14th ILB entry.

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to 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):

Kimberly Mosley, et al v. Ibrahim S. Zabaneh, M.D., et al (NFP) - "Kimberly Mosley, as Personal Representative of the Estate of her mother, Betty Boyd, appeals the trial court's dismissal of her proposed complaint against Ibrahim S. Zabaneh, M.D., and Zabaneh Medical Corporation. Nearly nine months after her medical review panel submission was due, Dr. Zabaneh and his medical corporation filed a motion to dismiss the proposed complaint pursuant to Indiana Code section 34-18-10-14, which the trial court granted. Because the evidence shows that Mosley failed to comply with the schedule for submission of evidence as established by the chairman of the medical review panel and good cause has not been shown for her failure to do so, we conclude that the trial court did not abuse its discretion by dismissing Mosley's proposed complaint. We therefore affirm the trial court."

NFP criminal opinions today (1):

Donald R. Carlin v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Ind. App.Ct. Decisions

Environment - "Wasted regulations: Oversight of coal hazards largely left to those that produce them"

That is the headline of this story by Mark Wilson in the Oct. 24th Evansville Courier & Press. Some quotes from the lengthy story:

Millions of tons of coal combustion wastes are left over from power generation each year. Although some of it is used for other industrial purposes, more than 73 million tons of it was disposed in landfills and ponds in 2007, according to the U.S. Environmental Protection Agency.

Environmentalists long have argued that these disposal sites are hazards and that coal waste needs consistent federal oversight. Jeff Stant, director of the Environmental Integrity Project's campaign to regulate coal combustion wastes, said the utility industry has been resistant to such regulation, especially in the face of the costs for complying with air pollution regulations.

Five of the 100 largest disposal sites for coal combustion wastes are in Southwestern Indiana. And state or federal inspections appear to be lacking. * * *

But it took the December 2008 failure of a dam holding back a Tennessee Valley Authority coal ash pond in Kingston, Tenn., to fast-track the development of regulations — something the EPA now says it will have ready by the end of the year.

The Kingston dam failure spilled more than a billion gallons of coal ash into a nearby river and the surrounding countryside.

Stant, a former director of the Hoosier Environmental Council, has been advocating for stronger regulation of coal combustion wastes in Indiana and nationally since the late 1980s.

"It's too powerful of an industry and the quid pro quo is 'don't step on our toes when it comes to our waste.' That was what ultimately led to (the TVA failure).

Because the government has looked the other way and let the industry handle its waste," Stant said.

"Bottom line is it is out of site out of mind and they manage it as inexpensively as they can. There is probably far more contamination out there than we know because most states still don't have requirements that they do monitoring." Because the EPA currently considers coal waste as nonhazardous, oversight of its disposal has been left to a patchwork of varying state regulations.

But many in the utility industry say that ruling coal ash as a hazardous waste will squash efforts to use it beneficially in products such as cement and wallboard.

For instance, Indiana Michigan Power — a subsidiary of American Electric Power (AEP) — sold much of the fly ash from its Rockport, Ind., power plant until recently when the practice of blending its coal to meet other environmental regulations changed the ash's chemical makeup, said Mike Brian, company spokesman.

"AEP does not believe that any fly ash should be classified as a hazardous waste. It is going to curtail secondary markets for using it. That's the one concern that we have," Brian said.

A long companion story is headed "Coal ash disposal varies from company to company." It begins:
Here is a look at coal ash disposal sites at Tri-State generating stations based on available U.S. Environmental Protection Agency documentation and information provided by the companies. Most say they have had little, if any, inspections other than those by their staff or company-hired engineers. Most also either already are or are shifting to disposing of some of their ash in dry form in landfills instead of ponds.
Here is a list of ILB entries concerning coal ash.

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Environment

Environment - 2009 Edition of the Indiana Environmental Statutes now available

The 2009 edition of the Indiana Environmental Statutes, edited by Marcia J. Oddi, is now available.

The 2009 edition of the annual publication, the Indiana Environmental Statutes, is sponsored by the Environmental Law Section of the Indiana State Bar Association. It is a convenient desktop resource including Title 13 of the Indiana Code, plus the administrative orders and procedures act (AOPA) and numerous other related Indiana statutes. 604 pp.

The price is $30.00. The book can be ordered online, in singles or in quantity, directly from the printer -- you may see the "preview" and place your orders here.

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Environment

Catch-up: What did you miss over the weekend?

Stats for the ILB over the weekends fall to one-third or less of these during the week, although the ILB itself keeps puttering along. Sometimes the best posts occur over the weekend, when there is more time. Hence this new Monday feature - "What did you miss over the weekend?"

From Sunday, Oct. 25, 2009:

From Saturday, Oct. 24, 2009:

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/26/09):

Thursday, October 29th

Next week's oral arguments before the Supreme Court (week of 11/2/09):

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 10/26/09):

Tuesday, October 27th

Wednesday, October 28th

Thursday, October 29th

Friday, October 30th

Next week's oral arguments before the Court of Appeals (week of 11/2/09):

Next Tuesday, November 3rd

The past COA webcasts which have been webcast are accessible here, via the calendars

Posted by Marcia Oddi on Monday, October 26, 2009
Posted to Upcoming Oral Arguments

Sunday, October 25, 2009

Court - Lake County Illinois prosecutors "Turn Tables on Student Journalists "

Monica Davey has this long story in the Oct. 24 NY Times. It begins:

EVANSTON, Ill. — For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.

The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge.

Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.

Another quote:
If the courts find that Mr. Protess and the journalism school must turn over the student information, they risk being held in contempt if they refuse, said Dick O’Brien, a lawyer who is representing Northwestern.

But if the school gives in to such a demand, say advocates of the Medill Innocence Project and more than 50 similar projects (most involving law schools and legal clinics), the stakes could be still higher, discouraging students from taking part or forcing groups to devote time and money to legal assistance.

“Every time the government starts attacking the messenger as opposed to the message, it can have a chilling effect,” said Barry C. Scheck, a pioneer of the Innocence Project in New York, who said he had never seen a similar demand from prosecutors.

Posted by Marcia Oddi on Sunday, October 25, 2009
Posted to Courts in general

Courts - "Most state judges in the US must retire in 70s"

Rachael LaCorte of the AP has this lengthy story today -- a few quotes:

OLYMPIA, Wash. -- Chief Justice Gerry Alexander has written more than 330 opinions over the nearly 15 years he has served on Washington state's highest court, and the state's longest-serving chief justice doesn't expect to slow down in his final two years on the bench.

"As I sit here looking out through these eyes, I feel the same as I did when I became a judge. I think I have my wits about me," he said, laughing, "but maybe you should ask somebody else."

Alexander is set to retire at the end of 2011, the year in which he will reach the mandatory retirement age of 75 for judges in Washington. Alexander announced last month that he will step down next year from his post as chief justice and serve out the remainder of his term as an associate justice in order to ease the transition to his retirement.

Washington state is among the majority of states that require state judges to step down once they reach a certain age, varying between 70 and 75, depending on the state. Vermont has the highest age limit, at 90. Washington state's age limit was enacted in 1952, after voters overwhelmingly approved a constitutional amendment referred to them by the Legislature. * * *

Howard Eglit, a law professor at Chicago-Kent College of Law, said the age limit laws were enacted in many states "based in good measure on the assumption that increasing age carries with it declining intellectual ability."

"It's an inflexible rule which is harsh in one respect because it weeds out both the competent and the incompetent, but on the other hand is merciful, because it doesn't require people to be told 'you just are not competent anymore to do the job,'" said Eglit, who has written extensively about age discrimination in the workplace, including within the legal system.

The federal Age Discrimination in Employment Act, which bans mandatory retirement in all but a few circumstances, has been interpreted by the U.S. Supreme Court as not extending protection to older judges.

Nineteen states, including California, Nebraska and Maine, don't require state judges to step down in their twilight years. While Arkansas is included among those that don't have an age limit, judges there forfeit their benefits if they run for their seat past age 70. This past June, the Illinois Supreme Court tossed out judicial age limits there on technical grounds. And some states with mandatory age limits, including Washington, allow retired judges to serve on the bench in substitute roles.

There are no age limits for federal judges, who under the U.S. Constitution are appointed for life. Four members of the nine-member U.S. Supreme Court are over 70: Justice John Paul Stevens is the oldest at 89, Justice Ruth Bader Ginsburg is 76, and Justices Antonin Scalia and Anthony Kennedy are both 73.

ILB: In Indiana:
Judges of the appellate courts are appointed by the governor from a list of three names submitted by the state judicial nominating commission. After two years, appellate court judges are on the ballot for 10-year terms via a "yes/no" vote. There is no limit on the number of terms, but the retirement age is 75.
For more on Indiana , see this ILB entry from Sept. 4, 2006, headed "Means, 77, to continue as judge: He says age is no barrier to doing his job.." It touches on the retirement age for trial court judges in Indiana, and near the end of the entry, appellate judges.

Posted by Marcia Oddi on Sunday, October 25, 2009
Posted to Courts in general

Ind. Law - Attorney General Zoeller wants more authority over casinos and their funds

Eric Bradner reports in the Oct. 24th Evansville Courier & Press:

Indiana's attorney general is calling for a new law that would pry open the financial record books of organizations to which casinos, in order to keep promises of economic development, funnel some of their revenue.

In a long-standing requirement to offset what lawmakers consider the negative effects of gambling, Indiana casinos donate portions of their profits to local governments or organizations that promote economic development.

After a northwest Indiana for-profit organization that was the recipient of some of that money was alleged to have funneled large portions of the $16 million it collected to political cronies, efforts began to require beneficiaries of casino revenue to open their records for review.

State Attorney General Greg Zoeller renewed that call last week as he testified before the legislative Gaming Study Committee. * * *

The Indiana General Assembly requires casinos to enter what are called local development agreements with their host communities. As a result of that statute, casinos handed over about $14 million in profits last year.

  • Sometimes that means money goes directly to city or county government, as is the case with Evansville's Casino Aztar.

  • In other cases, such as Harrison County's Horseshoe Casino, the money is donated to nonprofit organizations. The Horseshoe has given $150 million to two community foundations in Floyd and Harrison counties since 1998.

  • And in only one instance — northwestern Indiana's Second Century Inc., which collected $16 million from an East Chicago, Ind., riverboat casino — the beneficiary is a for-profit corporation.
The problem, Zoeller says, is the Legislature only requires that the money donated by casinos go toward economic development, and the fact that nonprofit and for-profit corporations don't have to file extensive financial reports with the state makes it tough to police whether that goal actually is being achieved. * * *

He wants to require organizations that draw casino revenue to file what would amount to detailed versions of the Form 990, which already is required of nonprofit organizations.

Zoeller encountered some resistance from Rep. Trent Van Haaften, a Mount Vernon Democrat who is on the Gaming Study Committee and, as House Public Policy Committee chairman, is a top voice on gambling issues.

Van Haaften said he did not disagree with the idea of casting a skeptical eye on organizations that receive casino revenues, but that doing so could be a role better served by the Indiana Gaming Commission than the attorney general's office.

Van Haaften pressed Zoeller as to why, since local development agreements are not state contracts but rather part of the deal casinos make in order to gain a license, the attorney general's office would review beneficiary organizations' financial books.

He asked whether Zoeller's office planned future attempts to further increase its role in regulating casinos.

"I still have a concern with the 'lawman,' if you will," said Van Haaften, a former prosecutor himself, "playing judge and jury."

Van Haaften said he would have the Gaming Commission review financial reports made by beneficiaries of local development agreements, and then call on the attorney general if a problem is spotted.

Dan Carden reported in the Oct. 19 NWI Times:
In East Chicago, a slice of the city's LDA revenue used to go to East Chicago Second Century Inc., a for-profit real estate development corporation controlled by allies of former Mayor Robert Pastrick. Current Mayor George Pabey has since blocked distribution of LDA money to Second Century.

However, Second Century still refuses to disclose how it spent the more than $16 million dollars it received in casino revenue between 1997 and 2006.

That is inappropriate, said Zoeller, who has sued Second Century to get their spending records.

"Gaming has to be licensed by the state, and other gaming revenues flow back to the state, so it's a mystery why the Second Century board would be so secretive about how it uses gaming dollars," Zoeller said.

The Indiana Supreme Court ruled in April the attorney general's lawsuit seeking spending information can go forward. That case is pending in Marion County.

"Five years of litigation cost the taxpayers a lot of money. It's unnecessary if there's nothing to hide," said David Miller, a legislative liaison in the attorney general's office.

In the meantime, Zoeller said state lawmakers could simply approve a new law mandating disclosure of the information.

He proposed requiring the name, date, amount and purpose of every disbursement of more than $5,000 be reported to the attorney general's office and made public.

"I do think additional accounting and transparency go a long way to satisfy the public, as well as our office," Zoeller said.

The Attorney General issued this press release Oct. 19th re "his continuing support of a proposal to require public disclosure by any for-profit or nonprofit corporation that receives casino revenue through a Local Development Agreement or LDA.."

Posted by Marcia Oddi on Sunday, October 25, 2009
Posted to Indiana Law

Ind. Courts - "Bondsmen bailing out of the business: Recession, Marion County judges' new policy erode pool of customers"

Here is a story from Dan McFeely of the Indianapolis Star from Tuesday, Oct. 20th that the ILB nearly missed:

Bail bond agent Kate Sweeney used to thrive when the economy tanked. Usually when jobs disappear, crime goes up, and so does her business.

But these days, too many clients are asking for bail without the required collateral, such as a home or a car, diminishing bail bondsmen's customer base. And not helping matters is a new policy by Marion County judges setting less expensive cash bonds for minor offenses.

"The slow death of the bail bond industry is forcing me to make a change," said Sweeney, who has decided to get out of the business, Indiana Bail Bonds, which she runs with her father and a brother.

Bail bondsmen, or professional bail agents, are independent contractors backed by surety companies who post bonds for defendants, allowing them to get out of jail while awaiting trial.

"In the past, when things went bad, bail bonds were always OK because people still got arrested," said Sweeney, 38. "But with this latest crash, things sort of tanked."

She is not alone. Nationally, bail agents are hurting for business, and statewide, dozens of agents are bailing out of the field. * * *

Indiana has 383 licensed bail and recovery agents. About a third have until Oct. 31 to renew their licenses, according to the Indiana Department of Insurance, but already 40 have sent notice that they will not be renewing.

Bail bondsmen thrive as long as a steady stream of criminal defendants comes asking for bond insurance, which typically costs the defendants 10 percent of the bond amount and some sort of collateral security.

Johnson County, like many counties in Indiana, still requires surety bonds. But judges in Marion County are allowing cash bonds paid directly to the court -- 10 percent of the full bond with no collateral necessary, and nearly all of it refundable as long as the defendant shows up for court. * * *

Since the judges reworked the guidelines in the spring, the cash bond numbers are starting to rise, from 963 posted in March to 1,136 in May. Surety bonds decreased over the same period from 5,501 to 5,274.

"The increase in the number of those bonds has had a drastic effect on our bond business," said Leslie Sebring, a 44-year veteran owner of AAA Bailbonds.

He plans to survive, however, with his other business, United Surety Agents on the Northside, an umbrella insurer for more than 230 bail agents in 26 other states. "We are writing fewer bonds," he added, "but they are higher bonds."

Judges defend the move toward cash bonds, saying it's hard for unemployed criminal defendants to afford conventional surety bonds.

"We wanted to make sure we are not setting our bonds so high that we are overcrowding our jail," said Marion Superior Court Judge Robert Altice Jr. "Some people can't even afford a thousand-dollar bond."

Further, Altice said defendants can use their cash bond refunds to hire a private attorney -- who has the right to place a lien on the bond -- rather than rely on a public defender. "Anything we can do to lessen the workload for our public defenders is a good thing," Altice said.

The cash bonds are only for minor misdemeanor offenses. Major misdemeanors and all felonies -- crimes that carry the potential for stiffer fines and incarceration -- still command much higher bond amounts and require insurance by a bondsman.

Posted by Marcia Oddi on Sunday, October 25, 2009
Posted to Indiana Courts

Ind. Law - More on "Direct wine sale ban not about minors"

On Oct. 17 the ILB quoted from Dan and Krista Stockman's weekly "Uncorked" column in the Fort Wayne Journal Gazette, which in turn quoted from this Oct. 11th story in the Journal Gazette, reported by Niki Kelly, headed "State: 35% of retailers sold alcohol to minors: Excise police program uses youths ages 18 to 20."

Uncorked summarized the point of its long column:

When you hear lawmakers, wholesalers and lobbyists talk about shipping wine directly to consumers, all they’ll want to talk about is how important it is to keep alcohol out of the hands of minors.

On that single point, they are correct: It is important to keep alcohol out of the hands of minors. It’s something we take seriously enough that people who are not yet 21 cannot even see the Uncorked page on Facebook, though, of course, there’s no way to score wine there.

But in the debate over direct shipment of wine, it is also the largest red herring you’ll ever see.

Today, Bill Ruthhart of the Indianapolis Star also reports on the State Excise Police sting operation in a lengthy story. A quote:
Two of the Marion County citations have been issued to Village Liquors stores.

On Oct. 17, an Excise Police sting caught Village Liquors at 3612 W. 30th St. selling to a minor.

Ryan Cobb, the manager of that store, said he and the owner had heard the Excise Police were running stings from other liquor store owners and called the clerk on duty to stress that he card every customer.

Minutes later, a woman who is a regular customer came in with her daughter, Cobb said. She bought a case of 24-ounce Budweiser cans, and her daughter bought a single 24-ounce can.

Four hours later, Excise Police returned to the store to inform Cobb that his employee had sold to a minor.

"Our policy is if they look under 30 or if you suspect they even possibly could be underage, then card them," Cobb said. "I went back and watched the surveillance tape, and the daughter didn't look under 30, but I guess she was. Turns out she was 19."

Cobb said the mother returned to the store a few days later and said the Excise Police had recruited her and her daughter a week before in the store's parking lot.

However, Jennifer Fults, a public affairs officer with the Excise Police, said excise officers work only with underage youths contracted though the Indiana Prevention Resource Center, which hires the workers. Fults said they do not recruit decoys on site at a retailer.

The violation was the second of the year for the store, so it was fined $2,500 and will have to close for three to seven days.

"It was a big setup. These guys don't have anything better to do than to come in here and get people caught up so they can get a bigger paycheck?" Cobb said. "The sign on our door says clearly no one under the age of 21 should come in, and for a law enforcement officer to bring somebody in who is under 21 to set somebody up is ridiculous."

McMahan, the officer in charge of the Central Indiana district, said managers such as Cobb have no excuse.

"They all received notifications about the program before it started," he said. "The word is getting around, so they know about it, but they're still surprised when they're the one that gets caught."

Posted by Marcia Oddi on Sunday, October 25, 2009
Posted to Indiana Law

Ind. Courts - "Arson science on trial in Indiana courtroom: Evidence challenged in 1995 conviction"

A long and fascinating story today in the Chicago Tribune, reported by Jared S. Hopkins. It begins:

Since Kristine Bunch was convicted of setting a fire in her mobile home that killed her 3-year-old son, she has spent more than 13 years inside an Indiana prison.

But even before the 1995 fire, advances in fire science began to reshape what we know about fire. It altered how fire investigators do their job, using a scientific approach to replace the commonly held theories they depended on to determine if a fire was arson.

In the process, attorneys began to review and challenge old arson convictions from across the country. In perhaps the most controversial case, a series of reviews of the case against Cameron Todd Willingham, who was executed in Texas for a 1991 fire that killed his three daughters, found that the original investigation of the case was seriously flawed.

The same sort of review is playing out in the small town of Greensburg, Ind. Last week, a judge held a two-day hearing to decide whether Bunch, convicted in 1996, should receive a new trial.

Bunch's legal team -- attorneys from a Chicago law firm, Northwestern University's Center on Wrongful Convictions and Indianapolis attorney Hilary Bowe-Ricks -- contends that advances in fire science undermine the conviction.

"It was really clear to me after reading the record and looking at the science that she's innocent," said Chicago attorney and former federal prosecutor Ron Safer. "I've prosecuted arson cases. I know arsons. This is not arson."

William Smith, the Decatur County prosecutor who won Bunch's conviction, defended the original investigation and said the methods used were sound.

"What they're calling science is a random bunch of studies that are collected together to try to apply them to the facts," Smith said. "They're calling this new science, but it isn't. What they're calling new science is 'the scientific method' which is giving the same evidence new interpretations."

The 1996 conviction was not based on entirely on fire science. At the hearing, Smith recalled how Bunch's trial testimony that she couldn't enter the bedroom to help her son because of a shut door conflicted with testimony from others.

Bunch's lawyers hope that testimony from fire scientists and engineers will persuade Judge John Westhafer, who presided over Bunch's 1996 trial, to grant her a new trial. It's unclear when that decision will be made.

There is much more information in the Tribune story, and in these stories from the Greensburg Daily News, the first reported by Joe Hornaday and the second and third by Adam Huening:

Posted by Marcia Oddi on Sunday, October 25, 2009
Posted to Indiana Courts

Saturday, October 24, 2009

Ind. Law - "Old meth lab poisons dream home: State recordkeeping largely outpaced by makers of drug"

Angela Mapes Turner reports today in the Fort Wayne Journal Gazette that begins:

The headaches, muscle aches and breathing problems began shortly after she moved in, but Julie McCoy Sabatino was slow to blame her house for making her sick.

She was shocked to realize she should: Methamphetamines had been produced in the house, just months before she bought it.

Several years after the state began requiring counties to maintain records, Indiana’s accounting of its meth houses remains patchwork and incomplete.

And because those public records go back only a couple of years in a state where meth has been a major problem for more than a decade, they are no help to people like McCoy Sabatino.

“Indiana has a problem,” she said. “Indiana doesn’t care.”

One method of producing the highly addictive stimulant methamphetamine is to cook it in makeshift labs, using a volatile cocktail of chemicals that produces noxious fumes. Chemical and drug residue – considered hazardous materials – used in meth labs can infiltrate drains and ventilation systems and seep into any porous surface, such as walls, carpets and furniture.

The same state law that in 2005 regulated the sale of ephedrine and pseudoephedrine – putting the common decongestant medications behind pharmacy counters – also required law enforcement agencies that take down meth labs to report the addresses and some details to county health departments. * * *

Regulations since McCoy Sabatino’s home was contaminated in 2005 mean counties can do more to address the problem – or at least what they can with tight budgets and no teeth for enforcement.

When counties receive reports a meth lab was found, the common practice is to send a letter to homeowners with recommendations for cleanup.

Allen County asks for a certificate of decontamination from a certified inspector that is kept on file at the health department along with reports on where labs are found.

Dave Fiess, the county’s director of vector control and environmental services, said he has compiled the state police’s reports into a rough digital database that he can search when the public asks.

But like most counties, the data is complete only through 2007, when the state established procedures for the counties, with only a few entries before that date.

Other county health departments said their records remain on paper and require a manual search by interested homebuyers or real estate agents.

DeKalb County health inspector Bernie Sukala said he receives those requests occasionally. But even as the piles of paper grow with each year, Sukala said the county has no manpower or time to digitize the records.

“You do the best you can, is what it amounts to,” he said. “In these small rural counties, you do the best you can.”

For more, see this comprehensive ILB entry from July 14, 2009, headed "Illnesses Afflict Homes With a Criminal Past."

Posted by Marcia Oddi on Saturday, October 24, 2009
Posted to Indiana Law

Courts - House Judiciary Committee to hold the first congressional hearing on Iqbal Oct. 27th

David Ingram reports in The National Law Journal:

Ashcroft v. Iqbal, the 5-month-old U.S. Supreme Court decision that has become a thorn in the side of the plaintiffs bar, will get a Capitol Hill airing on Tuesday.

The House Judiciary Committee is scheduled to hold the first congressional hearing on the far-reaching May ruling, which raised the pleading standard for most civil complaints, making it more difficult to keep cases from being thrown out. * * *

With the future of thousands of potential lawsuits at stake, expect a battle royale between lobbyists for the trial lawyers and the business community.

Here is a list of earlier ILB entries on the Iqbal decision.

Posted by Marcia Oddi on Saturday, October 24, 2009
Posted to Courts in general

Ind. Gov't. - Star editorializes against redrawing Indy maps based on the 2000 census

The headline to the editorial is "Power play for political purposes." It reads:

Republicans on the City-County Council appear ready to waste $500,000 in taxpayers' money for purely political purposes at the same time the city has been forced to cut funding for basic services.

The council, controlled by its GOP members, included a half-million dollars in the 2010 city budget to redraw maps of political districts. Redistricting normally takes place after a Census is completed so that new maps better reflect population shifts. That can't happen next year, however, because new Census data won't be released until 2011.

Which means council Republicans are preparing to draw maps based on information collected in the 2000 Census.

Why the rush? State law blocks redistricting between November 2010 and November 2011, when the next election for council seats takes place. Republicans clearly are trying to push through district maps that are more favorable to them ahead of the 2011 election.

And they're not even shy about it.

"That's the name of the game,'' Council President Bob Cockrum told The Star's Francesca Jarosz. "It's the same thing (Democrats) did last time.''

Well, Democrats certainly aren't above resorting to rigging district maps to keep themselves in power. (Just look at the political games played in the Indiana Statehouse to understand that point.) But Cockrum is trying to rewrite the history of the most recent redistricting fight in Marion County.

In 2003, the Republican majority approved new district boundaries. After the plan was rejected by Democratic Mayor Bart Peterson, the dispute landed in the Indiana Supreme Court, which declared the Republican map to be too partisan. The court then drew its own map, which is still in effect.

The 2003 election featured closely contested races among well-qualified candidates in several districts. Democrats gained control of the council for the first time. The next election, in 2007, brought a reversal -- with Republicans regaining the majority.

Two elections. Two close results. Two parties alternating power. The system it would seem has worked as intended.

Council Republicans, however, are now trying to protect their turf through power politics. If they proceed, it would be not only a cynical waste of taxpayers' money but also an abuse of voters' trust.

See this ILB entry from May 23, 2004, headed "Indiana Law - Indianapolis Star editorializes against gerrymandering," which includes these quotes:
The Indiana Supreme Court decision referred to in the Star editorial, where the Court itself redrew Marion County city-county council districts itself, is Peterson v. Borst (Ind.S.Ct. 3/19/03), which begins:
At issue in this appeal is the validity of the redistricting plan for the City-County Council of the City of Indianapolis and of Marion County, Indiana ("Council"), which was adopted in the final judgment of the Marion Superior Court, sitting en banc. We reverse because we conclude that the Superior Court's adoption of a plan that has been uniformly supported by one major political party and uniformly opposed by the other is incompatible with applicable principles of both the appearance and fact of judicial independence and neutrality. Because of the emergency nature of this appeal, we adopt a plan that we have drawn with the consideration of only factors required by applicable federal and State law, and without consideration of party affiliation or incumbency. This plan will be in effect for the May 6, 2003, primary election unless a different plan is adopted by ordinance prior to March 26, 2003.
(Note that our Supreme Court acted to draw the maps itself only because it appeared that no time remained for any other option.)

Posted by Marcia Oddi on Saturday, October 24, 2009
Posted to Indiana Government

Ind. Courts - "Judge and prosecutor argue over sex offender plea"

Stan Maddux reports today for the Michigan City News-Dispatch:

LA PORTE - A plea agreement by a sex offender ignited friction Friday when La Porte Circuit Court Judge Tom Alevizos threatened La Porte County Prosecutor Rob Beckman with jail after the prosecutor shot back in defense of the agreement.

The plea calling for no jail was first strongly defended by La Porte County Deputy Prosecutor Beth Beckman, the prosecutor's daughter, to protect the victim from having to go to trial. "To force this child to rehash the horrible events that occurred to her on the witness stand in front of a roomful of strangers would be an absolute travesty at this point," Beth Beckman said.

Prosecutor Rob Beckman then quickly stood up to argue on behalf of the plea, which led to a stern warning from the judge.

"You are to sit down and you are not to get up and yell or you will be found in contempt," Alevizos shouted at Rob Beckman as he stood up from the bench with heated remarks.

Beckman fired back with a short but daring response about his rights as a prosecutor to fully argue the case. In this instance, Beckman said he was trying to explain why the plea works in favor of the now 17-year-old victim by sparing her from going to trial.

"The state of Indiana has an opportunity and right to make its record without interruption from the court," Beckman said.

Alevizos wasn't finished, telling Beckman in a firm tone "one more outburst and I will find you in contempt." The judge added, "I don't care if you are the prosecuting attorney. You understand that."

Beckman again responded, "If you do that's appropriate, judge. You have to do what you have to do."

Both men quickly regained their composure to resolve the case of Jeffrey Koonce after the victim in the courtroom requested by nodding her head that Alevizos accept plea.

Koonce, 38, of 6944 N. Wilhelm Road was convicted of Class D felony sexual misconduct with a minor. * * *

Alevizos was upset the plea agreement negotiated by the defense and prosecutors contained no jail time. He reluctantly accepted the plea and under the terms sentenced Koonce to one year of work release and three years probation.

In addition, Koonce, under the plea, does not have to register as a sex offender.

Alevizos asked Koonce if he felt it was fair that he not go to jail for "ruining this girl's life."

Koonce replied, "I feel I should get what I deserve."

The judge again emphasized he only accepted the plea at the wishes of the victim and wished her the best of luck in what could be a long emotional recovery. "God willing, one day, she will be able to move forward," Alevizos said.

See also this ILB entry from Oct. 9th headed "LaPorte judge tosses plea agreement in shooting, OWI cases" and this one from Aug. 10th headed "LaPorte Circuit judge announces he will reject any future plea agreement to reduce a felony to a misdemeanor."

Posted by Marcia Oddi on Saturday, October 24, 2009
Posted to Indiana Courts

Friday, October 23, 2009

Courts - "Were hundreds of criminals in Maryland given the wrong sentences because lawyers messed up a basic work sheet?"

That is the headline to this Oct. 22, 2009 story in Slate, reported by Ray Fisman. It is a long article that you will need to read closely, but here are a few quotes:

In early 2005, Emily Owens was halfway through her Ph.D. thesis in economics at the University of Maryland. Her topic: the deterrence effect of long prison sentences. She had just received data from the Maryland State Commission on Criminal Sentencing Policy on tens of thousands of cases that had appeared in the state's courts over the previous years, cases she hoped would help her close out her dissertation. But as she started working through the numbers, she came across thousands of inconsistencies and errors in the sentencing recommendations provided to judges by the commission. The errors ultimately translated into extra months and years of prison time for unlucky convicts and light sentences for lucky ones. What might have been a run of the mill economic analysis of crime and punishment turned into a shocking account of human error.

In addition to the usual information on defendants and their crimes, Owens' data set included sentence recommendations provided to judges to guide their punishment decisions. The sentencing guidelines—based on a work sheet that graded the severity of a convict's crime and his risk to society—were meant to make the administration of justice a little less arbitrary: Similar cases should lead to similar penalties.

To get acquainted with her data, Owens programmed the work sheet and its scoring system into her computer, fed in the case data, and expected to see her program spit out the set of sentences that had been provided to judges presiding over these cases. Most of the time, the two sets of numbers were the same. Yet no amount of checking and rechecking could account for a dismaying number of inconsistencies: In a little over 10 percent of cases, she just couldn't reconcile her figures with those of the commission.

After reviewing the original work sheets and consulting with the Sentencing Policy Commission's director, Owens concluded that neither her math nor her data were to blame. A system designed to make justice more predictable was producing errors in one out of every 10 trials. * * *

With the stakes so high—months and years of freedom gained or lost—how could Maryland's Sentencing Policy Commission have been so sloppy? For academic research—a matter trivial by comparison—it's common to have data entered independently by at least two typists, whose output is then cross-checked for accuracy. Yet it turns out that complacent bureaucrats weren't to blame for the sentencing mistakes. The work sheet had to be filled out by the state attorney prosecuting the case, with the final form signed and approved by the defense attorney (who, if he was doing his job properly, would have done the work sheet calculations independently). The commission had, by design, handed off the task of work sheet completion to parties that it assumed would have every incentive to get the numbers right, but it apparently never accounted for widespread incompetence in Maryland's legal profession.*
*The work sheet generated separate “scores” for the felon and his crime. The recommended sentence was then read off a table with offender and offense scores corresponding to the rows and columns of a grid. More than 90 percent of errors resulted from the person completing the work sheet entering the figure from a cell next to the correct one. (Using, say, a ruler to get to the correct cell would have prevented this.) The remaining errors came mostly from incorrect choice of criminal statute in calculating the offense score and from a handful of math errors (in operations that were literally as simple as adding two plus two).

Here is the 45-page paper that resulted. Note that is is not that new -- Oct. 2008.

The Slate story also links to this 16-page, Jan., 1999 US DOJ Special Report on "Truth in Sentencing in State Prisons."

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Courts in general

Ind. Gov't. - More on "Welfare officials to reveal post-IBM process" [Updated]

That was the headline to Mary Beth Schneider's report in the Indianapolis Star this morning. This afternoon she reports under the heading "Post-IBM welfare process cloudy" in a story that begins:

Bloomington, Ind. -- Secretary of State Anne Murphy had few answers for lawmakers today about how the state will transition to a new welfare delivery system now that the $1.34 billion contract with IBM has been canceled.

She only received the contracts with the 22 subcontractors yesterday, she told members of the State Budget Committee meeting at Indiana University, and said she expects to have more details when the committee meets again in December.

But she did describe how the new system is expected to work as it seeks to blend the best of the former caseworker system with the best of the modernized system. People seeking food stamps, Medicaid and Temporary Assistance to Needy Families (TANF) will be able to go into county offices for a face-to-face meeting, instead of being pushed to do so only by phone or computer. Those options, though, will remain for people who prefer to apply online or over the phone.

Instead of having cases routed through the two call centers, located in Grant and Lake counties, calls will be sent directly to the counties. And while those call centers will become "change centers," where workers can make basic changes to people's information, such as a new address, the actual cases will be managed by caseworkers in each county.

This brief story from the AP's Ken Kusmer.

[Updated 10/24/09] See also these stories today from the Fort Wayne Journal Gazette and the Louisville Courier Journal.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Indiana Government

Ind. Decisions - One case granted transfer Oct. 22nd

The Clerk's transfer list should be available probably Monday. Meanwhile, the ILB has received notice that transfer was granted yesterday in the following case:

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - "Judge rules IHSAA must let South Bend Washington senior play football"

Another ISHAA ruling in the news today, this one reported by Alicia Gallegos of the South Bend Tribune:

SOUTH BEND — A judge has granted a Washington High School senior the right to play football, ending a lengthy dispute between the teenager and the Indiana High School Athletic Association.

Special Judge for St. Joseph Circuit Court David P. Matsey filed his order approving the preliminary injunction about 10 a.m. today, according to court officials.

The order means Eric Woods, 17, is allowed to play in tonight's Washington High School football game and will be eligible for varsity sports in any future games.

The IHSAA previously ruled that Woods was eligible only for junior varsity sports, because they said his family was in violation of IHSAA rules when he transferred from Adams High School to Washington.

The ban meant Woods could not play varsity sports for one year from the time of his last varsity game at Adams. That 365 days is up on Oct. 31. But a court hearing on Tuesday centered around two games which come before that time and whether Woods should be allowed to participate.

In Matsey's ruling, he wrote that the “potential injury to Eric in preventing him from playing in the first two IHSAA games of the 2009 Sectionals football tournament greatly outweighs the potential threat and harm the preliminary injunction would inflict on the IHSAA.”

The Tribune included a link to the opinion, but it was nearly 2M and I had difficulty reading it online. I have reduced its size by half and reposted it here.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Ind. Trial Ct. Decisions

Courts - "Supreme Court of Kansas holds that a criminal defendant must have used actual force to justify a self-defense jury instruction"

Take a look at this entry just posted by How Appealing.

See also this entry just posted at The Volokh Conspiracy headed "Defending Yourself Against Attack by Threatening Force Is a Crime in Kansas."

The ILB has had a long list of entries on the use of deadly force in Indiana.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Dewayne Jones v. The Housing Authority of the City of South Bend, IN , a 13-page opinion, Judge Riley writes:

Appellant-Defendant/Counter-Plaintiff, Dewayne Jones (Jones), appeals the trial court's judgment in favor of Appellee-Plaintiff/Counter-Defendant, The Housing Authority of the City of South Bend (HASB), finding that HASB did not violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq., or the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., when HASB evicted Jones from his apartment. We affirm.

Jones raises two issues for review, which we restate as follows: (1) Whether HASB violated Title II of the ADA and the Rehabilitation Act of 1973 when they evicted Jones from his apartment for violating the housekeeping standards in the HASB lease; and (2) Whether Jones' due process rights were violated when HASB denied Jones a grievance hearing to respond to his eviction notice. * * *

By specific terms, the lease required Jones to “keep the Dwelling Unit and such other areas as may be assigned to the [him] in a sanitary and safe manner,” and “dispose of all ashes, garbage, rubbish and other waste from the Dwelling Unit in a sanitary and safe manner.” * * *

Jones' failure to meet his contractual duty to keep his apartment clean has disqualified him from being eligible to live at HASB; therefore, he is not otherwise qualified to live at HASB and was not evicted solely because of his disability. * * *

Jones also contends that his due process rights were violated when the HASB refused to conduct a hearing, concluding that he had filed his appeal of his eviction late by one day. * * *

Jones contends that under the Indiana Trial Rules, his grievance would have been timely filed. * * *

Therefore, it would be reasonable for Jones to count time similarly to the manner which our supreme court has provided for persons to count time in legal proceedings since there was no other guidance as to how he should calculate the time to file his grievance.

That being said, we fail to see how a remand would provide Jones any relief. “It is commonly understood that procedural due process includes notice and an opportunity to be heard.” * * * Jones has been provided full opportunity to present defenses to his eviction, first through the trial court, and now before us on appeal. Therefore, we fail to see how any remedy that we provide Jones for HASB's error would provide Jones relief, and Jones has failed to demonstrate how he was prejudiced by the procedural due process error.

Based on the foregoing, we conclude that the trial court did not error when it concluded that Jones was not evicted due to his disability and that Jones was not prejudiced by HASB's refusal to give him a hearing.

In Robert E. Lawrence II v. State of Indiana , a 9-page opinion, Judge Robb writes:
Robert Lawrence II was convicted of theft, a Class D felony, driving while suspended, a Class A misdemeanor, and found to be an habitual offender. Lawrence was ultimately sentenced to an aggregate term of three years with one year suspended for his convictions. The trial court found Lawrence’s pro se “request for appeal” was untimely and denied Lawrence’s subsequent petition seeking permission to file a belated notice of appeal. Lawrence now appeals, raising the sole issue of whether the trial court abused its discretion in denying him permission to file a belated notice of appeal. Concluding Lawrence’s notice of appeal was timely filed, we reverse the trial court. Further concluding the proper remedy is the filing of a belated appeal rather than a belated notice of appeal, we grant Lawrence permission to pursue a belated appeal. * * *

Lawrence’s notice of appeal was timely filed pursuant to the prison mailbox rule. He is hereby granted permission to pursue a belated appeal on the merits, which shall proceed in accordance with the attached order.Reversed.

NFP civil opinions today (2):

Jeffrey T. Curry v. Perfection Collision (NFP) - "In this case, Perfection Collision had Curry's truck for approximately two weeks. The delay was caused in part by the additional repairs Perfection Collision discovered after it tore the damaged area down that were supplemental to the original estimate, and the wait for State Farm to approve the supplemental repairs. This is not an unusual or blameworthy delay. Moreover, Perfection Collision satisfactorily completed the repairs to Curry's truck after State Farm approved the additional repairs. We therefore conclude that Curry's argument is not supported by the evidence.

"For all of these reasons, we conclude that the trial court's judgment in favor of Perfection Collision and against Curry on his counterclaim is supported by the evidence."

Lisa Blake v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP) - "Blake was not denied a reasonable opportunity to participate in the administrative hearing, and this court does not have the power to grant Blake a waiver of the repayment of her benefits. Affirmed."

NFP criminal opinions today (8):

State of Indiana v. William H. Nolan (NFP)

C.M.O. v. State of Indiana (NFP)

Carrie C. Stichter v. State of Indiana (NFP)

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

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

Kenneth Felder v. State of Indiana (NFP)

Steven Sandridge v. State of Indiana (NFP)

Terry Wayne Nugent v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Hamilton Avenue slaying trial" continues

Updating this ILB entry from Oct. 21, yesterday the trial concluded and Judge Robert Altice "found the defendant guilty Desmond Turner on all 23 counts." Today Jon Murray of the Indianapolis Star reported on his blog at 10:00 AM:

At the end of a hearing lasting just half an hour, Judge Robert Altice rules that a life sentence without the possibility of parole is merited for Desmond Turner for the seven murders on Hamilton Avenue in June 2006.

He goes through the state's proposed aggravating circumstances and finds that each has been proven beyond a reasonable doubt.

"The court has likewise considered the defense's sole mitigating circumstance, which is, for lack of a better term, the idea of residual doubt," Altice says. "The aggravating circumstances outweigh the mitigator beyond a reasonable doubt. The court is going to sentence the defendant to life imprisonment without parole."

But the judge doesn't impose that sentence today. He set a formal sentencing hearing for Nov. 20.

Austin Considine's coverage for True / Slant is available here.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Some fear charter schools may become sports powers"

Note the heading. Kyle Neddenriep of the Indianapolis Star had this lengthy story Oct. 1 that may prove to be prescient -- some quotes:

Charter schools often are proposed with a specific niche in mind: a curriculum built around a certain topic such as math or aerospace, or tailored toward specific students such as teenagers fighting addictions or those at particular risk of dropping out.

But what if a charter school specialized in sports? What if that school became an irresistible magnet for the city's elite athletes -- a prep school for sports that guaranteed college hopefuls a chance to play with the best, to be coached by the best and to dominate opponents?

It's the very scenario that some fear could severely damage the competitive fairness of one of Indiana's most treasured traditions -- high school basketball -- and it's one that some believe already is playing out in Gary.

The basketball program at Thea Bowman Leadership Academy, a K-12 school that opened in 2003, has elicited enough ill will in recent years that at least one coach is refusing to schedule games against the team.

It also has drawn the attention of officials.

Indiana High School Athletic Association Commissioner Blake Ress said charter schools have created an "odd scenario" in that they operate as public schools without district boundaries.

Because of that, he agrees there is reason to be concerned, but the association is at a loss for how to prevent it from happening.

"If students enroll at charter schools as ninth-graders," Ress said, "there is not a whole lot the IHSAA can do unless there is blatant recruiting and undue influence that has occurred. * * *

Marcus Robinson, the principal at Tindley, said that although he considers athletics and extracurricular programs important, there is no intent to create an athletic power.

"The biggest barrier to a charter school trying to do something like that is money," Robinson said. "Charter schools simply don't have the money to build facilities that might attract blue-chip athletes. Kids don't come to our school to play sports."

Herron High School, a liberal arts college preparatory charter school, recently attracted attention when Butler basketball recruit Chrishawn Hopkins transferred there from Manual and the school hired former Indiana University standout Sherron Wilkerson as basketball coach. Hopkins' athletic eligibility has not yet been approved by the IHSAA.

Herron, which does not have a home court and practices at Indianapolis Parks Department facilities, becomes eligible for IHSAA tournament play this year as a Class 2A program. Herron athletic director Vince Stennett, who is Hopkins' legal guardian, said the school has no athletic budget, no feeder program and no intention of becoming "another Bowman Academy."

"Even if you wanted to, I'm not sure you could do it," Stennett said. "There are only five or six other options in Gary, where there are 40 or 50 other options for schools here. In our case, we don't have a gym or a track or a baseball or softball field. You do the best you can. Athletics are part of the overall experience, but it's not a major focus here."

Herron Principal Janet McNeal said "it will never be our goal to build a major basketball program."

"I'd argue that we only have sports to offer our students a more well-rounded education," McNeal said. "It's been shown that students involved in other activities or sports will do better in school."

But others look at the ever-growing number of charter schools and the lure of sports fame and say it's only a matter of time before some coach or principal decides to create an all-star team.

"What would happen if an AAU program like Indiana Elite or Spiece got 40 or 50 kids together and opened up a charter school?" Boyd asked, referring to the state's prominent travel programs. "They'd win state every year. It's basically the same idea. What can you do? They're playing by the rules, but they're also playing by their own rules."

Today Kyle Neddenriep reported under the headline "IHSAA rules that Butler recruit Chrishawn Hopkins is ineligible for senior season at Herron: Organization says Butler recruit transferred for athletic reasons; senior must wait 365 days after last game at Manual." Some quotes:
Butler University basketball recruit Chrishawn Hopkins has been denied athletic eligibility for one year after transferring from Manual High School to Herron, a Downtown public charter school.

Indiana High School Athletic Association commissioner Blake Ress said the association ruled Hopkins had transferred to Herron for athletic reasons, thereby making the 6-1 senior guard ineligible for 365 days since his last game at Manual.

"I expect that they will appeal the ruling," Ress said.

Hopkins averaged 17.3 points in seven games last season at Manual after transferring back to the school from Las Vegas. He attended Manual as a freshman and sophomore.

With a strong showing in travel basketball tournaments this summer, Hopkins attracted offers from 15 Division I schools before accepting an offer from Butler.

Ress said "a few other" less high-profile basketball players were also denied eligibility after transferring to Herron from other schools. Ress said he had no comment when asked if Herron's program is under investigation.

Hopkins lives with Vince Stennett, Herron's athletic director. Stennett did not return a phone call for comment Thursday.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Indiana Government

Courts - More on: "Kentucky Supreme Court to hear online gambling case"

Updating this ILB entry from Oct. 21st, which includes links to a number of earlier entries, Stephene Steitzer of the Louisville Courier Journal reported yesterday on the oral argument before the Kentucky Supreme Court. Some quotes:

FRANKFORT, Ky. — Gov. Steve Beshear circumvented the General Assembly and misused the judicial system last year when he attempted to stop Kentuckians from gambling on the Internet, attorneys for the industry told the Supreme Court Thursday.

On the other side of the issue, administration attorneys contended that the state had the right to attempt to seize 141 gambling domain names, such as pokerstars.com.

A Franklin Circuit Court judge ruled for the Beshear administration in its lawsuit to seize the domain names, but the Court of Appeals overturned that decision. The case was then appealed to the Supreme Court.

The administration moved against the online sites, in part, out of concern that Internet wagering was hurting the state’s horse industry.

Three attorneys representing Web gambling trade groups and some of the individual domain names focused their arguments Thursday on how the administration's efforts violated state law.

They contended that domain names are not considered gambling devices as defined by state law, that the administration wrongly applied criminal statutes to a civil proceeding and that Franklin Circuit Court didn't have jurisdiction to allow the state to seize the domain names.

Justice Lisabeth Abramson questioned whether domain names could be defined as gambling devices since the statute was written before online gambling started and referred to such things as roulette wheels and poker tables.

“Aren't you just trying to use a 30-year-old statute that talks about tangible property to get to Internet gambling?” she asked.

Eric Lycan, who represented the administration, said the gambling device law should be interpreted broadly because the legislature clearly intended to ban casino-style gambling in the state.

Industry attorneys argued that the legislature could amend the law to make clear that it applies to Internet gambling but has not done so. The attorneys also argued that the administration wrongly used a criminal seizure and forfeiture law in a civil proceeding. * * *

Abramson raised a question that pointed to an issue the attorneys for the industry have long argued: Successfully seizing the domain names would not stop Kentuckians from gambling on the Internet because the gambling establishment would simply create new domain names.

“If they just adopt a new domain name under the same (Internet provider) address, then what?” she asked. “Do you start all over?”

Lycan said in response: “The commonwealth is well in its rights to do so if (the domain name operators) continue to use that device to violate the law of the commonwealth.”

During hearings in circuit court, industry attorneys also argued that the move violates the First Amendment to the U.S. Constitution and international trade agreements.

Fleischaker said those arguments would be pursued if the Supreme Court does not find violations of state law.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Courts in general

Courts - Even more on: "SCOTUS rejects 7th Circuit ruling re Joseph Corcoran"

An editorial today in the Fort Wayne Journal Gazette, headed "A proper reversal," concludes:

Here is the legal issue:

After Corcoran’s lawyers challenged his death sentence through state courts, which upheld the death penalty, Corcoran had the right to challenge it in federal courts. His lawyers asked a federal judge to throw out the death penalty on five grounds. The late U.S. District Judge Allen Sharp ruled in Corcoran’s favor on one challenge, the defendant’s Sixth Amendment right to a jury trial. He told state courts to resentence Corcoran to a penalty other than death.

Sharp failed to rule on the other four grounds; so only the one issue was before the federal appeals court when it reversed Sharp, leaving the other arguments unresolved in the federal courts. “The Seventh Circuit should have permitted the (federal) District Court to consider Corcoran’s unresolved challenges to his death sentence” when it reversed Sharp, the Supreme Court ruled.

One of those challenges concerns Corcoran’s mental illness. The Supreme Court in 2002 banned the execution of inmates with mental retardation, ruling the condition diminishes the culpability of the defendant. Judges have since struggled with determining to what degree mental illness similarly diminishes culpability.

The courts will now likely head down a path of deciding what level of mental illness makes a criminal ineligible for the death penalty.

Increasingly, elected officials and courts are deciding that the death penalty is so arbitrary, that the true guilt of too many defendants remains in question, that it cannot be fairly applied. Corcoran’s lawyers also raise other significant issues, including the constitutionality of the state’s death penalty law.

Corcoran brutally killed four people and deserves to spend the rest of his life in prison. But executing a man who is clearly and severely mentally ill in the name of the people has no place in a civilized society.

There are many earlier ILB entries on the Corcoran case - here is the list.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Courts in general

Ind. Decisions - "Superior Court in Marion County, Indiana, finds that Indiana Real Estate Commission's ruling on attendance at closing probably 'invalid or illegal.'"

That is the heading from this press release issued by Mentor Listing Realty, Inc:

Indianapolis, IN (PRWEB) October 23, 2009 -- In a stunning rejection of the Indiana Real Estate Commission's (IREC) campaign against discount real estate brokers, Judge Theodore Sosin issued a stay of the IREC's recent ruling against Mentor Listing Realty, the largest discount real estate broker in Indiana.

The IREC ruled against Mentor Listing Realty in April of 2009 concerning what services must be provided by a listing agent. The IREC wanted to impose duties on Mentor Listing Realty and other discount brokers beyond those required by Indiana law, including mandatory attendance in person at real estate closing.

"This is really a victory for the Indiana consumer," commented Brian Waters, President of Mentor Listing Realty. "For too long the Indiana Real Estate Commission has acted primarily to protect the business interests of traditional, full commission real estate brokerages, stifling competition and suppressing innovation in the real estate industry. It's no wonder that the Indianapolis area has the highest average real estate commissions in the country."

"The Indiana Real Estate Commission was created to protect the interests of consumers, not real estate brokers," continued Mr. Waters. "It is time for it to return to its original mission."

Had the IREC's April ruling been permitted to stand, it would have significantly increased the costs of discount real estate brokers, making them the less able to compete against traditional, full commission brokerages.

The stay was issued by Judge Theodore M. Sosin, Marion Superior Court, Civil Division, for Cause No. 49D01-0906-MI-030120, Brian Waters, Petitioner, versus Indiana Real Estate Commission, Respondent.

Mentor Listing Realty is a licensed real estate brokerage offering flat fee MLS listing services in Indiana and Illinois.

"Our service lets property owners list their homes on the REALTOR® owned Multiple Listing Service (MLS) for a single, flat fee of $399," said Brian Waters, President of Mentor Listing Realty. "Traditional brokers charge up to 3½% of the selling price of the home for this service. On a $500,000 home, Mentor Listing Realty can save a homeowner over $15,000 when they sell their home."

With Mentor Listing Realty, the home seller only pays a commission to the broker representing the buyer. "Since the buyer's broker gets his or her normal commission, we have not seen any resistance in the market place to our concept," said Mr. Waters. "The time to sell our listings is virtually identical to the time to sell traditional, full commission, listings."

Background: In 2006 the ILB had a number of entries on discount brokers, including this one from July 22, 2006 quoting an Inside Business Today story headed "Indianapolis-based Angie's List is asking the Indiana General Assembly to repeal or modify the state's new minimum services law."

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Welfare officials to reveal post-IBM process"

Mary Beth Schneider reports in the Indianapolis Star:

The State Budget Committee, a bipartisan panel of state representatives and senators, will hear more this morning on how the state's welfare system will work now that Gov. Mitch Daniels has canceled a $1.34 billion contract with IBM.

Anne Murphy, secretary of the Family and Social Services Administration, is to testify before the committee, which also includes State Budget Director Chris Ruhl, at the meeting that begins at 9:45 a.m. at Indiana University in Bloomington. * * *

he continued complaints from the public and legislators about long delays, erroneous rejections, lost paperwork and other issues prompted Daniels on Oct. 15 to cancel the contract with IBM.

But the state is continuing to work with Affiliated Computer Services of Dallas, which had been a subcontractor to IBM. Daniels has said the state will now have a "hybrid" welfare delivery system. The state will use ACS employees -- many of them former FSSA caseworkers who were transferred to the private sector when the IBM contract was signed -- to take the initial applications for food stamps, Medicaid and Temporary Assistance to Needy Families. But instead of being pushed to apply via computer or phone, which has proved unworkable for many, those applications will be taken as they were in the past, in person in a county office.

Murphy is expected to face questions today from legislators who want more details on how the new system will work, and also on how much the modernization effort has cost the state.

Lawmakers also are expected to raise concerns about the continued involvement of ACS. The man who was in charge of FSSA at the time the contract with IBM and ACS was negotiated was Mitch Roob, a former ACS executive who now is head of the Indiana Economic Development Corp.

Posted by Marcia Oddi on Friday, October 23, 2009
Posted to Indiana Government

Thursday, October 22, 2009

Ind. Decisions - Briefs in Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana? [Updated]

Updating this ILB request from earlier today, thanks to the Attorney General's office for sending the ILB their briefs in the Foundations of East Chicago case. Here is what we have so far:

[Updated 10/23/09 at 12:45 PM] I've now received additional briefs and will be adding them later today.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Ind. App.Ct. Decisions

Law - Dawn Johnsen nomination still caught in Senate delay

Indiana Universtiy Mauer School of Law prof Dawn Johnsen's nomination to head the Office of Legal Counsel is still stalled, reports this entry in the American Constitution Society Blog, that links to a letter sent by Wade Henderson, president of the Leadership Conference on Civil Rights (LCCR), to the Washington Post.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to General Law Related

Law - "‘Absolutely Wretched’: One Prof’s Take on the State of Legal Ed."

That is the heading to this new WSJ Law Blog entry by Ashby Jones.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to General Law Related

Law - More on "Harsh Words Die Hard on the Web": Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks

Updating this ILB entry from Sept. 6, 2008, Edmund H. Mahony of the Hartford Connecticut Courant reports today in a lengthy story that begins:

Two former Yale University law school students have quietly settled a high-profile lawsuit they brought against about two dozen anonymous authors who the students said defamed and threatened them by posting malicious falsehoods on an Internet message board.

The terms under which the suit was resolved are confidential, and lawyers representing the former students, Heide Iravani and Brittan Heller, would not discuss them. Court records and lawyers who followed the litigation said attorneys for the women were able to identify eight or nine of the anonymous posters and settled with some of them.

"We settled with a handful of folks," said San Francisco attorney Ashok Ramani, whose firm, Keker & Van Nest, represented the women at no charge. "Our clients are very pleased with how the case went and I have no further comment."

The women, who have completed law school and who did not respond to telephone inquiries, sued for monetary damages in U.S. District Court in Hartford, claiming defamation by anonymous posters to AutoAdmit, an Internet discussion site frequented by law students and used as a research tool by law firm recruiters. One of the women said in the suit that false material posted on AutoAdmit cost her a legal internship.

AutoAdmit advertises itself as "The most prestigious law school discussion board in the world." Many of the postings at the center of the suit took the form of crude sexual allegations.

When the women sued in 2007, they created a stir among experts in the emerging field of Internet law. Some speculated that a suit by two accomplished Ivy League students could create pressure to change existing law in a way that could impose greater accountability on people who post material on widely read Internet sites.

Internet sites such as Google and AutoAdmit operate under different rules from those that apply to printed newspapers and to TV broadcasts.

Individuals claiming to be victimized by falsehoods or defamatory statements published or broadcast by newspapers or TV stations can sue. But Congress, hoping to encourage the exchange or ideas on the Internet, enacted law in the 1990s that characterizes websites as intermediaries and protects those that carry defamatory postings from lawsuits. Victims are left with the daunting option of trying to identify and bring suit against anonymous posters.

Much of the litigation associated with the suit by the two law students turned on their efforts to identify such posters. But the confidentiality order imposed on any settlements in the case left Internet experts unwilling to speculate on what effect the suit may have on Internet civility.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to General Law Related

Ind. Decisions - Supreme Court issues one today

In Charles Rivers v. State of Indiana, a 4-page, 4-1 opinion, Chief Justice Shepard writes:

A jury found appellant Charles Rivers guilty of child molesting. There were two incidents, charged as three counts. On appeal, he challenges the sufficiency of the evidence and the appropriateness of his sentence. Based on the character of the offender and the nature of the offenses, we revise the sentences to be served concurrently, for a total of thirty years executed. * * *

After reviewing the sentence imposed, the nature of the offenses and Rivers’ character, we conclude that imposing Rivers’ class A advisory sentences to run consecutively is not warranted.

We affirm Rivers’ convictions and direct that his two thirty-year sentences be served concurrently. The trial court may issue an amended sentencing order and any other entries necessary to impose a revised sentence without a hearing.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without separate opinion.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One Indiana decision today from the 7th Circuit

In Frank Brunker v. Schwan's Home Service (ND Ind., Judge Moody), a 14-page opinion, Judge Rovner writes:

Frank Brunker sued Schwan’s Home Service, Inc., his former employer, for disability discrimination and failure to accommodate in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. On appeal he challenges the district court’s grant of summary judgment for Schwan’s, in which the court determined that Brunker was not disabled. He also challenges earlier rulings denying his motions to compel discovery and imposing sanctions on him for filing those motions. We reverse the grant of summary judgment, reverse the denial of a motion to compel, and vacate the award of sanctions. * * *

Accordingly, we AFFIRM in part, VACATE and REVERSE in part, and REMAND for proceedings consistent with this opinion. Brunker should be allowed additional discovery as we have outlined above. Circuit Rule 36 shall apply on remand.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Moussa Ousmane v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Briefs in Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana?

The oral argument in Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana is next Thursday, Oct. 29th (see writeup from Monday here).

The ILB would like to post all the briefs. My preference would be OCR files, because they are so much smaller, but scanned documents also are welcome. Thanks!

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Jeff Council takes steps to revise sex offender ordinance"

The ILB had a long entry Oct. 8th on the Jeffersonville City Council's preliminary action to revise the city's sex offender ordinance. Today Debbie Harbeson, described by the Jeffersonville News & Tribune as "local columnist," has this must-read column:

The Jeffersonville City Council still doesn’t get it. They still pretend that a law banning known sex offenders from parks will protect your kids.

They have obviously not taken my advice and educated themselves about this issue because they still won’t admit that the park is not where kids get in trouble with sex offenders.

They also won’t admit they were completely wrong in how they handled the Eric Dowdell case. Dowdell is the dad who tried his best to follow their new ordinance so he could get an exemption to go watch his son play baseball.

I bet you don’t even remember all the steps this case went through, which is usually what happens in these situations because people simply get fatigued and quit paying attention.

But I’m still watching, so let me refresh your memory. It started in Jeffersonville City Court, and then moved to Clark County Circuit Court to Clark County Superior Court to the Indiana Court of Appeals.

The city tried to take it to the Indiana Supreme Court, but this court declined to hear it, so in the end, the city lost. Now Jeffersonville is spending more time and money to rewrite the ordinance.

I tried to convince them to just leave Dowdell alone, but I failed. Sorry. And if you review the above list, you’ll note that this battle involved more than just city court, so everyone reading this helped pay for this. Sorry again.

Is this what people mean when they tell me we need a monopolized government-funded court system? To pay for a city to use the court system rather than admit their mistakes is one of those essential services we’re supposed to be thankful for?

What I’d really like to know is, when a city council and its lawyers go overboard and create extra costs and waste time in the court system, why aren’t they held accountable somehow? Could it be that one of the reasons we see such blatant misuse of the system is precisely because there are no specific accountability measures on the government side?

I guess the best we can do is to protect our children from ever getting near these people so they can’t corrupt them with their misguided ideas of right and wrong.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Indiana Law

Ind. Courts - An interesting side note to yesterday's COA argument in Terre Haute

Yesterday's Court of Appeals' oral argument in the case of Brea Rice v. State of Indiana was held at Indiana State University in Terre Haute. Rachel Wedding McClelland wrote this story for the Terre Haute Tribune Star. An interesting snippet from the story:

While the focus of the day's events was designed to help inform students about the legal process, the event drew a broader crowd that ironically included Vigo County Superior Court Judge David Bolk and Terre Haute Mayor Duke Bennett.

Bolk's December 2008 decision in a case that questioned Bennett's eligibility to run for Terre Haute mayor was one of several highlights in a 19-month legal case that made its way through the appellate court. That battle ended in June when the Indiana Supreme Court ruled in Bennett's favor - effectively allowing him to retain his position.

Bennett attentively watched the proceedings Monday. At the conclusion of the arguments, Baker directly addressed the crowd and acknowledged Bolk's and Bennett's presence.

Bennett stood and publicly addressed the judge, saying his own legal battles had piqued his desire to see the state court in action at ISU.

"I've had an opportunity to learn quite a bit about the Indiana Appeals Court in the last few months," Bennett said, chuckling. "It's much better to be a spectator."

Of the approximately 150 students who gathered to watch the appellate process Monday, several told the judges they aspire to attend law school and work in the legal field.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Indiana Courts

Courts - "Courts - Still more on: SCOTUS rejects 7th Circuit ruling re Joseph Corcoran"

Updating this ILB entry from yesterday, Ashley Smith of the Fort Wayne News-Sentinel has this story today, headed "Convicted killer Corcoran's case heads back to appeals court." Some quotes:

The fate of convicted quadruple murderer Joseph E. Corcoran, who was originally sentenced to death, is still unclear as his case continues to circle the legal system.

The U.S. Supreme Court ruled Tuesday that the federal appeals court failed to examine all arguments in Corcoran’s challenge to his death sentence. To remedy this, the Supreme Court is sending the case back to the appeals court for a new ruling. * * *

The case is now back in the hands of the 7th U.S. Circuit Court of Appeals, which will either decide to rule itself or pass judgment to the lower U.S. District Court. Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller, said it could take weeks or months to make that decision, which is a bit of a letdown for the Attorney General’s Office.

“We are pleased that the court upheld that (the appeals court ruling) is constitutional,” Corbin said. “But we are disappointed that additional litigation is needed before this process is concluded.”

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Indiana Decisions

Environment - "Environmentalists divided over wind farm, endangered bats"

An earlier ILB entry on wind turbines and the Indiana bat was: "Indiana bat endangered by wind farms?" from June 9, 2009.

This long story from the Washington Post, by Maria Glod, is dated Oct. 21 and headed "Environmentalists divided over wind farm, endangered bats." It begins:

GREENBRIER COUNTY, W.Va. -- Workers atop mountain ridges are putting together 389-foot windmills with massive blades that will turn Appalachian breezes into energy. Retiree David Cowan is fighting to stop them. Because of the bats.

Cowan, 72, a longtime caving fanatic who grew to love bats as he slithered through tunnels from Maine to Maui, is asking a federal judge in Maryland to halt construction of the Beech Ridge wind farm. The lawsuit pits Chicago-based Invenergy Wind LLC, a company that produces green energy, against environmentalists who say the price to nature is too great.

It is a rare green vs. green case, and it's scheduled to go to trial Wednesday in U.S. District Court in Greenbelt.

It is the first court challenge to wind power under the Endangered Species Act, lawyers on both sides say. With President Obama's goal of doubling renewable energy production by 2012, wind and solar farms are rapidly expanding. As they do, battles are being waged to reach the right balance between the benefits of clean energy and the impact on birds, bats and even the water supply.

At the heart of the Beech Ridge case is the Indiana bat, a brownish gray creature that weighs about as much as three pennies and, wings outstretched, measures about 8 inches. A 2005 estimate concluded there were about 457,000 of them, half the number as when they were first listed as endangered in 1967.

More from the story:
The case probably will come down to a battle of bat experts.

There is no question turbines in other locations have killed tens of thousands of bats. Some strike blades. Others die from a condition known as barotrauma, similar to the bends that afflict divers. It occurs when the swirl of the blades creates low-pressure zones that cause the bats' tiny lungs to hemorrhage. Scientists and the industry are seeking ways to lessen the kills, including stopping the turbines at certain times or using sound to deter the bats.

But the habits of Indiana bats largely remain a mystery to scientists. They are so small that only recently has the technology been available to produce devices small enough to track their movements.

An AP story by Alex Dominguez, also dated Oct. 21, reports on the case, and begins:
GREENBELT, Md. — A proposed West Virginia wind power project will harm a tiny, endangered bat and its developers should be should be required to obtain permits under the Endangered Species Act, attorneys for two environmental groups argued Wednesday in federal court.

The developers admit bats will be killed by the turbines, but refuse to acknowledge the endangered Indiana bat will be among them, plaintiffs attorney Eric Glitzenstein argued in his opening statements.

"Is there some reason to think Indiana bats will escape the fate" of the other bats expected to be killed, Glitzenstein asked District Judge Roger Titus, who is hearing the bench trial.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Environmental Issues

Ind. Decisions - Oral argument this morning on use of "scoring models" in sentencing

The oral argument before the Supreme Court in Malenchik v. State is this morning. This is the case where the Court asked for amicus briefs on the use of "scoring models" in sentencing. Here again is the writeup:

9:45 AM - Anthony Malenchik v. State - Malenchik pleaded guilty to a class D felony and was adjudged to be an habitual offender. The Tippecanoe Superior Court sentenced him to six years. The Court of Appeals affirmed. Malenchik v. State, No. 79A02-0902-CR-133 (Ind. Ct. App. Jun. 5, 2009) (unpublished mem. decision), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Relying on Rhodes v. State, 896 N.E.2d 1193, 1195 (Ind. Ct. App. 2008), trans. not sought, Malenchik argues the trial court abused its discretion by considering "scoring models" (in this case, the Level of Service Inventory-Revised ("LSIR") and Substance Abuse Subtle Screening Inventory ("SASSI")) in determining the sentence.

[Note: Here is the COA opinion. This is the case in which the Supreme Court called for amicus briefs on the use of scoring models, see ILB entry here. The briefs in the case have been collected and posted by the ILB, they are available here and here.]

Watch the oral argument online here, live at 9:45 AM, or later.

Posted by Marcia Oddi on Thursday, October 22, 2009
Posted to Upcoming Oral Arguments

Wednesday, October 21, 2009

Courts - "SCOTUS declines to set rule on drunk driving stops, letting stand a Virginia court ruling that police must actually see erratic driving – and not just rely on anonymous tips – to stop a suspected drunk driver"

Warren Richey of The Christian Science Monitor has the story here. It begins:

The US Supreme Court has let stand a ruling in Virginia that police officers must personally observe erratic driving before stopping a suspected drunken driver.

On Tuesday, the high court declined to take up an appeal involving a Richmond motorist who was pulled over by a police officer based on an anonymous tip that he was driving under the influence of alcohol.

The issue in the case, Virginia v. Harris, was whether the officer was justified in confronting the driver with a roadside sobriety test, or whether he should have waited until Harris' driving gave rise to a reasonable suspicion of drunk driving independent of the anonymous tip.

The case stems from a December 2005 telephone call received by police. The caller said that an intoxicated driver named Joseph Harris was driving an Altima, southbound on Meadowbridge Road in Richmond. The caller gave a partial license plate number.

More from the story:
At trial, Harris' lawyer argued that the charge should be dropped because the police officer lacked the level of reasonable suspicion needed to justify the traffic stop. The trial court rejected the argument and Harris was convicted and sentenced to serve 90 days in prison. A state appeals court affirmed the decision.

The Virginia Supreme Court voted 4-3 to throw out the conviction. The state high court said the anonymous tip did not provide enough evidence of criminal wrongdoing to overcome Fourth Amendment protections against unreasonable searches and seizures.

The police officer must personally observe criminal activity before an investigative stop is justified, the Virginia court ruled.

The Virginia attorney general's office appealed the decision to the US Supreme Court, urging the high court to overturn the opinion and make clear that in cases involving suspected drunk drivers, police officers are justified in conducting a brief traffic stop.

The Supreme Court turned down the appeal without comment. Chief Justice John Roberts filed a dissent, joined by Justice Antonin Scalia.

Chief Justice Roberts said a sharp disagreement had emerged in federal and state courts over this particular Fourth Amendment issue. Most courts have upheld the police stop, but some have ruled for the motorist. "The conflict is clear and the stakes are high," he wrote.

"The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can legally be pulled over by police," Roberts said.

Here is David G. Savage's coverage in the LA Times.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Courts in general

Environment - "EPA Proposes Withdrawal of Bush-Era Air Toxics Assessment "

Robin Bravender reports for the NY Times late today in a lengthy entry that begins:

U.S. EPA has proposed withdrawing part of a George W. Bush-era air toxics regulation, saying the rule may not accurately characterize the risk posed by petroleum refinery emissions. [ILB emphasis] * * *

Former EPA Administrator Stephen Johnson signed a final rule (pdf) for the petroleum refining sector just days before the Bush administration left office. The rule -- issued under a court-ordered deadline -- would have retained the 1995 air toxics standards for refineries, requiring no additional controls or toxic-pollution reduction measures. Environmentalists argued that the risk assessment was based on estimates that drastically underestimated refineries' toxic emissions.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Environment

Courts - "Kentucky Supreme Court to hear online gambling case"

Updating a long list of earlier entries, the most recent from Feb. 1st of this year, Stephenie Steitzer of the Louisville Courier Journal reports this afternoon in a long story that begins:

FRANKFORT, Ky. — Online gambling proponents say Gov. Steve Beshear is moving against a national tide with his effort to block Kentuckians from visiting Internet casinos.

Attorneys for the administration will argue before the Kentucky Supreme Court Thursday that the state had the right to attempt to seize 141 gambling domain names last fall. A Franklin Circuit Court judge upheld the move, but the Court of Appeals overturned that decision.

At least three states — California, Florida and New Jersey — are studying the idea of regulating and taxing some form of online gambling, said Joe Brennan Jr., chairman of the Interactive Media Entertainment & Gaming Association, a Washington-based industry group.

And Rep. Barney Frank, the Massachusetts Democrat who is chairman of the House Financial Services Committee, is pushing a bill that would do the same at the federal level. The bill, which is before Frank’s committee, has attracted 62 co-sponsors, including some Republicans.

“In the statehouses there is more interest in online gambling than there ever has been in the past,” Brennan said. “States need to find ways to fill in budget gaps.”

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Courts in general

Environment - More on: "BP permit must be rewritten: State may not have fully assessed new emissions"

Gitte Laasby reports in the Gary Post-Tribune today in a long story with the headline "Environmentalists vow to halt BP construction." Some quotes:

MERRILLVILLE -- BP could be forced to halt construction on its Whiting refinery if the company and the Indiana Department of Environmental Management lowballed air pollution as much as environmentalists allege.

Environmentalists say IDEM allowed BP to increase air pollution without the pollution control equipment required by the Clean Air Act. They vowed Tuesday to do what they can to stop construction while BP puts in the best available pollution controls.

Last year, environmental groups petitioned the U.S. Environmental Protection Agency to object to BP's air permit, blasting BP and IDEM for not counting up to thousands of pounds of emissions from a new coker and from flares -- tall chimney-like structures that release gases.

On Monday, the EPA backed up most of environmentalists' arguments about underestimated emissions and ordered IDEM to re-count emissions and rewrite BP's operating permit within 90 days.

Environmentalists had already filed three appeals of the construction permit with similar objections to the state's Office of Environmental Adjudication, a court that reviews IDEM's permit decisions. Now they are making sure the judge knows about EPA's decision.

"We will formally notify OEA concerning this decision. The form of how we'll do that and what it'll mean is all still under discussion," said Ann Alexander, senior attorney with the Natural Resources Defense Council, one of the petitioners.

If it's necessary to completely rewrite the operating permit, the virtually identical construction permit may be considered invalid, too, and stop work.

OEA environmental law judge Mary Davidsen said she is aware of EPA's decision and that a party in the state case could file the order to support their case, which may change the date of the scheduled hearing on April 12.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In State of Indiana v. James S. Hobbs IV , a 9-page opinion, Judge Kirsch writes:

The State appeals from the trial court's sua sponte order excluding from evidence fruits of a warrantless search of James S. Hobbs IV's (“Hobbs”) vehicle and the subsequent dismissal of the charges of possession of marijuana and possession of paraphernalia, both as Class A misdemeanors, filed as a result of that search against Hobbs. The State presents the following restated issue for our review: whether the trial court erred by finding that the warrantless search of Hobbs' vehicle, conducted subsequent to his arrest inside his place of employment on an outstanding felony warrant, violated Hobbs' constitutional right to be free from unreasonable search and seizure both under the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution. We reverse.
NFP civil opinions today (0):

NFP criminal opinions today (7):

Raul Perez v. State of Indiana (NFP)

Kimberly J. Payne v. State of Indiana (NFP)

Anthony Ballinger v. State of Indiana (NFP)

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

Thomas Pica v. State of Indiana (NFP)

Alicia Stelzel v. State of Indiana (NFP)

Kimberly J. Payne v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Ind. App.Ct. Decisions

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

In Fannon v. Guidant Corp. (SD Ind., Judge Barker), a 17-page opinion, Judge Wood writes:

This case involves the claims of a plaintiff class that believes the defendant corporation defrauded them. The class asserts that the corporation knew that it had flawed products, but in the face of that knowledge made false or misleading public statements about the products and about a pending merger. In addition, the plaintiffs charge, the individual defendants sold nearly $89 million in company stock during the period covered by the class’s allegations. The district court dismissed the case on the pleadings with prejudice, concluding that the class complaint failed to raise the strong inference of scienter required by the Private Securities Litigation Reform Act (“PSLRA”) and Rule 9 of the Federal Rules of Civil Procedure. The court also rejected the plaintiffs’ motion under FED. R. CIV. P. 59(e) to reconsider based on newly discovered evidence, and their related motion under FED. R. CIV. P. 15(a) to amend their complaint. * * *

On appeal, the plaintiffs have limited themselves to three principal arguments: first, that the district court abused its discretion by immediately dismissing their first consolidated complaint with prejudice (rather than without prejudice, so that the plaintiffs could try again to submit a legally sufficient pleading); second, that the court abused its discretion when it denied their motion for leave to amend their complaint; and finally, that it abused its discretion by denying their motion under Rule 59(e) to reconsider its dismissal. Notably, the plaintiffs have not urged us directly to review the district court’s assessment of the legal sufficiency of their complaint, and so we do not have any issue before us that we review de novo and we need not again consider the standards for pleading a securities fraud case. Instead, each of the rulings before us is one that lies within the district court’s discretion, and our review is deferential. With that in mind, we conclude that the district court did not abuse its discretion, and we therefore affirm its judgment. * * *

We prefer not to concern ourselves with waiver, as it makes no difference to the outcome. The entry of a final judgment under Rule 58 is a watershed point in any litigation. Rule 15(a) is silent about any period after final judgment. But there are two rules of civil procedure that expressly address this phase of the suit: Rule 59 and Rule 60. Those rules logically affect all the rest of the rules directed to proceedings in the district courts. The district court correctly assessed whether the plaintiffs were entitled under the standards of Rule 59(e) to have the judgment altered or amended. As we said in Hecker, “[o]nce judgment has been entered, there is a presumption that the case is finished, and the burden is on the party who wants to upset that judgment to show the court that there is good reason to set it aside.” 556 F.3d at 591. The plaintiffs here did not meet that burden.

We AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Hamilton Avenue slaying trial" continues

Updating earlier ILB entries, the "Hamilton Avenue slaying trial" continues. Jon Murray reports today in the Indianapolis Star under the headline "Judge, attorneys visit scene of '06 slayings: Altice, others sought perspective of witnesses in Hamilton Ave. trial." Austin Considine reports today for True / Slant in a story headed "Eight things I would like to know before the Desmond Turner murder trial ends."

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Indiana Courts

Law - "Facebook, MySpace Divide Along Social Lines"

Given the ILB's recent entries about MySpace, this report I listened to on NPR this morning was really interesting.

Also interesting, this report by Karen Sloan of The National Law Journal, headed "Professor Wants Law Students to Think Before They Tweet."

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to General Law Related

Courts - More on "State of Washington federal judge shields signatures in gay-rights referendum"

The ILB entry from Sept. 13th includes this quote from the NYT:

The case is the latest filed by a conservative lawyer, James Bopp Jr., seeking to stop the publicizing of the names of those who oppose same-sex marriage and other gay rights initiatives. In January, Mr. Bopp argued — unsuccessfully — for a preliminary injunction protecting the names of the donors behind Proposition 8, which outlawed gay marriage in California. The donors names were released, though Mr. Bopp continues his legal challenge.
Yesterday the Washington Post published this AP report by Rachael La Corte. Some quotes:
OLYMPIA, Wash. -- The U.S. Supreme Court on Tuesday temporarily blocked Washington state officials from releasing the names of people who signed referendum petitions to bring expanded rights for gay couples up for a public vote in November.

The court's action maintains a hold placed Monday by Justice Anthony Kennedy, who temporarily blocked a federal appeals court ruling that had ordered the release of the names. Justice John Paul Stevens was the only member of the court who indicated he would have turned down the stay request.

The court said its order would remain in effect while it decides whether to take up a request by Protect Marriage Washington, the group that wants to reverse the ruling by the 9th U.S. Circuit Court of Appeals.

Referendum 71 asks voters to approve or reject the so-called "everything but marriage" law, which grants registered domestic partners the same legal rights as married couples. While most domestic partners are gay and lesbian couples, under state law opposite-gender seniors also can register as domestic partners.

Conservative Christian groups that sponsored R-71 want to keep the signed petitions out of public view because they fear harassment from gay-rights supporters, some of whom have vowed to post the names of petition signers on the Internet.

The conservative groups lost a fight to keep the identities of their campaign donors secret. * * *

James Bopp, Jr., the lead attorney for Protect Marriage Washington, issued a statement Tuesday saying that the Supreme Court "took a large step forward today in protecting the rights of citizens who support a traditional definition of marriage to speak freely."

"No citizen should ever have their personal property destroyed or receive death threats for exercising their right to engage in the political process," he said.

Rick Hasen of Election Law Blog writes about the SCOTUS action here. He notes:
The stay remains in effect until a petition for cert. is considered in timely fashion, with the result being that the information will not be disclosed until (at the least) after the election. That is somewhat problematic, not for formal mootness grounds, but because the interests in disclosure are different before and after the election.
He also clarifies that "The Washington case differs [from the California Prop. 8 case] in that these are ballot measure signers, not contributors."

Finally, from the State of Washington Olympian, an editorial published Oct. 19, before the SCOTUS acted -- it begins:

The 9th Circuit Court of Appeals in California restored the integrity and legal validity of the state’s Public Records Act last week in a ruling that open government advocates eagerly awaited.

The three-judge panel reversed a ruling from U.S. District Court in Tacoma by Judge Benjamin Settle, who had opined that the state didn’t have to release the names of voters who signed petitions to place Referendum 71 on the Nov. 3 ballot.

The appeals court ordered public release of the petition sheets as public records, striking a blow for open, transparent government and brushing aside a major challenge to the constitutionality of the state’s Public Records Act.

Referendums and initiatives are part of the state’s open political process, a very public act that allows citizens to participate directly in law-making. When someone signs a petition to place a referendum or initiative on the ballot, they are participating in that open legislative process, not signing some sort of secret ballot.

Just as citizens have the right to know which legislators sign on to sponsor bills, they have the right to know which of their fellow citizens are sponsoring referendums and initiatives.

The circuit court reaffirmed the state’s time-honored and legally grounded policy of releasing the names of people who sign petitions.

The circuit court in California got it right, and the residents of the state of Washington are the benefactors.

See also these SCOTUSlaw Blog entries from Oct. 19th and Oct. 20th.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Courts in general

Courts - More on: SCOTUS rejects 7th Circuit ruling re Joseph Corcoran

Updating yesterday's ILB entry, Rebecca S. Green of the Fort Wayne Journal Gazette has a story today headed "Justices return Corcoran death-row appeal." Read the story the understand all the procedural details. From late in the story:

But Corcoran changed his mind in early 2005 and tried unsuccessfully to seek a trial court review of his case, according to court documents.

He then filed a petition in federal court but changed his mind again, saying he never wanted to appeal his sentence, according to court documents.

Against Corcoran’s wishes, Sharp overturned the death sentence, ruling that then-Allen County Prosecutor Robert Gevers inappropriately punished Corcoran by pursuing the death penalty against Corcoran after he declined to have a judge hear his case and asked for a jury trial, violating his Sixth Amendment rights.

When the 7th Circuit issued its ruling in December, it dealt only with the Sixth Amendment question, the only one dealt with by Sharp.

But in the recent ruling, the U.S. Supreme Court found that the 7th Circuit erred by not addressing all of Corcoran’s other issues, either in its first ruling or in a later request for another hearing. The nation’s highest court ordered the appellate court to address those issues, which could come in a written ruling or after further hearings.

The case could also end up back in the U.S. District Court for Indiana’s northern district, since Sharp also passed on addressing those issues, declaring them moot. But Sharp died in July, so if the case comes back to the lower court, it would be reviewed by a new judge.

A spokesman for Indiana Attorney General Greg Zoeller, whose office has handled the case on appeal, said it is pleased with the 7th Circuit’s original decision. “We are disappointed that additional litigation is necessary before this case can be concluded,” spokesman Bryan Corbin said, adding the decision may have added between one to three years to the case.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Indiana Decisions

Ind. Courts - "Lawyers clash over legality of ordinance governing Indiana “adult superstore” -- stories display some confusion, but by whom?

Harold J. Admas story today in the Louisville Courier Journal begins with a great lede:

While a gallery bused in by an anti-pornography organization looked on, attorneys for Theatair X and the town of Clarksville clashed over the legality of the “adult superstore” during a hearing Tuesday before a special judge.
See also this ILB entry from March 19th, headed "Theatair X attorney says ordinance unconstitutional in Clarksville."

More from today's story:

The hearing was on whether the town of Clarksville can enforce a 2005 ordinance that imposes restrictions on sexually oriented businesses. * * *

Theatair X, the only existing business covered by the ordinance, challenged it as illegal and unconstitutional after town officials cited owners last year for operating at prohibited hours and not making required changes inside the store.

Theatair X, which shows adult movies, offers live peep shows and sells adult DVDs, magazines and novelties, is open 24 hours a day, 7 days a week.

The Clarksville ordinance requires such businesses to be closed between the hours of 1 a.m. and 8 a.m. Monday through Saturday and between 1 a.m. and noon on Sundays.

On Tuesday in Salem, Theatair X asked the special judge hearing the case, Washington County Judge Robert Bennett, to dismiss the citations and void the ordinance. * * *

H. Louis Sirkin, an attorney for Theatair X, argued that the ordinance is illegal under Indiana law because its zoning provisions were enacted without the required certification of the local plan commission. For that reason, Sirkin said, the entire ordinance must be thrown out. “It’s invalid. It’s void,” he said.

Attorney Christopher Sturgeon, representing Clarksville, conceded that “the zoning provisions of the ordinance were not validly enacted.” But Sturgeon argued that a section of the ordinance that declares each part to be separate should allow the regulatory portion to survive.

Sirkin also argued that Clarksville did not conduct studies to prove claims in the ordinance that sexually oriented businesses lead to increases in illegal and unhealthful behavior. That is part of a test federal courts have used to determine whether such laws serve “a substantial government interest.”

Sirkin said Theatair X has been in existence at the same location on U.S. 31 near Veterans Parkway for more than three decades and “there’s been no increase in criminal activity there.”

Sturgeon countered that Clarksville used research from other cities, a practice upheld by federal courts in other cases. “The town does not have to conduct studies…of this business location,” he said.

Judge Bennett asked both sides “whether we’re premature here” in seeking a ruling on the constitutionality of the Clarksville ordinance. He noted that separate cases involving an Indianapolis business and the business formerly known as New Albany DVD are both being considered by the U.S. Seventh Circuit Court of Appeals.

“The federal courts are going to tell us the answers to these very questions, and we always defer to the federal courts,” Bennett said.

Sirkin agreed with the judge that “it would be prudent to wait for decisions in those two cases.” But Sturgeon said he would prefer that Bennett go ahead and rule. The judge asked the two sides to provide their proposed rulings within twenty days and promised to make his own ruling soon thereafter.

ILB -- Actually, the two cases pending before the 7th Circuit were decided last month -- and both were kicked back to Judge Sara Evans Barker.

Annex Books Inc, et al v. City of Indianapolis was decided Sept. 3rd - see ILB entry here, see also this entry from Sept. 5th. New Albany DVD, LLC v. City of New Albany was decdied Sept. 10th - see ILB entry here, and more here, from Sept. 10th.. Both cases had been pending before 7th Circuit for four years.

The news is worse in this story from Carrie Weil of WAVE 3. About half-way through the report:

During the arguments, Judge Bennett asked repeatedly about two other pending Indiana cases dealing with the operations of adult businesses in Indianapolis and New Albany. In September, the U.S. Supreme Court sent both cases back to the 7th Circuit Court of Appeals for a rehearing. While Judge Bennett seemed content to hold off on a ruling until those cases are resolved, Sturgeon pushed the judge to make a decision now. Sturgeon pointed out that the cases in question deal mainly with stores that sell only books and DVD's and do not operate live entertainment areas as Theatair X does. The judge agreed to do so.

Sirkin believes the cases are relevant and the move could backfire. "I think it doesn't make sense to have him (Judge Bennett) rule before the 7th Circuit really rules. All it's doing is if he rules contrary to us - it's inviting an appeal and all it does is cost taxpayers money."

ILB - It is hard to tell whether the judge and attorneys in this case were unaware of the recent 7th Circuit rulings, or if this is a case of two different reporters not understanding what they were hearing.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Courts

Courts - "Alito troubled by concerns over court's Catholics"

Marrclaire Dale has this report in the Washington Post that begins:

PHILADELPHIA -- U.S. Supreme Court Justice Samuel Alito voiced frustration Tuesday over what he called persistent questions about the court's Roman Catholic majority. Alito aired the topic in a speech to an Italian-American law group in Philadelphia.

Posted by Marcia Oddi on Wednesday, October 21, 2009
Posted to Courts in general

Tuesday, October 20, 2009

Ind. Gov't. - Although "State will cancel its $1.34 billion contract with IBM", concerns also expressed about ACS

Updating earlier ILB entries, see AP's Ken Kusmer reported late today -- here is a sample:

Rep. Peggy Welch, a Bloomington Democrat who sits on both the State Budget Committee and the General Assembly's Medicaid Oversight Commission, said some lawmakers wonder whether Dallas-based ACS was responsible for some of the poor service, lost documents and other problems that resulted in Daniels firing IBM Thursday from a 10-year, $1.34 billion contract to automate intake for food stamps, Medicaid and other welfare benefits.

“We're going to be watching closely on ACS, because there is a perception that they are just as bad an actor as IBM,” Welch said after a meeting of the Legislature's Medicaid Oversight Commission.

Rep. Suzanne Crouch, R-Evansville, said lawmakers remain skeptical of ACS because it was brought in by Mitch Roob, a former ACS executive who oversaw the IBM/ACS project as Family and Social Services Administration secretary until January, when he became Indiana's secretary of commerce.

“People are uncomfortable that ACS is still in place and that they were brought on board by former Secretary Roob,” said Crouch, one of several Evansville lawmakers who've led legislative criticism of the welfare changes.

Roob's office did not immediately respond to a message seeking comment.

The lawmakers' comments provided the first indication since IBM's firing that political pressure also was building against ACS, one of IBM's largest partners in the welfare outsourcing that moved 1,500 case workers from the state's payroll to ACS' employment 2 1 / 2years ago. ACS workers compile eligibility data on welfare applicants before state employees decide which benefits to award.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Indiana Government

Courts - SCOTUS rejects 7th Circuit ruling re Joseph Corcoran [Updated]

This ILB entry from Dec. 31, 2008 summarizes a 2-1, 7th Circuit opinion in Joseph E. Corcoran v. Buss (ND Ind., Judge Sharp) affirming the DC finding that Corcoran was competent to waive his post-conviction proceedings, and reversing the decision of the district court to grant Joseph Corcoran habeas relief, remanding "with instructions to deny the writ, and the State of Indiana is at liberty to reinstate the death penalty."

This Jan. 1, 2009 entry quotes a story by Rebecca S. Green of the Fort Wayne Journal Gazette, headed "Death penalty back on table for Corcoran."

This Jan. 6, 2009 ILB entry, headed "Should Indiana law ban the execution of the mentally ill?," quotes a JG editorial. A quote:

Reinstatement of the death penalty against Joseph Corcoran marks another sad twist in a cruel and misplaced effort to extract justice from a mentally ill man. The sentence should again be thrown out on appeal, and Indiana lawmakers, in the meantime, should finally pass a law banning the execution of the mentally ill.
The SCOTUS today did throw out the 7th Circuit's opinion, but SB 22 did not make it out of committee during the past session.

Here is what SCOTUSlaw Blog has to say about today's action:

The Court issued one summary ruling (found here), requiring the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder. The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected. This was an error, the Justices said Tuesday in their unsigned opinion in Corcoran v. Levenhagen (08-10945). There were no noted dissents.
[Updated 10/21/09] Check out this entry and comments on The Volokh Conspiracy for discussion of what the ruling means.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Courts in general | Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions | Indiana Decisions

Ind. Courts - Hearing Officer Appointed In Brizzi Matter

Updating this ILB entry from Oct. 8th, headed "Ind. Courts - Disciplinary complaint filed against Marion County prosecutor Carl Brizzi," the Supreme Court press office has just announced that the Supreme Court has appointed Judge Charles O'Connor of the Shelby Circuit Court as hearing officer in the disciplinary matter against Prosecutor Carl Brizzi.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Indiana Courts

Ind. Courts - "Putnam County Judges ask commissioners for Court Referee"

A long story today in the Greencastle Banner Graphic, reported by Maribeth Ward, begins:

Putnam County Commissioners gave their approval to a request by Superior Court Judge Denny Bridges and Circuit Court Judge Matt Headley for the creation of a court referee.

They will go before the County Council Tuesday evening for fiscal approval.

A court referee is a licensed attorney in the state of Indiana who works under the authority of the judges and presides over cases assigned by them.

"We see the referee hearing child support, small claims, some misdemeanor, some juvenile cases as well as some dissolution of marriage actions," said the letter presented to the commissioners.

The two judges believe now is a good time to move forward with their request. They quote an increase in the total number of cases filed in Putnam County since 1978 to be 210 percent.

There were just two judges in 1978, and they heard 10,228 cases.

They cite increases in other county offices affecting the court system since 1978. The prosecuting attorney had two part-time prosecutors and two part-time secretaries in 1978. As of 2008 there were four prosecutors (three being full-time), four full-time secretaries, a victim's assistant coordinator and an investigator.

The sheriff's department increased from one, sheriff, one to two deputies, two to three jail employees and one office person to 17 deputy sheriffs, 13 full-time jail employees, 33 part-time ail employees and five office staff in 2008.

Bridges and Headley also pointed out the difference in other counties with populations from 21,542 to 39,902 (Putnam has 37,251) and the number of judges. Only one other county, Gibson with a population of 33,396, has only two judges.

Huntington with 38,026 in population has two judges, one referee and one town court. Knox County with 38,241 in population has three judges and one town court.

Even Wabash County with only a population of 33,559 has two judges and two town courts.

The judges' information went on to explain the weighting system of the Indiana Supreme court. When applying this weight to Putnam County courts the two courts are having cases filed that should require over three courts to hear them.

In fact, of the 92 counties within the state, only six counties have an aggregate average higher than Putnam.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Mark Alvin Lamar v. State of Indiana , an 8-page opinion, Judge Mathias concludes:

The trial court did not abuse its discretion in sentencing Lamar because the trial court properly found an aggravator that was sufficient to support the sentence imposed. Lamar's sentence was not inappropriate in light of the nature of the offense and the character of the offender. Affirmed.

DARDEN, J., concurs.
ROBB, J., concurs in result with opinion. [which includes] When a trial court abuses its discretion in finding an aggravator, we will nonetheless affirm the sentence if we can say with confidence that the trial court would have imposed the same sentence even if it had not considered the improper aggravator.

NFP civil opinions today (3):

DeVoy & Hicks Body Shop and David DeVoy v. Mike R. Wallace (NFP) - "This single dispute comes to us within the context of three causes: (1) an award of worker's compensation benefits; (2) the employee's claim for the trial court to render judgment on that award; and (3) the employer's claim for fraud and breach of contract arising from the worker's compensation litigation. Specifically, DeVoy & Hicks Body Shop, Inc. and David DeVoy (“Employer”) appeal the trial court's dismissal of their complaint for fraud and breach of contract and the trial court's subsequent denial of their motion to correct error. We affirm, concluding that the Employer is barred by claim preclusion from bringing its claims."

Brady McCord v. Review Board, and Mariane, Inc. (NFP) - "For the foregoing reasons, we affirm the Indiana Department of Workforce Development Review Board's determination that McCord was terminated for just cause."

Michael McMann v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP) - "Although McMann is not disqualified from receiving unemployment benefits under Indiana Code chapter 22-4-15, he cannot establish his eligibility to receive benefits under Indiana Code chapter 22-4-14 because he is unable to work. See I.C. § 22-4-14-3(b). Accordingly, we affirm the Review Board’s decision that McMann is ineligible to receive unemployment insurance benefits."

NFP criminal opinions today (11):

Arthur Williams v. State of Indiana (NFP)

Phillip Robertson v. State of Indiana (NFP)

Liberio Aguirre v. State of Indiana (NFP)

Jasen Shaver v. State of Indiana (NFP)

Michael B. Kern v. State of Indiana (NFP)

Larry E. Farner v. State of Indiana (NFP)

Bradley K. Lawrence v. State of Indiana (NFP)

Palas Bryant v. State of Indiana (NFP)

Michael C. Brewer v. State of Indiana (NFP)

Jeff Howell v. State of Indiana (NFP)

Dale J. Atkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 on Oct. 19th (and 2 NFP)

For publication opinions Oct. 19 (1):

In State of Indiana v. Mark Damron, a 7-page opinion, Judge Barnes writes:

The State appeals the granting of Mark Damron’s petition for post-conviction relief. We reverse. * * *

The State raises one issue, which we restate as whether the post-conviction court properly granted Damron’s petition for post-conviction relief where the transcript of his 1991 guilty plea hearing had been destroyed. * * *

In his petition for post-conviction relief, Damron argued that the destruction of the tape of his guilty plea hearing prevented meaningful review of his 1991 guilty plea. The United States Supreme Court requires that the record of a guilty plea hearing must show, or there must be an allegation and evidence which show, that the defendant was informed of, and waived, three specific federal constitutional rights: the privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s accusers. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969)). The Boykin court made clear that courts cannot presume a waiver of these important federal rights from a silent record. Id.

In Hall, however, our supreme court clarified that a lost record is not the per se equivalent of a silent record. The Hall court explained:

The fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief. Rather, as with any claim made in a petition for post-conviction relief, a claim that the petitioner’s conviction was obtained in violation of federal or state constitutional safeguards . . . must be proven by a preponderance of the evidence.
As in Parke, Damron is collaterally attacking his guilty plea. See Hall, 849 N.E.2d at 472 (“[O]ur courts have long deemed post-conviction proceedings collateral.”). Also, the destroyed record is not “suspiciously silent.” The untimely destruction of a tape does not in and of itself indicate that the State—the county prosecutor or the Attorney General—acted improperly. See id. (observing there was “no suggestion that the cause of the missing record is the result of misconduct by the State.”). It appears that the trial court had a policy of destroying tapes after ten years, and without more we cannot equate this policy, although in contravention of the Indiana Rules of Criminal Procedure, to governmental misconduct. Given these facts, we cannot conclude that the presumption of regularity should not apply here.

Further, Damron presented no evidence that he was not informed of his Boykin rights at the time of his guilty plea. * * *

Because Damron did not demonstrate that he was entitled to post-conviction relief, the post-conviction court improperly granted his petition. We reverse.

NFP civil opinions Oct. 19 (2):

Eugene Duncan and Gaye E. Duncan v. Charles Whitehair, Pers. Rep. for Estate of J. P. Guill (NFP) - "The Duncans raise one issue, which we restate as whether sufficient evidence was presented to support the trial court’s judgment in favor of the Estate on its unjust enrichment claim. We affirm."

Term. of Parent-Child Rel. of W.W.; J.B.W. v. IDCS (NFP) - "The DCS presented clear and convincing evidence to support the termination of Father’s parental rights. We affirm."

NFP criminal opinions Oct. 19 (0):

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Jurors ‘missed it’ in murder acquittal, judge says"

Jason Riley reported yesterday in the Louisville Courier Journal in a story that began:

Senior Judge Martin McDonald on Monday said a Jefferson Circuit Court jury “kind of missed it” when they “bought” Adam Barker’s claim that he was acting in self-defense when he fatally shot 20-year-old Zachary Scarpellini on Cherokee Road in October 2003,

Jurors on Friday acquitted Barker of murder but found him guilty of second-degree manslaughter, meaning they ruled Barker believed his life was in danger, but was mistaken in that belief.

The jury also convicted Barker of tampering with physical evidence and criminal mischief for cutting the tires on Scarpellini's vehicle in October 2003, mistakenly believing that Scarpellini was one of three men who had fought with him at a bar earlier that year.

On Monday, it took jurors just 15 minutes to recommend to McDonald that he impose the maximum penalty, 20 years in prison.

And it was up to McDonald to decide if Barker, who is already serving a 40-year prison sentence for fatally stabbing Carlos Berrelez in the 1100 block of Lexington Road in October 2004, would serve the 20 years at the same time or consecutively with the Berrelez murder sentence.

Defense attorneys asked for the sentences to be served at the same time, but McDonald noted that this was “not my first go round with this defendant” and ordered that Barker serve the sentences consecutively — a total of 60 years in prison. He will be eligible for parole in 15 years.

Jurors declined to comment as they left the courthouse.

Assistant Commonwealth's Attorney Tom Van De Rostyne said some jurors expressed regret that they did not get to hear about Barker’s lengthy criminal history — several assaults and the murder conviction — until the sentencing phase of the trial. * * *

Zachary Scarpellini’s mother, Denise, who went to shake McDonald’s hand after the sentencing, said Barker “had a pattern” of dangerous behavior and “he followed it.”

While she didn’t blame jurors for acquitting Barker of murder, she said the justice system was flawed in not allowing Barker’s criminal history to be presented at trial.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Indiana Courts

Ind. Courts - "Proposal to close Lake County courts stirs opposition"

Bill Dolan reports in the NWI Times:

CROWN POINT | Lake County Commissioner Roosevelt Allen, D-Gary, said closing the satellite courthouses would be unpopular among north county voters who would lose easy access to county government offices.

"The voters may punish officials who choose to close county buildings in Gary, Hammond and East Chicago," Allen warned Monday.

County officials estimate consolidating courthouses would reduce the county's annual operating costs by $1.9 million, but Allen believes those savings are exaggerated and relocating courts and other offices in Crown Point would make them inaccessible to north county residents without private transportation.

Commissioners Fran DuPey, D-Hammond, and Gerry Scheub, D-Schererville, recently asked seven civil and family court judges now occupying those three courthouses for permission to move their venues to Crown Point. Chief Superior Court Judge John Pera said judges support consolidation in principle but still support a judicial presence in the three cities.

Further, Allen suggests that not only the courts would close, but satellite offices for the clerk, the prosecutor's child support division, the treasurer and sheriff.

"Approximately 700 citizens per day visit the Gary courthouse to conduct their business with county government," he said. "Closing the satellite courthouses would disenfranchise thousands of citizens."

Allen said many voters flocked to the satellite courthouses, including some who came on foot or by city bus last year, to vote in the presidential election and avoid long lines at the government center in Crown Point.

The county has spent $4 million in the last four years upgrading the Gary courthouse with two new elevators, a new roof, new windows and a new magistrate's courtroom.

"The judges in the satellites have spacious courtrooms and don't want to move to Crown Point," Allen said.

"I truly believe the primary function of our county government is to provide not only vital government services, but also make those services accessible to everyone in Lake County."

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Indiana Courts

Courts - "Sotomayor’s Gift of Gab Grabs Headlines Again"

Check it out - from the WSJ Law Blog - by Jennifer Forsyth

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Courts in general

Environment - "BP permit must be rewritten: State may not have fully assessed new emissions"

Gitte Laasby reports in the Gary Post-Tribune today in a long story:

MERRILLVILLE -- The U.S. Environmental Protection Agency is forcing the Indiana Department of Environmental Management to rewrite part of the air permit for BP's Whiting refinery.

EPA says BP and IDEM left out or underestimated several sources of air pollution that need to be counted when determining what kind of air pollution control equipment is necessary.

EPA has given IDEM 90 days to rewrite the permit, respond to questions and provide emission estimates for several polluting units that were left out of the permit.

EPA's order came Monday -- more than a year and two months after a coalition of environmental groups petitioned EPA to object to the permit. * * *

"Specifically, questions must be answered about emissions from flares, residual emissions from vessel depressurization, increased emissions from coking and coke drum depressurization, fugitive emissions from reduced sulfur compounds and emission factors to account for higher-sulfur crude," EPA said in a news release. * * *

BP spokesman Scott Dean said it's too early to tell what, if any impact, EPA's order would have on the three appeals pending in state court, but that construction on the refinery will continue.

"We have a valid construction permit, we have 2,000 people currently at work on this modernization project," he said. "The construction is about one third complete and we intend to move forward with construction."

He said company officials were "caught completely by surprise" by EPA's order.

"They reviewed this permit last year and had no objections," he said. "We haven't been able to go through the details of their new questions, but we'll of course go through it and work with them to address their concerns."

IDEM has 90 days to revise the permit, but will not be required to hold another hearing or take public comments. Spokesman Rob Elstro said IDEM "will need that time to evaluate the available options and consider the appropriate response to the order."

In addition to the NRDC, the environmental groups that petitioned are the Environmental Law & Policy Center, the Hoosier Environmental Council, Save the Dunes and Sierra Club.

From a staff story today in the NWI Times:
IDEM issued BP modified air permits May 1, 2008, and June 16, 2008, to allow construction at the refinery to begin and to serve as the operating permit for the expansion, respectively.

Construction began in May 2008 on BP's modernization, which will enable the refinery to process more heavy crude oil extracted from Canadian tar sands. The project is on track to be completed in early 2012.

In August 2008, several environmental groups petitioned the EPA to object to the state's modification of BP's operating permit.

Pamela Blakley of EPA Region 5 in Chicago said the objection will not halt site construction and is not related to the minor modification permit BP received to do construction. Blakley, chief of the Chicago regional office's air permit division, also said the EPA's action is separate from permit appeal cases environmental groups filed with a state administrative court.

The EPA said that the additional emissions created from the expansion project did not trigger a more stringent air permit modification, which could have forced BP to install additional pollution control equipment or take other steps to curb emissions. However, the EPA said IDEM should respond to all the questions raised and re-evaluate emission calculations for the project.

The EPA also disagreed with other points raised by the environmental groups, which argued the state should have forced BP to adhere to a compliance schedule, further scrutinized the venting of uncontrolled pressure relief valves and taken a harder look at whether the refinery plans to use the best available pollution control technology.

An IDEM spokesman said the agency will use the 90-day period to evaluate its options and consider an appropriate response to EPA's concerns.

To see the 24-page order the EPA sent the state concerning air pollution permits for the $3.8 billion expansion of the BP Whiting Refinery, go [here].

The Chicago Tribune's Michael Hawthorne puts a political slant on the story - the headline is "Obama's EPA cracks down, orders more tests for BP refinery: In last months of Bush's administration, agency approved project to upgrade and expand northwest Indiana BP site, one of the largest polluters in the Chicago area." Some quotes:
The decision is a policy shift by the EPA. In the last months of the Bush administration, the agency signed off on the BP project and rejected the concerns raised in Monday's order by President Barack Obama's EPA.

Critics say the operating permit was typical of Indiana's lax approach to BP, which has embarked on a $3.8 billion upgrade and expansion of its Whiting plant to process heavy crude pulled from tar-soaked clay and sand in Canada. The state earlier had allowed BP to dump more water pollution into Lake Michigan, but the company backed off after Tribune stories prompted a storm of public protest.

"This refinery expansion is clearly going to dump additional pollution on the surrounding communities, and the law requires BP to control it," said Ann Alexander, a senior attorney for the Natural Resources Defense Council. "BP has been playing games with the numbers to try to duck that responsibility, but the jig is up."

One of the problems outlined in the EPA order involves a dozen flares that burn off pressurized gases from the refinery. The federal agency has accused BP of repeatedly violating pollution limits on its flares. But when the Indiana Department of Environmental Management awarded the company a new permit last year, it agreed with BP that the flares will emit virtually no toxic fumes when the expansion project is completed.

The EPA also directed Indiana to re-examine emissions from equipment that turns some of the heavy oil into petroleum coke. The state agency declared the emissions would be "negligible," a conclusion the federal EPA suggests is unrealistic given the amount of pollution coke production creates. * * *

The EPA's order could set a precedent for refinery projects in Illinois, Wisconsin, Michigan, Minnesota and Ohio.

BP and Indiana regulators say the Whiting project will cut the amount of air pollution the refinery emits. But even with various improvements in the last decade, the refinery is the sixth-largest source of industrial air pollution in the Chicago area, a Tribune review of federal records shows.

The 246 tons of airborne chemicals and heavy metals emitted by the refinery in 2007, the last year for which figures are available, included toxic benzene, ammonia and mercury.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Environment

Ind. Gov't - "Indiana, IBM Welfare Dispute May Not Be Over"

So reported Norman Cox in this Channel 6 News story last evening.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Indiana Government

Law - Jan Crawford Greenburg to become CBS News chief legal correspondent [Updated Oct. 21st]

From a CBS press release:

Jan Crawford Greenburg will become CBS News Chief Legal Correspondent, it was announced today by Sean McManus, President, CBS News and Sports. Her appointment will be effective January 4, 2010. In this role, Greenburg will provide legal and political news and analysis and contribute regularly to THE CBS EVENING NEWS WITH KATIE COURIC, THE EARLY SHOW and FACE THE NATION, as well as CBS Radio News and CBSNews.com. Greenburg had been a regular contributor to CBS News in 2005 to 2006.
This is good news - it means more emphasis on legal news from CBS, and it means more reporting from Greenburg, who is top notch -- she started at the Chicago Tribune before moving to ABC. She is a University of Chicago Law grad.

[Updated Oct. 21st] MUCH more here, from Above the Law.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to General Law Related

Ind. Decisions - Petitions to transfer filed in the Indiana voter ID case

Briefs have now been filed re the Court of Appeals decision in League of Women Voters v. Todd Rokita, the voter ID case decided on state constitutional grounds. Here is a list of earlier ILB entries in the case.

Posted by Marcia Oddi on Tuesday, October 20, 2009
Posted to Ind. App.Ct. Decisions

Monday, October 19, 2009

Ind. Decisions - Court of Appeals issues 0 today (and 0 NFP) [Updated]

Apparently there are opinions today, but the Court site reports: "We are currently experiencing technical problems with our opinions website. New court opinions will be made available as soon as possible."

[Updated on Oct. 20th at 6:239 AM] Still no opinions posted from yesterday. The Court's site continues to display the "technical problems" banner.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 16, 2009

Here is the Clerk's transfer list for the week ending October 16, 2009. It is two pages long.

One transfer was granted last week, Wells Fargo Bank, N.A., et al. v. Brett Gibson, see the ILB summary here.
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 Oct. 9, 2009 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, October 19, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - More on "Judge will remain in Jay County murder cases"

Updating this ILB entry from Sept. 6th that began by quoting a story from the Muncie Star-Press:

PORTLAND — Judge Brian Hutchison will continue to preside over five local murder cases, the Indiana Court of Appeals has ruled.

In an Aug. 26 decision, the appeals court rejected change-of-judge motions filed by attorneys for Roderick Berry, Michael P. Heffern, Addison Pijnappels, Thomas A. Smith and Tina L. Whiting, all charged with murder and robbery in the 2008 slaying of Shawn M. Buckner.

Today the Star-Press has a brief, unsigned story that reports:
PORTLAND -- After months of delay, the cases against five Jay County residents charged with murder might finally be moving toward resolution.

Jay Circuit Court Judge Brian Hutchison on Friday set a Nov. 25 hearing on requests from Roderick Berry, Michael P. Heffern, Addison Pijnappels, Thomas A. Smith and Tina L. Whiting to move their cases out of Jay County due to pre-trial publicity.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on "$6.4M fine in Ohio for illegal practice of law"

"Ohio High Court Hits Alleged Trust Mill With $6.4 Million Fine" is the title of this article by Karen Sloan in the Oct. 19th The National Law Journal. Some quotes:

The Ohio Supreme Court on Oct. 14 fined a so-called trust mill and its affiliate company nearly $6.4 million for the unlicensed practice of law in the biggest penalty of its kind in the state's history.

The ruling ended seven years of legal wrangling between the Columbus Bar Association and American Family Prepaid Legal Corp. and its affiliated Heritage Marketing and Insurance Services Inc., both former companies based in California and owned by the father-and-son team of Jeffrey and Stanley Norman.

In addition to the penalty, the three-judge Ohio Supreme Court panel barred the companies from operating in the state, where they allegedly duped thousands of senior citizens into buying living trusts and insurance products that they often didn't need and couldn't afford. * * *

According to court documents, American Family purchased lists of individuals in Ohio aged 65 and older and sent postcards with warnings about huge probate costs. Those who sent the cards back, and some who didn't, received calls from the company to schedule in-home appointments with sales representatives. The representatives, who were not lawyers, used aggressive, high-pressure tactics to sell the customer a $1,995 plan that purported to include an array of legal services. However, the only services rendered in nearly all cases was the creation of a living-trust portfolio, according to court records. The sales agents also answered questions, sometimes incorrectly, about the probate process, according to the court.

Jeffrey Norman disputed that the company's sales representatives dispensed legal advice.

"They would give general information about legal issues, like, 'Are you aware there is such a thing as probate? Don't you think you would like access to an attorney to discuss that?' " he said.

The customers' financial information was passed to an attorney in the company's Ohio office, then forwarded to the company's California headquarters where living trust form documents were completed and sent back to Ohio. There, they received a review by the attorney. The court concluded that the attorney did not provide enough supervision during this process, however.

The documents were then forwarded to Heritage Marketing and Insurance Services Inc., which shared the same Ohio office. Heritage agents delivered the documents to the customers to be signed and notarized. While there, the agents would attempt to sell the customers insurance, the court said.

"This was all under the auspices of getting into people's homes with their financial information and selling annuities and other insurance products, which, of course, was how they would make their money," Edelman said.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Courts in general

Law - More on "The Lilly Ledbetter Fair Pay Act of 2009: A Preliminary Report"

FindLaw.com columnists and law professors Joanna Grossman and Deborah Brake have written a three-part article on the Lilly Ledbetter Act. Part I and Part II were linked here. Part III is now available here.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to General Law Related

Ind. Courts - "CSI Indy? Not in Hamilton Avenue slayings case: It's unusual -- but not unheard of -- for a grisly murder case to yield no physical evidence linking a suspect to the crime"

Updating earlier ILB entries, the "Hamilton Avenue slaying trial" is now in its second week. Jon Murray and Heather Gillers of the Indianapolis Star have this lengthy, front-page story today about physical evidence at a crime scene. Some quotes:

Turner's trial resumes today. Prosecutors, midway through the two-week trial in Marion Superior Court, have set out to prove their case in a more traditional way, building what Brizzi hopes will be a compelling circumstantial case. Marion Superior Court Judge Robert Altice is weighing the evidence in a bench trial.

Concerns about the lack of physical evidence were so great that Brizzi was willing to drop his pursuit of the death penalty last month in order to entice Turner, 31, to give up his right to a jury. Brizzi is seeking a life sentence.

Prosecutors worry that jurors are more likely to have television-bred expectations for concrete evidence, even more so when a defendant's life is at stake.

"For example, there's an episode of 'CSI' where they retrieve fingerprints from a body," said Scott Newman, Brizzi's predecessor as prosecutor, the founder of a DNA testing lab and most recently Indianapolis' public safety director.

"It's very difficult to do that," Newman said. "But jurors may expect that fingerprint to be on the neck of the victim, and they will misconstrue that as reasonable doubt if it's not there."

Even if Brizzi lost the potential emotional impact on jurors of grisly crime-scene and autopsy photos, he hoped to gain the sober reasoning of a judge who can sort through varying witness statements to find proof beyond a reasonable doubt.

Convictions based on circumstantial evidence still happen in criminal cases, even murder cases.

Newman said more than half of slaying scenes probably include some type of forensic evidence, from something as simple as fingerprints to microscopic skin cells that require sophisticated DNA analysis. Still, he estimated DNA evidence might be found in 10 percent to 20 percent of cases.

A lot depends on how the victim died -- and, sometimes, the luck of the perpetrator.

"If the defendant didn't shed blood or hair or skin," said Linda Chezem, a former Lawrence County trial court judge who also served on the Indiana Court of Appeals, the chances of a forensic break decrease.

"If the defendant wore gloves, if they don't drink anything, if they don't spit. We don't shed as we walk," said Chezem, who teaches a course at IUPUI in forensic science and the law.

If prosecutors are right that Turner and an alleged accomplice, James Stewart, were responsible for the killings on Hamilton Avenue, that means they spent 10 minutes or less inside the house, ransacked the place and fired off shot after shot, all without leaving an identifiable trace of their presence. * * *

Prosecutors may wrap up their case by midweek, Brizzi said. Possibly on tap: police detectives, testimony about Turner's actions after the killings and some physical evidence that they hope will buttress their case even if it doesn't solidly implicate Turner. That includes the recovery of unfired bullets -- the same type fired at Hamilton Avenue -- from a house where Turner had stayed, and Turner's clothes found soaking in a bathtub.

But DNA testing on those clothes found genetic material only from Turner, not the slaying victims, defense lawyers point out.

For current coverage, check Jon Murray's blog and tweets here.

For more on the trial, see Austin Considine's daily posts / videos here.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Indiana Courts

Law - Reading the bills may not be the answer ...

Today Al Kamen's "In the Loop" column in the Washington Post includes this gem:

They call it the World's Greatest Deliberative Body (WGDB), Part I.

The Senate Judiciary Committee last week was reviewing an amendment by Sen. Richard Durbin (D-Ill.) to the USA Patriot Act to clarify the legal standard needed for an investigation under the act. The amendment was intended to provide greater protections from abuse by investigators.

His colleague, Sen. Amy Klobuchar (D-Minn.), spoke in opposition, agreeing with committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Jeff Sessions (Ala.) that additional protections are not needed.

"I would just point to the actual language in here," Klobuchar said, "which is, it's not like this is some pie-in-the-sky standard here. I mean, it specifically says," she noted approvingly, reading aloud from the bill, that there have to be "reasonable grounds to believe that the information sought is relevant to an authorized national security investigation," and you can't investigate someone just for exercising free speech rights and there's got to be some suspected foreign agent involved.

"So I just, for anyone listening to this, it is not like there is no standard," she concluded. "There is a standard in place here."

"That's the standard that is in the bill now?" Sessions asked.

Klobuchar nodded that it was.

No it's not, Durbin interrupted. "Senator Klobuchar, you just read my amendment," not the bill, he said -- "and I think it's critically important that you understand what we're establishing here."

Whatever. Klobuchar voted against the amendment, which got only a handful of votes anyway.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to General Law Related

Ind. Gov't. - Even more on "State will cancel its $1.34 billion contract with IBM and other vendors to automate the application process for food stamps, Medicaid and other benefits"

Updating this ILB entry from Oct. 17th, Angela Mapes Turner had this valuable story Sunday in the Fort Wayne Journal Gazette, headed "Welfare ‘hybrid’ to emerge Daniels plans to meld old with new and save money, but details unclear." Some quotes from the long story:

More than $360 million into the state’s largest private contract, Indiana faces uncertainty about how it will rebuild from its failed welfare privatization attempt and what it has actually gained.

The state’s Family and Social Services Administration also faces the task of replacing its dinosaur of a core computer system down the road – a cost that had not even been included in the IBM contract.

Gov. Mitch Daniels announced Thursday he was firing IBM Corp. as administrator of the state’s food stamp, Medicaid and welfare benefits and that the state would assume IBM’s role at the helm of a “hybrid” system.

The hybrid system – the details of which remain unknown – will combine successful elements of the old welfare delivery system and the modernized system. In general, that means more face-to-face time with clients and a case-based, rather than task-based, approach to processing applications, Daniels said.

Although the administration claims the proposed hybrid system will still save tens of millions of dollars annually, it is important to distinguish the starting point for that assessment.

Jane Jankowski, spokeswoman for the governor, said FSSA previously projected the cost of upgrading and modernizing the system on an in-house basis as opposed to hiring a private vendor.

The agency determined the state would spend less using an outside vendor.

Those savings are based on comparing cost projections of in-house modernization with those of the IBM coalition proposal.

A chart on the FSSA Web site shows the cost of the contract was also supposed to be less than the projected cost of continuing on the old system if no major upgrades were made.

A projection from fiscal year 2007 – before the IBM system was implemented – showed FSSA’s baseline cost was $150 million, and that without upgrades, the annual cost would rise to about $225 million in fiscal year 2016.

Under the IBM-led modernization, the cost would have been less than $150 million in fiscal year 2016, while an internal modernization would be about $220 million, the projection said.

Daniels intends for the cost of the new hybrid system to fall between those two numbers, Jankowski said.

Jankowski said the administration could not provide a cost-per-client comparison between the old system and the IBM-led system because there are too many variables.

To date, the state has spent $361 million on the contract. Of that, about $163 million was the state’s share, with the remainder from federal sources, according to data the FSSA provided the state budget committee last month. * * *

Because the state halted the implementation of the IBM-led system in January, only about a third of the state’s public assistance clients were being served by the new system. But the state was on track to pay as if the program had been completely implemented. In less than three years, IBM had been paid about a quarter of the contract’s original $1.16 billion sum.

Rep. Peggy Welch, D-Bloomington, took a stab at what she called “back-of-the-envelope” calculations when the state’s answers didn’t satisfy her. Welch said she and her legislative assistant, using numbers provided by the state’s auditor, calculated the state was paying about $140,000 a day to IBM during the first eight months of this year for services not rendered.

Also frustrating to some was the lack of an apples-to-apples cost comparison of the IBM system and the old system.

“We’ve never been able to get the administration to say, ‘What did it cost before?’ ” said Nancy Griffin, an advocate working with welfare recipients.

In any case, Griffin is ready to focus on what’s to come. Replacing the state’s antiquated computer system should be part of any discussion to modernize Indiana’s welfare programs, she said, because such an upgrade would go a long way toward improving service and reducing errors.

Griffin believes the looming cost should have been included in the IBM contract in the first place.

“It avoids the big issue,” she said. “Let’s do the right thing and really get some bang for our buck.”

FSSA spokesman Marcus Barlow said including a computer system upgrade in the IBM contract was never part of the plan because Indiana was trying to learn lessons from a failed privatization in Texas. Barlow said Texas changed its core computer system, causing many problems for the state. * * *

One of the most criticized subcontractors will retain its work with the state.

The Associated Press reported last week that Affiliated Computer Services Inc. sought permission from the FSSA to use the state’s welfare data to screen job applicants for fraud or other welfare program violations. The federal agency that oversees the food stamp program objected when it learned from FSSA in July that the state agency might share the data.

The participation of ACS in the private coalition had been criticized from the beginning because Mitch Roob, the FSSA secretary who led the agency when the contract was signed, was a former executive at the Texas-based technology vendor.

Soon after FSSA entered into the contract, Daniels appointed Roob commerce secretary and chief executive director of the Indiana Economic Development Corp. Roob’s salary increased from $130,000 to $150,000 with the job change.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Indiana Government

Ind. Decisions - Still more on "Indiana High Court Allows MySpace Entry As Evidence In Murder Trial"

In Thursday's Supreme Court decision in Ian J. Clark v. State, the Court wrote:

One of his trial objections does pose a novel question: should the trial court have permitted the State to offer into evidence Clark’s entry from the social networking website MySpace? We hold that this electronic evidence was admissible, and we affirm Clark’s conviction and sentence. * * *

Clark contends the trial court abused its discretion when it admitted evidence of his MySpace posting. Clark claims this was inadmissible character evidence, citing Indiana Rule of Evidence 404(b) * * *

We conclude that the trial court properly admitted the evidence of Clark’s MySpace page. Clark’s posting contained only statements about himself and in reference to himself. Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue, so Rule 404(b) does not apply.

The ILB summarized the opinion here. In any entry the next day, Oct. 16th, the ILB noted that although the WSJ Law Blog had reported on the opinion, their analysis wasn't up to their usual standards. I added:
By my reading, there is nothing particularly newsworthy about the opinion. Thoughts?
Later that day, the ILB reported that a story from the Fort Wayne Journal Gazette ended on much the same note:
Typically, statements about the character of the accused are not admissible under the state’s rules of evidence, said Bruce Berner, Seegers Professor of Law at Valparaiso University. But when the defendant makes his or her character an issue through their own statements, then evidence to the contrary can be used by prosecutors, Berner said.

Social networking sites such as MySpace and Facebook are being used in many instances to learn more about individuals, such as by employers researching potential employees.

This is just the next logical step in that, Berner said.

And using the statements on the MySpace page is no different than using statements made from the defendant to an actual person, Berner said.

“This case is not at all unusual because of the law,” Berner said. “Except this guy spouts off on a MySpace page instead of to a guy at a bar. … The format is different, … but other than that, this is classic prosecution rebutting a defendant who put his own character at issue.”

A story for the Oct. 19th National Law Journal, by Amanda Bronstad, is similar to the earlier reports. However, it concludes with a quote from the Indiana Attorney General's office:
"The decision affirming Clark's conviction and sentence speaks for itself, and we agree with the Indiana Supreme Court that Clark's MySpace entries were admissible at his murder trial," said Bryan Corbin, a spokesman for the Indiana attorney general's office. "The result appeared clear from the simple application of long-standing Indiana law that has been applied to letters, diaries, phone and personal conversations, etc. In our view, there was really no reason to treat a MySpace page differently
Okay, so there we are. Except that, as Prof. Berner noted, "the format is different." And the AG says this is really no different than a diary. In some ways that is true. But one can hold the actual diary and introduce it in evidence and read from its pages. With MySpace, the actual "diary" is online. And it may change at any time, often leaving no trace .

That point was raised by two individuals on Friday. The first commented to the WSJ Law Blog entry:

How did the Indiana Court determine that the killer was the person who physically typed that entry and posted it to MySpace?
The second answered the ILB's request for "your thoughts" by writing:
You invited comments about the MySpace holding from earlier this week. I care little or nothing about the ER 404(b) admissibility of the page content. What alarms me is that the opinion will be read as precedent that web page content is somehow self-authenticating. Even if there was no objection below based on foundational authenticity, there should have been at least a footnote in the opinion acknowledging the need to authenticate such evidence.
Check out this article by Ronald J. Levine and Susan L. Swatski-Lebson, titled "Social Networking And Litigation," in the January 2009 issue of e-Commerce Law & Strategy. From p. 3:
Courts weighing the admissibility of Web site postings, e-mail and instant messages are generally holding that these communications can be admissible provided the following two conditions are met:
1. Unless they are admissions or are subject to another exception, the content cannot be offered for the truth of the matter asserted. This is because Web site postings are considered out of court statements; thus they may be subject to a hearsay

2. The proponent must offer direct or circumstantial evidence as to the content’s authenticity.

Authentication objections arise because it is possible to create a Web page on a social networking site in another person’s name or to send an e-mail or post a message in another’s name. Therefore, it is difficult to show who actually is responsible for creating material on the Internet. * * *

Practice points regarding authenticating content from a Web page include:

  • Provide testimony from the person who obtained the copy of the Web page, stating when and how it was copied and affirming that the copy is accurate;
  • Subpoena documentation directly from the social networking site provider; and
  • Offer evidence that the purported author of a Web page actually wrote it. The normal methods of proving authorship apply to Internet material and include:
    1. an admission by the author;
    2. .testimony of a witness who assisted or observed the creation of the Web page;
    3. evidence of similarities between the contested Web page and an authenticated Web page;
    4. content on the Web page that connects it to the author; and
    5. stipulation.
In Clark, the Court states at p. 4:
It seems that Matara had helped Clark create his own personal entry on MySpace, the social networking website. Clark testified in his own defense, and the prosecutor read to Clark, over defense counsel’s objection, his own description of himself ...
There is no discussion of authentication.

Finally, going back again to issues other than authentication, the EvidenceProf Blog's David Leonard wrote Oct. 15th under the headling "Supreme Court of Indiana Seemingly Errs in Deeming MySpace Evidence Admissible In Murder Appeal." Check his entry for his argument. It concludes: "Clark did not inject the issue of character into his trial, and the prosecution should have been precluded from presenting evidence from his MySpace Page at trial."

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "Prosecutors in Manhattan — aware that the legal clock for bringing a case was running out — devised the novel strategy of indicting the rapist’s DNA"

"Indicting DNA Profiles Is Vital in Old Rape Cases" is the headline to this story today in the NY Times, reported by Al Baker. Some quotes from the long story:

Nearly 10 years had passed since a college student was raped on the Upper West Side of Manhattan, and with no known suspect in the 1993 case, the police were not close to an arrest. But what they did have was nearly as critical: the rapist’s DNA profile.

In New York City, prosecutors have secured 117 indictments of DNA samples in rape cases, linked 18 of those profiles to specific people, and obtained 13 convictions, either through trials or negotiated pleas. Five cases are pending.

“What we said was, ‘There is no reason for people to get away with rape because of the statute of limitations,’ ” said John Feinblatt, Mayor Michael R. Bloomberg’s criminal justice coordinator. “They shouldn’t be able to hide behind it; they shouldn’t be able to race for time and get over the finish line and leave a victim without a case being solved.”

The success in rape cases has led officials in New York to expand the use of DNA as an investigative tool for not only serious, violent crimes, but also for offenses like serial car theft.

Many states, including Arkansas, Michigan and Delaware, use genetic evidence as a basis for indicting unknown assailants in sex crimes, said Scott Akehurst-Moore, a law librarian at Suffolk University Law School in Boston who has studied and written about the subject. In one well-known case in Delaware, he said, state law was modified to allow DNA indictments for a wide range of crimes including murder, rape, forgery and perjury.

In Sacramento, Calif., a deputy district attorney, Anne Marie Schubert, said the strategy of indicting DNA is applicable not only to sexual assault cases.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Courts in general

Ind. Law - It's the Law: "Hunters must know the laws"

Ken Kosky's award-winning "It's the Law" column in the NWI Times seems to have taken a few weeks off since this Sept. 28th entry, but it is back this week, examining hunting laws. Some quotes:

With firearms season about to begin for deer hunters, conservation officers are reminding hunters of the most commonly violated laws.

Deer firearms season -- which runs from Nov. 14 to Nov. 29 -- is the most popular of the hunting seasons. It also leads to the most violations, Indiana Department of Natural Resources Conservation Officer Gene Davis said.

Davis said the most common violations are:

-- Hunting without a license. Licenses can be bought online at the DNR Web site, http://www.in.gov/dnr, or at some sporting goods stores.

-- Shooting animals out of season or hunting with illegal weapons.

-- Hunting without consent. To arrest someone on the charge of hunting without consent, conservation officers simply need to find someone who can't prove he or she has permission to hunt on the land. The property owner does not need to post "no trespassing signs," and a previous warning from the property owner isn't necessary.

-- Baiting. It isn't illegal to feed deer or put out a salt block for them, but it is illegal to do that and, once the deer are in the habit of coming around, to hunt them.

-- Hunting from the road, hunting from a vehicle and using a spotlight. All are illegal because of the danger of hitting a person or property.

Davis said most of the violations are misdemeanors, and officers usually issue the violator a summons to appear in court.

More from the story:
Davis said most hunters follow the law, and that helps promote public safety and protect wildlife. He said compliance should continue to improve because Indiana began requiring anyone born after Dec. 31, 1986, to take a hunter education course before getting a hunting license. People, however, are permitted to buy three apprentice licenses before having to take the hunter education course.

Still, there are always some who break the law, Davis said. To report violators, call county police. A dispatcher can radio a conservation officer to respond to the complaint. In addition, people can turn in a violator by calling the DNR tip line at (800) TIP-IDNR (847-4367).

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Indiana Law

Courts - More on: The Legacy of Justice John Paul Stevens

Updating this ILB entry from Oct. 17th on C-SPAN's America & the Courts program devoted to Justice Stevens, today Joan Biskupic of USA TODAY has a long story headed "Supreme Court's Stevens keeps cards close to robe." It begins:

WASHINGTON — In the 1970s, soon after Justice John Paul Stevens joined the Supreme Court, he asked a clerk to figure out the average age justices retired.

"I had him make a study," Stevens recalled, "so that I could plan ahead and retire at that age." The average was a bit over 70.

Stevens is now six months shy of 90. He is about to become the fifth-longest-serving justice in history and, more important for the law in America, he has emerged as a skilled tactician crafting liberal majorities on key cases in an era of judicial conservatism.

As leader of the nine-member court's liberal wing, Stevens has forged delicate majorities in areas of the law such as the rights of detainees at Guantanamo Bay, allowing them to get hearings before federal judges. Stevens has had a knack for working with centrist conservatives such as former justice Sandra Day O'Connor and Justice Anthony Kennedy, often the swing vote on cases.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Courts in general

Ind. Gov't. - Re: "Where does Wishard's money come from?"

The ILB does not intend to start covering the Wishard rebuilding issue, but the front-page story by Daniel Lee in today's Indianapolis Star, subtitled "Revenue from nursing homes plays a big role, but critics say those funds can't be counted on" does raise a question. Some quotes from today's long story:

Health and Hospital Corp. owns about 35 nursing homes across Indiana, mostly outside Marion County. The facilities are operated by an outside company, American Senior Communities.

The nursing homes help boost the bottom line.

Health and Hospital Corp.'s overall revenue for 2009 is expected to be $848 million, with nursing homes accounting for 42 percent of that, Chief Financial Officer Dan Sellers said. Wishard Health Services brings in 51 percent of the total.

The Health and Hospital Corp. estimates a surplus of $25 million at the end of 2009, all of which would be allocated to the hospital expansion, Sellers said. Of that, Wishard Health Services will contribute $12.5 million and nursing homes $10.5 million, Sellers said.

As Health and Hospital Corp.'s nursing-home division has grown, so have UPL payments: from $10 million in 2003 to about $48 million in 2009, according to Sellers.

Medicaid may pay a private nursing home $125 a day for a nursing home resident. But because Health and Hospital Corp. is a municipal corporation, it receives an extra $55 per day for each Medicaid resident in its nursing homes, according to Sellers. * * *

• The bottom line: Revenue from nursing homes will account for 42 percent of total revenue this year, Marion County Health and Hospital Corp. Chief Financial Officer Dan Sellers said. The organization owns about 35 nursing homes across Indiana, including American Village in Indianapolis (above).

• The question: Will the Health and Hospital Corp. be able to pay off debt for the Wishard expansion without raising taxes in the event federal funds for nursing-home care decline?

The question is this: Have these private nursing homes in other counties applied for the 10-year retroactive property tax refund discussed in earlier ILB entries from Oct. 4th and Oct. 3rd, under the headings "Requests for retroactive property tax exemptions threaten county budgets" and "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

If so, and if the refund efforts are successful, other counties' property taxpayers will be paying for the Wishard expansion.

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/19/09):

Thursday, October 22nd

Next week's oral arguments before the Supreme Court (week of 10/26/09):

Thursday, October 29th

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 10/19/09):

Monday, October 19th

Next week's oral arguments before the Court of Appeals (week of 10/26/09):

Next Tuesday, October 27th

Next Wednesday, October 28th

Next Thursday, October 29th

Next Friday, October 30th

The past COA webcasts which have been webcast are accessible here, via the calendars

Posted by Marcia Oddi on Monday, October 19, 2009
Posted to Upcoming Oral Arguments

Sunday, October 18, 2009

Ind. Gov't. - "Restoring equity: Two-year budget misses mark on school funding"

Yesterday the ILB posted this South Bend Tribune story headed "Middlebury schools to sue over funding formula."

The ILB has had a number of entries headed "Apparently there are all sorts of surprises in the special session budget", including this one from August 30th and this one from Oct. 4th.

Today Karen Francisco, editorial writer at the Fort Wayne Journal Gazette, has this "Sunday Centerpiece" headed "Restoring equity: Two-year budget misses mark on school funding." Here are just a few quotes from the article:

To a long list of last-minute legislative sleights-of-hand, add the mysterious “restoration grant.”

This never-before-seen calculation emerged in the school-funding formula in the final hours of the General Assembly last June, enriching some Indiana school districts and ignoring others: * * *

As a legislative study committee begins a two-year effort to revise Indiana’s school-funding formula, the example of the restoration grant shouldn’t be overlooked. The goal of devising a formula that treats students equitably is a waste of time if legislators are allowed to nullify its intentions with last-minute maneuvering.

If the state is to continue demanding accountability for school dollars, as it must, lawmakers must also ensure those dollars are distributed equitably, without the last-minute gimmicks that make a mockery of any formula.

That’s what seemingly occurred with the restoration grant. It was devised to ensure school districts received, at minimum, the amount they received in 2009.

In the last hours of the special session, when figures were released detailing how the biennial budget would treat each school district, almost everyone was satisfied with the final figures, given the state’s dismal financial outlook. After the budget was approved, however, a closer look at the numbers showed that some districts were treated better than others. * * *

In spite of assertions that only a handful of people in the state understand the funding formula, it’s quite simple. It’s what happens beyond the base formula that’s baffling.

This year, it was the appearance of the restoration grant. It uses a complex, two-tiered calculation that steers $238 million to 73 percent of the state’s school districts. Indianapolis Public Schools receives an additional $381 per pupil outside the basic formula. Gary Public Schools nets an extra $14.6 million over two years. Hamilton Southeastern Schools, where former Southwest Allen County Superintendent Brian Smith’s new school board is preparing to sue the state for inequitable funding, is in line to receive an extra $6.1 million. * * *

The state has made progress in improving the imbalance left by the 1973 property tax legislation and, on whole, done a better job than many other states in ensuring equity across the board. But a General Assembly that has placed achievement demands on all schools, regardless of available resources, has an obligation to ensure state dollars are distributed fairly.

The study committee’s work on a new formula is a good first step, but it will be a worthless exercise if lawmakers nullify its effects with minimum guarantees, restoration grants and other measures to sway the results to their liking. All schools – and all students – must have a level playing field.

Posted by Marcia Oddi on Sunday, October 18, 2009
Posted to Indiana Government

Ind. Law - Golf cart update; Federal golf cart subsidies

Time for another golf cart update, adding to this long list of earlier ILB golf cart entries.

Recent entries have been about cities and towns considering or adopting ordinances permitting use of golf carts, in accordance with the law passed by the General Assembly earlier this year.

Here are recent stories about two communities whose governing bodies decided NOT to allow golf uses on their streets:

Golf Cart Subsidies. Really. From the opinion section of the Oct. 17th WSJ, this article headed "Cash for Clubbers: Congress's fabulous golf cart stimulus." Some quotes:
The federal credit provides from $4,200 to $5,500 for the purchase of an electric vehicle, and when it is combined with similar incentive plans in many states the tax credits can pay for nearly the entire cost of a golf cart. Even in states that don't have their own tax rebate plans, the federal credit is generous enough to pay for half or even two-thirds of the average sticker price of a cart, which is typically in the range of $8,000 to $10,000. "The purchase of some models could be absolutely free," Roger Gaddis of Ada Electric Cars in Oklahoma said earlier this year. "Is that about the coolest thing you've ever heard?"

The golf-cart boom has followed an IRS ruling that golf carts qualify for the electric-car credit as long as they are also road worthy. These qualifying golf carts are essentially the same as normal golf carts save for adding some safety features, such as side and rearview mirrors and three-point seat belts. They typically can go 15 to 25 miles per hour. * * *

The IRS has also ruled that there's no limit to how many electric cars an individual can buy, so some enterprising profiteers are stocking up on multiple carts while the federal credit lasts, in order to resell them at a profit later. We should note that some states, such as Oklahoma, have caught on to the giveaway and are debating whether to cancel or limit their state credits. But in Congress they're still on the driving range.

Some of you may remember the federal tax break for SUVs - here is an ABC News story from 2003.

Posted by Marcia Oddi on Sunday, October 18, 2009
Posted to Indiana Law

Saturday, October 17, 2009

Environment - More on "A new technique that tapped previously inaccessible supplies of natural gas in the United States is spreading to the rest of the world"

The lead NY Times editorial today begins:

New York State’s environmental regulators have proposed rules to govern drilling in the Marcellus Shale — a subterranean layer of rock curving northward from West Virginia through Ohio and Pennsylvania to New York’s southern tier. The shale contains enormous deposits of natural gas that could add to the region’s energy supplies and lift New York’s upstate economy. If done carefully — and in carefully selected places — drilling should cause minimal environmental harm.

But regulators must amend the rules to bar drilling in the New York City watershed: a million acres of forests and farmlands whose streams supply the reservoirs that send drinking water to eight million people. Accidental leaks could threaten public health and require a filtration system the city can ill afford.

Natural gas is vital to the nation’s energy needs and can be an important bridge between dirty coal and renewable alternatives. The process of extracting it, however, is not risk-free. Known as hydraulic fracturing, it involves shooting a mix of water, sand and chemicals — many of them highly toxic — into the ground at very high pressure to break down the rock formations and free the gas.

The technique is used in 90 percent of the oil and gas operations in the United States. And while most drilling occurs without incident, “fracking” has been implicated in hundreds of cases of impaired or polluted drinking water supplies in states from Alabama to Wyoming.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Environment

Ind. Law - "Direct wine sale ban not about minors"

That is the headline to Dan and Krista Stockman's weekly "Uncorked" column today in the Fort Wayne Journal Gazette. Some quotes:

When you hear lawmakers, wholesalers and lobbyists talk about shipping wine directly to consumers, all they’ll want to talk about is how important it is to keep alcohol out of the hands of minors.

On that single point, they are correct: It is important to keep alcohol out of the hands of minors. It’s something we take seriously enough that people who are not yet 21 cannot even see the Uncorked page on Facebook, though, of course, there’s no way to score wine there.

But in the debate over direct shipment of wine, it is also the largest red herring you’ll ever see.

Last Sunday, The Journal Gazette reported on an Indiana Excise Police program that sent minors into retail establishments trying to buy alcohol. A shocking 35 percent were able to do so.

But the numbers are actually a lot worse than that.

The column breaks down the "35% sold to minors for all types of retail" by:The column continues:
Why does all this matter?

Because minors don’t buy alcohol online. Nowhere in America has any jurisdiction complained about a rash of minors getting alcohol through the Internet.

Why would they when it’s this easy to get it instantly – no credit card needed, no getting an adult to sign for delivery, no waiting for days or weeks for it to be delivered and no shipping charges?

And the really scary thing is that even the purchases the minors make are only a small fraction of the problem.

As we reported in this column a year ago, a four-year study by the Substance Abuse and Mental Health Services Administration showed that most youth get their alcohol from their parents or other adults.

Seven out of 10 teens in the study got their alcohol for free; of the three in 10 who paid for it, two had someone buy for them and one bought it themselves, usually at a store. Meanwhile, none of the tens of thousands of teens surveyed in the study reported buying alcohol online. Zero.

So while the wholesalers and the lawmakers who work for them are jumping up and down about how direct shipping will put alcohol into minors’ hands, they’re ignoring not just the real problem, but a problem so large by comparison it’s beyond laughable.

The real issue is that the wholesalers have a legal monopoly and they want to keep it that way. They spend hundreds of thousands of dollars a year on lobbyists and campaign contributions, and it has gotten them the best lawmakers money can buy: The same people who say they’re pro-farm, pro-small business, pro-family business and pro-agri-tourism sold out the state’s wine industry to the liquor lobby in a move that would have closed every winery in the state but one.

In the “compromise” that followed, we got a Byzantine law that makes it all but impossible for a willing adult to call a winery and order products he could not otherwise buy here.

While they claim direct shipping would imperil the almighty three-tier system that has made them rich, that system has minors buying their product at a rate better than one in every three attempts, and in some cases at almost one in every two.

In the meantime, they run smokescreen debates like whether to allow sales on Sunday.

Until common sense prevails, we can only say “Cheers!” to the majority of retail outlets that refused to sell to minors. Keep up the good work.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Indiana Law

Ind. Gov't. - Still more on "State will cancel its $1.34 billion contract with IBM and other vendors to automate the application process for food stamps, Medicaid and other benefits" [Updated]

The Indianapolis Star editorializes today on the contract cancellation:

Large, troubling questions remain about the fate of a public assistance system that affects one in every six Hoosiers.

How will the transition back to the state from a failed privatization effort be accomplished?

Will IBM express its ire over losing a $1.34 billion contract in the form of legal action, or a threat of legal action serious enough to prompt an expensive buyout?

How long will it take, and at what cost, to clean up a mess that has cost countless elderly, poor, sick and disabled people vital services and imperils countless more?

In sum, a long road must be traveled by Gov. Mitch Daniels and the legislature in the wake of his decision to pull the plug on the most far-reaching of his experiments with hiring out government jobs to private enterprise. But at least he has stopped trudging down the wrong road.

In a remarkable instance of admitting he was mistaken and thanking his critics, Daniels said Thursday the switch to a high-tech, phone- and Internet-based enrollment system for Medicaid, food stamps and other welfare benefits was a sincere effort that plain didn't work.

The main reason: Face time with caseworkers was lost in pursuit of modernization, necessary as the latter was and is.

Daniels, in effect, joined a chorus -- one that had grown to overwhelming proportions over the heated, sometimes heartbreaking months since he signed the 10-year contract with the IBM team in 2006.

It was not just welfare advocacy groups and Democratic politicians who complained. It was United Way agencies, nursing home operators, and some of the governor's fellow Republicans. It was the federal government, which felt compelled to sanction the program. Most of all, it was Hoosiers seeking help, packing public meetings and flooding charities and legislators' offices with tales of lost records, prolonged delays, and inability to make human contact. Charities and legislators, by default, became unofficial caseworkers, and heavily burdened ones.

It took the administration roughly two years to acknowledge that problems were pervasive, not isolated or contrived. It put IBM on notice to make a long list of fixes, fined the firm $260,000, set deadlines and then conceded at last that privatization's promise of better service at lower cost could not be fulfilled in this sensitive area.

Key elements of the project -- computerizing records and fighting fraud -- must remain for the sake of taxpayers as well as deserving recipients. But "streamlining" has to stop where the unique plight of the needy individual begins. Back in charge of a crucial function, government must show it's learned a hard lesson.

The Star's story yesterday, by Mary Beth Schneider and Bill Ruthhart, included this quote:
"This is a rare moment in which I can congratulate the governor for making the right move," said House Speaker B. Patrick Bauer, D-South Bend. "It is the right thing to do to recognize when you make a mistake to adjust, regroup, because there were too many people suffering. There were too many people's lives in danger."

And instead of thinking about legal action, Bauer said IBM "ought to be embarrassed enough to go away or pay us something." But he called the abandonment of this contract "a blow to privatization."

Daniels, though, rejected that his decision says anything about the merits of privatization.

"It has nothing to do with private or public. It had to do with a concept," he said. "If you would use the same concept IBM brought, and every worker was a state worker, you would have had the same results, or worse."

Sen. Vaneta Becker, an Evansville Republican who was among lawmakers raising concerns about the welfare changes, said no issue had generated more complaints and calls to her office in the past two years.

The saddest, she said, was a woman whose application for reauthorization of her Medicaid was denied because she missed an appointment while she was in the hospital.

"She lost her Medicaid, lost her food stamps, lost her transportation," Becker recalled.

For months, the woman tried to negotiate the maze to restore her help.

"On March 1st, she died. On March 2nd, we got her redetermination approved," Becker said. "She might have died anyway, but she never would have suffered the stress that she suffered the last six months of her life."

A side-bar to the story lists "Daniels' other privatization ideas":
Indiana Toll Road

Gov. Mitch Daniels, with a hard-won legislative approval, leased the Indiana Toll Road for $3.8 billion to an Australian-Spanish consortium, Macquarie-Cintra, for 75 years.

• Status: That money is accruing interest and funding infrastructure projects across the state.

Indiana Department of Correction

Daniels approved a four-year, $53.5 million contract, renewable for three two-year terms, for Florida-based GEO Group to run New Castle Correctional Facility, and a $112.2 million, four-year contract with Philadelphia-based Aramark for DOC food services.

• Status: The New Castle contract came under fire after inmates imported from Arizona rioted. Those prisoners are now gone, their places filled by Indiana offenders, and the contract continues.

The Hoosier Lottery

Daniels proposed in December 2006 that the state lease the lottery to raise funds for higher education.

• Status: The governor dropped the idea in October 2008 after the U.S. Department of Justice said such a deal would not comply with federal law.

Some quotes from the story by Angela Mapes Turner and Niki Kelly in the Oct. 16th Fort Wayne Journal Gazette:
Daniels said his administration tried to save thousands of Hoosiers from unnecessary face-to-face meetings to apply for benefits. But incomplete applications and confusion about documentation showed the practice just wouldn’t work.

The contract, originally for 10 years and $1.16 billion, was signed in 2006 and lauded by the Daniels’ administration as a way for the state to reduce fraud and modernize its welfare system.

More than $361 million in state and federal money has been spent on the contract, the Family and Social Services Administration told the state budget committee last month.

But the privatization was fraught with criticism from the beginning, especially because it typically traded trained state caseworkers for contracted call center workers. The state halted the rollout early this year and asked IBM to submit a plan to correct problems. * * *

Daniels thanked the critics – constituents, legislators, advocates – who raised concerns and alarms. And he commended IBM for its effort, noting it hired extra employees.

But the errors and timeliness rates did not show "clear, positive improvement," he said.

Daniels declined to comment on whether there would be a fee to cancel the contract, saying he hoped the situation could be handled amicably. * * *

Provisions in the contract give the state the right to cancel for any reason at any time, and say the state is not liable for further payment after termination.

The 60-day termination timeline gives the Family and Social Services Administration time to develop a detailed implementation plan for the hybrid system.

The state agency essentially will take over IBM’s role with its subcontractors, such as Affiliated Computer Services and Arbor, and will have to hash out agreements with them in that time. It was unclear Thursday whether the state would have to hire back some employees and whether IBM will cut jobs in the state over the cancellation.

Deanna Martin and Ken Kusmer of the AP had this lengthy story which appears in the LCJ and today's Washington Post, among others:
INDIANAPOLIS -- Indiana said it was going to get outsourcing right when it turned welfare eligibility services over to a private contractor in 2007. Now critics say the failed move is the latest warning that states should not allow for-profit companies to run social services.

The ambitious, $1.34 billion effort to automate applications for food stamps, Medicaid and other welfare benefits was being closely watched after states such as Texas had problems when they tried similar plans.

Indiana fired IBM Corp. as the lead contractor on the project Thursday over problems including lost documents, delays in benefit approvals and poor service.

"Other states should beware," said Jim Wallihan, an advocate for senior citizens in Indiana. "Indiana's been a good demonstration, along with Texas, that there's some variables involved that just don't take well to privatization."

From the beginning, officials said Indiana had learned from the experiences of other states and was confident it had a better approach. But its contract with IBM quickly led to a long list of complaints. * * *

Both Indiana and Texas - where thousands of children lost health insurance because of problems from an outsourcing experiment that ended in 2007 - learned a costly lesson, said Celia Hagert, a senior policy analyst at the Center for Public Policy Priorities in Texas.

Yet more states could still consider privatization - touted as a way to save money - as they search for budget cuts during the economic downturn, she said.

"These two huge and costly errors in Texas and Indiana should give any state pause when it thinks that privatization is going to save them money, because it's not," Hagert said. "It causes a lot of damage."

That won't stop states from turning to privatization as a way to cut costs in the future, predicted Dru Stevenson, a professor at the South Texas College of Law who opposes the practice.

"States will continue to fall for this and it will continue to backfire," he said. * * *

While Indiana has cut out IBM, it's keeping other companies, which will now work directly for the state's Family and Social Services Administration.

"The state may be taking a more direct managerial role, but I don't see very much being different despite the fanfare," said Stacy Dean, director of food stamp policy for the Center on Budget and Policy Priorities, a Washington-based think tank and advocate for low-income people.

[Updated Oct. 18th] There are a number of editorials in the Sunday papers today about the cancellation of the contract:

Mizell Stewart III writes in the Evansville C&P under the headline "FSSA intake system needs human touch". A quote:

Helping folks with the system set up to handle the application process for food stamps, Medicaid and the Temporary Assistance to Needy Families program is far from a politically popular issue. One would be hard pressed to find a better illustration of why having three branches of government provides a level of checks and balances that can limit executive power. That Evansville-area lawmakers of both parties united to press the issue with the Daniels administration is also a testament to their ability to work together on issues of common interest.

Those leading the charge included two Republicans, state Sen. Vaneta Becker and state Rep. Suzanne Crouch, and two Democrats, state Rep. Dennis Avery and state Rep. Gail Riecken.

Area lawmakers "were very brave in doing what the governor didn't want to have done," said Roland Echols, a SWIRCA board member.

The pressure from local lawmakers on the governor and FSSA was unrelenting, even after it was clear that FSSA oversight legislation proposed in both houses would fall victim to wrangling over the state budget.

From an editorial in the Fort Wayne Journal Gazette headed "Welcome move to fix privatization of welfare," some quotes (the entire article is well worth reading):
Now, as the state begins to repair the system, it’s important not to overlook the lessons the IBM deal offers:

•Listen to critics. Those who questioned the 10-year contract warned that a similar effort in Texas had failed miserably and that replacing state-employed case workers with call center employees would not work.

•Welfare services are not comparable to BMV services. Interruptions in Medicaid and Temporary Assistance to Needy Families can threaten lives; a delay in mailing a license plate will not.

•FSSA clients are not welfare cheats who should find jobs. The agency serves the elderly, people with mental and physical disabilities and tens of thousands of children. They never asked for the “convenience” of online applications; they need the help of caseworkers trained to recognize their complex needs and guide them through the system.

•Government performs some functions better than the private sector. Eliminating abuses does not justify disrupting the entire system.

While the governor took responsibility for the deal, its undoing calls into question the oversight lawmakers exercised over the largest contract in state history. Except for a handful of legislators – Republican Sen. Vaneta Becker, Republican Rep. Suzanne Crouch and Democratic Reps. Peggy Welch, Gail Riecken and Bill Crawford – there were few questions asked along the way.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Indiana Government

Courts - "Advocates see NYC Astor case a win on financial abuse"

Jennifer Peltz of the AP reports today in the WAPO in a lengthy story that begins:

NEW YORK -- To senior citizens' advocates, Brooke Astor is a Park Avenue poster child for an insidious kind of financial crime.

They kept close tabs as the late philanthropist's son and a lawyer were tried on charges of exploiting her mental decline to raid her nearly $200 million fortune. The AARP called it "the most infamous case of financial elder abuse in recent memory."

Advocates and legal experts saw last week's convictions as a high-wattage signal that such cases, often seen as difficult to prosecute, can succeed - even if few others spur a five-month-long big money trial with boldface names.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Courts in general

Courts - The Legacy of Justice John Paul Stevens

That is the focus of tonight's edition of C-Span's America and the Courts. You can watch it tonight at 7:00 PM ET., or you may want to watch it online in either the abbreviated version (to fit the one-hours format), or the entire program (1:49:00):

Two of Justice John Paul Stevens’ former law clerks joined a panel discussing his legacy on the Supreme Court. The University of California, Davis Law School hosted the event, which covered his opinions on abortion, the right to privacy, and capital punishment.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Courts in general

Ind. Decisions - Another NFP COA decision reclassified

The case is Mark P'Pool v. Indiana Horse Racing Commission (45A04-0812-CV-757 ) - opinion issued 8/27/09; Appellee's motion to publish 9/28/09; Appellant's response to motion to publish 10/1/09; Appellee's motion to publish granted 10/6/09. From the opinion:

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.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Middlebury schools to sue over funding formula"

Ed Ernstes of the South Bend Tribune reported Oct. 14th:

Each year, schools across Indiana count on money from the state. But one local district says the state's school funding formula isn't fair, and that their only option is to sue.

“I think the problem comes down to the fact it's an antiquated formula. It needs to be revisited,” said Jim Conner, Middlebury school superintendent.

Conner and school board members are unhappy with Indiana's current school funding formula. That's why they decided to join two other Indiana school systems in a class action lawsuit. They want the state to change its student tuition support formula that varies across the state.

“Some schools get twice as much as other school corporations,” said Conner. “We get a little less than $100 per student. Other schools are making over twice that.”

The school system wants to at least get the state average. That's roughly $665 more per student than they currently get. Right now, state support is going in the opposite direction. * * *

State Representative Wes Culver believes Middlebury gets less money because of what's called "re-ghosting". He says schools continue to collect money for students over a three year period, even if they have left that school. That means schools with declining enrollment may be getting more money per student than schools, like Middlebury, that have seen an increase in students.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Indiana Government

Ind. Courts - Allen County spends for Courthouse fixes and jail cameras

Some quotes from the story by Amanda Iacone in the Fort Wayne Journal Gazette:

The Allen County Council provided the extra cash Thursday needed to repair hidden damage discovered along the dome of the Courthouse.

The council agreed that the commissioners should tap the county’s cumulative capital fund to pay for the unexpected repairs to four steel beams just below the large dome on the clock tower. The additional repair work is estimated to cost $180,000. * * *

The council agreed to provide $519,000 from the county’s general fund budget to install new digital cameras and a recording system in the Allen County Jail. * * *

Sheriff Ken Fries said the upgrade will increase the number of cameras in the jail, and the new system will store the images for 200 days – about 20 days longer than the period during which tort claims may be filed.

Fries hopes the improved system will cut down on frivolous lawsuits.

About 40 lawsuits are filed against the sheriff’s department each year, and most if not all stem from the jail, he said.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Indiana Courts

Ind. Courts - "Clash of schools, blogs raises free-speech issues" [Updated]

Dan McFeely and Tom Spalding of the Indianapolis Star report today in a story about free speech in high school and college settings. The story begins:

A college student and a high school teacher may have pushed the limits of cyber-commentary by lashing out at their schools via the Internet.

Butler University is suing Jess Zimmerman, alleging libel and defamation. Beth Guthrie's Web criticisms have caused such an uproar that Lawrence Township Schools Superintendent Concetta Raimondi has posted a response on the district's Web site.

The cases have sparked a debate over freedom of speech on the Internet. How far can you go? When does criticism become language that harms reputations?

"We all need institutions to make it much clearer to students and employees that they will sue or that there are legal consequences to saying things on a blog or a Web site," said Don Bates, an instructor in strategic public relations at George Washington University in Washington, D.C.

"I agree, there's free speech, but then again, common law -- defamation, invasion of privacy, liability -- those rules always applied prior to blogging," said Bates, who has studied laws on the subject.

Re the Butler suit:
In the lawsuit, Butler said the comments harmed the reputations of Butler Provost Jamie Comstock and Fine Arts Dean Peter Alexander. Specifically, the university claims 11 posts from Oct. 14, 2008, to Jan. 1, 2009, contained defamatory statements.

Zimmerman said he took the site down the first week of January. But he recently started a new blog to address the allegations made against him in the lawsuit, all of which he denies. The new blog, akadoe.blogspot .com, is getting up to 2,000 hits a day, Zimmerman said. * * *

Adam Kissel, who monitors student speech issues for the Foundation for Individual Rights in Education, said this is the first case of a university suing a student over online speech.

"More universities are starting to police online speech even when it's off campus," Kissel said. "Universities are finding a lot of speech that used to be private that is now in the public eye. And (they) are not comfortable with public criticism." He thinks the Butler lawsuit is short-sighted. * * *

"Academic freedom does not provide protection for defamation and harassment," Fong wrote. "Indeed, the free exchange of ideas demands that faculty, students and staff be protected from defamation and harassments because these are the means by which bullies intimidate others into silence."

Ice Miller attorney Michael Blickman filed Butler's lawsuit Jan. 8, in part, he said, to compel the anonymous blogger (Zimmerman) to come forward, which happened in June in response to subpoenas.

Since then, talks have been held between attorneys for both parties, but there has been no resolution. The Butler employees are seeking damages, and the lawsuit is pending in Marion Superior Court. No hearings have been set, Blickman said.

Re the Lawrence Central dispute:
Lawrence Township's Guthrie, a teacher at Lawrence Central, took her complaints about harassment by a school administrator to that administrator's boss. And then to the superintendent. Not satisfied with the response, she began to post lengthy rants about the case on her personal Web site.

"For over a year I begged my principal for help," Guthrie e-mailed The Indianapolis Star this week.

Her online postings alleged that an administrator subjected her to "spiraling harassment" that included "sexually inappropriate comments" and actions that made Guthrie's tenure at Lawrence Central "unbearable."

As word spread, Superintendent Raimondi addressed the matter in her online posting this week, asserting "there is more than one side to the story," but that the nature of the issue prevented her from going into details.

The Star story concludes:
"Some people mistakenly believe that the Internet is the Wild West where no rules apply. But that is just wrong," attorney Blickman said. "The Internet is simply today's technological equivalent of yesterday's town square. If you defame someone on the Internet, you should be held accountable."
The Student Press Law Center (SPLC) follows high school and college student (but not high school teachers, unless, I would guess, a teacher is the school paper advisor or something similar) free press issues, and includes news flashes.

"The right of students across the country to speak their minds in blogs and text messages" is the subject of this Sept. 27 ILB entry, and its links.

[Updated] I hadn't noticed before, but the Star story today includes a link to the Complaint that Butler University has filed against the blogger, John Doe. The complaint reiterates all the offending statements.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Indiana Courts

Ind. Decisions - "Conviction tossed in 1989 rape case, new trial granted"

Brian E. Mast v. State of Indiana, a 2-1, 3-opinion decision issued by the COA October 13th (see ILB summary here, 3rd case), is the subject of a long story today by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:

The Indiana Court of Appeals ordered a new trial this week in a 20-year-old rape case, overturning a guilty plea reached two decades ago because the defendant had ineffective counsel.

In January 1988, Allen County prosecutors charged Brian E. Mast, then 22, with rape, criminal deviate conduct, battery and burglary. Seven months later, Mast pleaded guilty – admitting to breaking into an apartment and beating and raping a woman, then stabbing her in the chest with a knife.

Allen Superior Court Judge Philip Thieme sentenced Mast to 30 years in prison. But throughout the case, questions were raised about Mast’s competency and mental health, and the judge allowed the plea and the sentencing to occur before all the reports concerning Mast’s mental state were received and reviewed.

That, the appellate court said, is reason for a new trial. * * *

Bryan Corbin, a spokesman for Attorney General Greg Zoeller, could not comment on Mast’s case specifically but said the attorney general’s office works closely with prosecutors to hear their concerns and to see whether there’s a basis to ask the state Supreme Court to hear the case.

For now, Mast, 43, remains at the New Castle Psychiatric Unit of the Indiana Department of Correction.

He is scheduled for release in April 2014, having served nearly his entire prison sentence.

His court file, which fills two oversized folders, is full of his own handwritten legal motions and briefs.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Governor Appoints New Madison Circuit Court Judge"

Updating this ILB entry from Oct. 5th, Dave Stafford of the Anderson Herald Bulletin reported Oct. 16th:

ANDERSON­ — Hundreds witnessed history Friday as Rudolph R. Pyle III took the oath as Madison County’s first African-American judge.

After he was sworn in as Madison Circuit Court judge by Gov. Mitch Daniels, Pyle, 39, thanked God and his parents while fighting back tears.

“You say you’re not going to do that,” he said, wiping his eyes as he joined the county’s other robed judges. An overflow crowd packed into commissioners’ court, spilling into the lobby outside.

“I am keenly aware that this is not my seat. I don’t own it, you do,” Pyle said. “I’m willing to serve as long as you’ll have me.”

Daniels, who selected fellow Republican Pyle to replace former Judge Fredrick R. Spencer, noted the historic nature of his choice but also said his choice was clear.

“The man we are about to swear in to this office has multiple qualifications,” Daniels said, noting Pyle’s experience as a deputy prosecutor, state trooper and law clerk at the Indiana Court of Appeals.

“Yes, this is historic; yes, something unprecedented is happening,” Daniels said. “That has nothing to do with this choice. ... We have the best person.

“Indiana expects him to not merely be a competent judge, but to be a great judge,” he said.

Daniels said the selection of a new judge is among the toughest decisions a governor must make. “There’s no place for cronyism,” he said.

But Daniels did acknowledge at least one shared interest. A known motorcycle ethusiast, the governor paused while listing Pyle’s heady achievements.

“Motorcycle instructor,” he said to gales of laughter.

Pyle pledged to focus on 3 Rs from the bench — respect, reliability and results. He led those gathered to chant the mantra and said they were qualities that the county was accustomed to from its judges.

“They have been providing that level of service,” he said.

Pyle acknowledged difficulties facing county residents, including foreclosures and unemployment, but he said there were positive things happening locally, including in the courts.

“With all the stresses that go on,” he said, “there’s still a sense of excitement when you look at what’s happening in the judiciary. ... In the past two weeks, you could sense it walking around the courthouse.” * * *

Pyle also noted that his appointment and Daniels’ previous selection of David Happe to fill a vacancy in Superior Court 4 placed on the bench two judges under age 40.

Posted by Marcia Oddi on Saturday, October 17, 2009
Posted to Indiana Courts

Friday, October 16, 2009

Law - "Obama Picks Another Ambassador From Big Law"

That is the headline to this item just posted to The Blog of Legal Times by David Ingram, about IU Law-Indy graduate Anne Slaughter Andrew's appointment as Ambassador to Costa Rica.

For a longer article with some bite to it, see this story by Jim Barnes of National Journal, headed "Paybacks In Obama World Can Be Sweet," including a video of husband Joe.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to General Law Related

Environment - IU's Nobel-winning economist looks to resolving the "tragedy of the commons"

John Tierney of the NY Times writes in a long blog entry:

The 2009 Nobel Prize for economics is a useful reminder of how easy it is for scientists to go wrong, especially when their mistake jibes with popular beliefs or political agendas.

Elinor Ostrom of Indiana University
shared the prize for her research into the management of “commons,” which has been a buzzword among ecologists since Garrett Hardin’s 1968 article Science, “The Tragedy of the Commons.” * * *

Dr. Hardin and his disciples had failed to appreciate how often the tragedy of the commons had been averted thanks to ingenious local institutions and customs. Dr. Ostrom won the Nobel for her work analyzing those local institutions. * * *

Here’s a a report for PERC by Donald Leal that summarizes Dr. Ostrom’s research: “Her studies of well-managed, commonly-owned property show that well-defined boundaries, a strong community tradition, and absence of government interference can preserve resources.”

The entry is accompanied by a number of links to learn more.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Environment

Courts - "A List of Obama's Judicial Nominees"

Here is the Washington Post's complete list of who has been nominated and where their nominations stand. It supplements this story today by the Post's Michael A. Fletcher, headed "Obama Criticized as Too Cautious, Slow on Judicial Posts." See also their graphic headed "Judicial confirmations for each administration as of mid-October." I'd guess the light blue figures are meant to represent women.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

K.R., Alleged to be CHINS; J.C. v. IDCS (NFP) - "The limited findings of the trial court are such that we cannot make a determination as to the validity of the determination adjudicating K.R. as a CHINS. We remand this case to the trial court with instructions to issue specific findings and conclusions pursuant to Indiana Code section 31-34-19-10."

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Indiana High Court Allows MySpace Entry As Evidence In Murder Trial" [Updated]

Updating the ILB entry from earlier today where I wrote "By my reading, there is nothing particularly newsworthy about the opinion," Rebecca S. Green's story today in the Fort Wayne Journal Gazette addresses that point. (I should have waited.) Some quotes:

The Indiana Supreme Court has upheld the conviction of a 36-year-old Kosciusko County man accused of beating to death his girlfriend’s 2-year-old daughter in 2007, ruling that statements made on social networking sites can be used to illustrate a defendant’s character. * * *

Clark appealed his conviction and life sentence, protesting the prosecution’s use of his MySpace page to show his character. That evidence was inadmissible, Clark argued, citing Indiana’s rules of evidence.

But the Supreme Court disagreed Thursday, saying that after Clark climbed into the witness stand and opened his mouth to argue he was not guilty of murder but rather reckless homicide, he allowed prosecutors to use his MySpace ramblings to rebut his character.

“Once Clark took the stand to testify along these lines, it was proper to permit the prosecution to confront Clark with his own seemingly prideful declarations that rebutted his defense,” Supreme Court Chief Justice Randall T. Shepherd wrote. “Clark’s MySpace declarations shared much with his boast to the police after he killed Samantha: ‘It’s only a C Felony. I can beat this.’ ”

Typically, statements about the character of the accused are not admissible under the state’s rules of evidence, said Bruce Berner, Seegers Professor of Law at Valparaiso University. But when the defendant makes his or her character an issue through their own statements, then evidence to the contrary can be used by prosecutors, Berner said.

Social networking sites such as MySpace and Facebook are being used in many instances to learn more about individuals, such as by employers researching potential employees.

This is just the next logical step in that, Berner said.

And using the statements on the MySpace page is no different than using statements made from the defendant to an actual person, Berner said.

“This case is not at all unusual because of the law,” Berner said. “Except this guy spouts off on a MySpace page instead of to a guy at a bar. … The format is different, … but other than that, this is classic prosecution rebutting a defendant who put his own character at issue.”

[More] A comment just posted to the WSJ Law Blog entry asks:
How did the Indiana Court determine that the killer was the person who physically typed that entry and posted it to MySpace?
Good point, but I'd guess the issue wasn't raised.

[Updated] I just received this great comment (IMHO) from an ILB reader:

Dear Ms. Oddi:
You invited comments about the MySpace holding from earlier this week. I care little or nothing about the ER 404(b) admissibility of the page content. What alarms me is that the opinion will be read as precedent that web page content is somehow self-authenticating. Even if there was no objection below based on foundational authenticity, there should have been at least a footnote in the opinion acknowledging the need to authenticate such evidence.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One case granted transfer Oct. 15th

The Clerk's transfer list should be available sometime tomorrow or perhaps not until Monday. Meanwhile, the ILB has received notice that transfer was granted today in the following case:

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Indiana Transfer Lists

Ind. Courts - Already, more on the DCS and the courts re who has authority relating to the placement of children in out-of-state rehabilitation and treatment programs

My friend Ed Feigenbaum, editor / publisher of the subscription only Indiana Legislative Insight, must have called out "stop the presses" this morning, in order to squeeze in this item about an ILB posting earlier today:

As the Indiana Supreme Court prepares to hear a case involving legislative issues related to single-subject matter, logrolling, and special legislation in a case from East Chicago involving the 2007 budget bill, the controversy over 2009 budget bill language involving the ability of the Department of Child Services to intervene in out-of-state child placement (instead of judges making the decisions) continues.

The Indiana Law Blog reveals that Indiana University School of Law - Indianapolis Professor Joel Schumm "prepared a brief challenging the ability of DCS to intervene in placement decisions on two grounds: (1) a violation of separation of powers in the original 2008 bill that first authorized any DCS involvement and (2) a violation of the one subject requirement of Article 1, Section 19 by the last-minute addition of a DCS provision in the June 30 special session budget. The motion was filed in a case in Marion County Juvenile Court [October 9]. DCS then reconsidered and approved the out-of-state placement [early last] week. The issue is likely to surface again in juvenile courts whenever DCS refuses to authorize an out-of-state placement."

The "case from East Chicago involving the 2007 budget bill" is Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana, scheduled for oral argument on Oct. 29th. See also this ILB entry from August 21st.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Indiana Courts

Ind. Decisions - "Indiana High Court Allows MySpace Entry As Evidence In Murder Trial"

That is the heading of an entry today in the WSJ Law Blog. I was disappointed in the entry. It is not written by their lead writer, the always sharp Ashby Jones. It also says, incorrectly, that the MySpace question was the sole issue on appeal.

The ILB summary of the opinion in Ian J. Clark v. State is here. By my reading, there is nothing particularly newsworthy about the opinion. Thoughts?

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on the DCS and the courts re who has authority relating to the placement of children in out-of-state rehabilitation and treatment programs

First, some background:

The Indianapolis Star had an editorial Sept. 14th that included the following:

Even given the wacky nature of this year's installment of the Indiana General Assembly, there can be no excuse for changing child-placement law via last-minute insertion in a budget bill.

Authority over out-of-state care for troubled youngsters is an ongoing issue with passionate involvement by many parties. It deserved full-blown debate.

Instead, the state Department of Child Services sought and got what it wanted. Having lost an appeal to the Indiana Supreme Court, resulting in enhanced discretion for local judges in out-of-state placements, DCS Director James Payne went to the legislature and won for himself the final say. Now, local courts can order out-of-state placements in defiance of DCS; but they have to pay the cost out of their own stressed budgets, making the option pretty much moot. * * *

What is lost with the law change is a third-party referee -- the appeals courts -- that can untangle disputes between counties and the state, such as the one that arose over a Madison County teenager and resulted in the Supreme Court loss for DCS. Even if DCS pays the bills and deems itself the proper determiner of children's best interests, most citizens would prefer to have a check on any state agency's power.

Tim Evans of the Star wrote a long story Sept. 8th that gives a good overview of the entire issue, which also involves 2008 legislative changes and several court decisions.

See this ILB entry from Sept. 8th, and its links, and this one from Aug. 30th, which looks at some of the court cases.

Also of interest are the minutes of the interim Commission on Courts' Oct. 1, 2009 meeting.

Now, the point of all this:

Professor Joel Schumm of IU-Indy Law School has prepared a brief challenging the ability of DCS to intervene in placement decisions on two grounds:

(1) a violation of separation of powers in the original 2008 bill that first authorized any DCS involvement and

(2) a violation of the one subject requirement of Article 1, Section 19 by the last-minute addition of a DCS provision in the June 30 special session budget.

The motion was filed in a case in Marion County Juvenile Court last Friday. DCS then reconsidered and approved the out-of-state placement earlier this week.

The issue is likely to surface again in juvenile courts whenever DCS refuses to authorize an out-of-state placement.

The ILB is pleased to post a generic copy of Prof. Schumm's "Memorandum of law in support of ordered DCS to pay for out-of-state placement based on violations of the separation of powers and one subject provisions of the Indiana Constitution." Access it here.

Expect the one-subject challenge to arise in other appeals on other issues in the coming months.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Indiana Courts

Ind. Decisions - "Full 7th Circuit Leaves Verbal Complaints at Employee's Own Risk"

That is the headline to this story today by Lynne Marek The National Law Journal that begins:

The 7th U.S. Circuit Court of Appeals on Thursday declined to hear a workplace retaliation case en banc, letting stand the panel's decision that the Fair Labor Standards Act doesn't protect "unwritten purely verbal complaints."

But three judges dissented. Judges Ilana Rovner, Ann Williams and Diane Wood said their colleagues were wrong not to hear the case because the decision departs from other circuits' decisions and "the long-standing view of the Department of Labor."

"Oral inquiries, protests, and information supplied to an agency representative play no less an important role in the statutory scheme than do letters, e-mails, and sworn statements," Rovner wrote for the dissenting group in Kasten v. Saint-Gobain Performance Plastics Corp.

Access the decision here.

Posted by Marcia Oddi on Friday, October 16, 2009
Posted to Ind. (7th Cir.) Decisions

Thursday, October 15, 2009

Courts - "NCAA Documents in Fraud Case Made Public by Florida State"

Another NCAA story, following on this Oct. 14th story in an unrelated matter.

Today NY Times reporters Katie Thomas and Ken Belson report, in a long story:

Florida State has released nearly 700 pages of documents about an academic fraud case at the university after an appeals court ruled that the records should be made public, revealing fresh details and shedding light on the normally secret process by which the N.C.A.A investigates violations of its rules. * * *

Florida State released the transcript after an appeals court ruled Monday in favor of The Associated Press and other news-media outlets that had argued that records relating to the case should be made public. At issue were records that were maintained by the N.C.A.A. on a secure read-only Web site that was accessible to outside lawyers for Florida State.

Despite the release of documents, the N.C.A.A. appealed Wednesday to Florida’s Supreme Court and said in a statement that it intended to seek all “legal remedies associated with this case.”

“We feel strongly that our private documents are not subject to public records laws,” Bob Williams, an N.C.A.A. spokesman, said in the statement. “The enforcement process and indeed the normal course of our business relies on confidentiality to ensure compliance of N.C.A.A. rules, as directed by our membership.” * * *

Josephine R. Potuto, who attended the Florida State hearing and served on the infractions committee until last year, said secrecy was necessary because the N.C.A.A. does not have the power to subpoena witnesses. “One of the few things that the N.C.A.A. has is a promise to try to keep information private,” she said, while declining to discuss details of the Florida State case.

The story includes a link to a 10 MB, 700-page transcript of the NCAA hearing.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Courts in general

Courts - More on "the future of media in New Jersey "

The story about the defamation suit against the Bergen New Jersey Record, quoted in this long ILB entry from Oct. 12th, is discussed in this WSJ Law Blog entry today headed "New Jersey Defamation Case Turns On Mysteries Of Legal Terminology" that makes two interesting points, quoted below:

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Courts in general

Ind. Gov't. - More on "State will cancel its $1.34 billion contract with IBM and other vendors to automate the application process for food stamps, Medicaid and other benefits"

Updating this ILB entry from earlier this afternoon, the Washington Post has posted the AP report by Ken Kusmer - Kusmer has been on this story since the beginning. Some quotes:

INDIANAPOLIS -- Indiana has ended its $1.34 billion deal with IBM Corp. to automate the application process for food stamps, Medicaid and other benefits, Gov. Mitch Daniels announced Thursday.

Daniels said he canceled the contract with Armonk, N.Y.-based IBM because the company did not make satisfactory progress to improve services as required by a corrective action plan ordered last spring.

IBM was notified Thursday that its contract would be terminated in 60 days. During that time, the state's Family and Social Services Administration will develop a detailed plan for a "hybrid system" that Daniels said will incorporate successful elements of the old system along with parts of the so-called modernized system run by IBM.

The new system will involve companies that had worked with IBM, including Affiliated Computer Services Inc. of Dallas, which will work for FSSA as the project's leader, FSSA spokesman Marcus Barlow said. * * *

The Indiana project was one of the most ambitious efforts by a state to automate welfare systems and move away from cost-intensive, hands-on work by government case workers. Daniels has said repeatedly that he inherited one of the nation's worst welfare systems, which was troubled by fraud, high error rates, long customer wait times and slow progress in moving people from welfare to work. * * *

The government services industry, federal officials and some members of Congress have scrutinized Indiana's effort after a similar one run by Accenture in Texas failed in 2007.

Mary Beth Schneider of the Indianapolis Star has this story. Some quotes:
Gov. Mitch Daniels said today that Indiana is canceling its contract with IBM for welfare services, calling it a mistake that didn’t work.

The cancellation is a stunning turnaround from Daniels’ December 2006 decision to award the $1.34 billion contract.

Instead, Daniels said he would move to a “hybrid” system that keeps some elements of privatization, by having ACS-employed workers continue to handle the initial application for services from people seeking Medicaid, food stamps and Temporary Assistance to Needy Families.

But instead of doing so via call centers, which caused confusion, delays and high error rates, they will do so in person at county offices. Then, a state-employed caseworker still will make the decision on whether to approve the application for assistance.

Daniels said this was a “major mid-course correction.”

State Rep. Peggy Welch, a Bloomington Democrat who had been one of numerous legislators who heard complaints from constituents about the IBM-led system, called it “gutsy” and the right move.

So, too, did House Speaker B. Patrick Bauer, D-South Bend, though he said lawmakers should continue to monitor Indiana’s welfare delivery system as some privatized elements remain. * * *

[Governor Daniels] also thanked IBM. “They did try hard. If resources would have fixed this problem, we wouldn't be making this announcement,” Daniels said. “It wasn't resources. It wasn’t effort. It was a flawed concept that simply did not work out in practice.”

He said there were some positive changes that will be kept – including less fraud and a move to a paperless system for tracking clients’ cases.

He said the hybrid system will still save Indiana taxpayers “tens of millions of dollars” though less than had been expected when the IBM contract was first signed in 2006.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Indiana Government

Ind. Decisions - Supreme Court issues a 2nd opinion today

In Keith Myers v. Wesley C. Leedy, a 13-page, 2-opinion decision, Justice Rucker writes:

This case presents the question of whether a tenant's leasehold interest in property survives a land contract vendee's forfeiture when the tenant is not made a party to the forfeiture action and the vendor has actual knowledge that the tenant is in possession of the property. We conclude that in this case the tenant's leasehold interest survives. * * *

In this case of first impression we hold that where at the time a land contract vendor files suit seeking forfeiture it knows, or upon reasonable diligence should have known, that a tenant is in possession of the property, the tenant's leasehold interest survives the forfeiture action unless the tenant is made a party to the forfeiture litigation. Consistent with this holding the trial court entered judgment in favor of the tenant Leedy. We affirm the judgment of the trial court.

Dickson and Boehm, JJ., concur.
Shepard, C.J., concurs in result with separate opinion in which Sullivan, J., concurs. [CJ Shepard's concurring in result opinion begins, at p. 12] What we have here is an appeal involving a contract sale of 200 acres and a single tenant-farmer in a rural area. The court has used this case to alter the property interests of owners and lenders in billions of dollars of commercial and industrial real estate. There is no need for this sort of sua sponte expansiveness. * * *

[and concludes] I perceive that today's ruling is not really consonant with prevailing national doctrine on mortgages, but would put off that debate until such moment as we might have before us parties like mortgage lenders and owner/mortgagors of apartment buildings, shopping centers, or other commercial or industrial real estate whose world is being altered by today's declaration.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "State will cancel its $1.34 billion contract with IBM and other vendors to automate the application process for food stamps, Medicaid and other benefits"

Channel 6 News has the report.

[More at 4:15 PM] Here, from the just issued press release:

INDIANAPOLIS (October 15, 2009) – Governor Mitch Daniels said today the state has terminated its contract with IBM for the delivery of welfare services. The contract was canceled because the company did not make satisfactory progress to improve services to welfare applicants and recipients under a plan to correct deficiencies.

In its place, the Family and Social Services Administration will go to a hybrid system that will incorporate successful elements of the old welfare delivery system and what is known as the modernized system. The hybrid system will include more face-to-face contact and more localized team-based case management. * * *

Daniels said that for the past several weeks, FSSA has been developing alternate plans for welfare delivery if a decision was made to end the IBM contract. FSSA will replace IBM as the integrator of services and will continue to use contract employees to perform procedures such as application intake and document gathering, and state employees will make eligibility determinations as they do now. This separation is a feature of the modernized system that has resulted in consistent application of standards throughout the state and has reduced fraud and abuse.

The IBM system suffered from two fundamental flaws in concept. The system tried to remove the burden of required face-to-face meetings and it used a task-based approach rather than a case-based approach to process applications.

Face-to-face contact and team-based case management in county offices will again be key elements of the revised welfare delivery system. Additional contractor and state staff will be moved into county offices to increase the number of employees available for case management. The state will continue to shift to paperless case files, rather than the burdensome paper files that clogged the eligibility system.

IBM’s contract will be terminated in 60 days, but there will be a wind down period to transition responsibilities. During the 60-day period, FSSA will develop a detailed implementation plan for the hybrid system.

The rest of this long release should be available here, at the Governor's news release page, shortly.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Indiana Government

Ind. Courts - "Gabriele Eye Institute pleads guilty to fraud" [Updated]

Updating these earlier ILB entries, Justin Leighty of the Elkhart Truth reported yesterday in a story that began:

The Gabriele Eye Institute, P.C., filed a plea agreement today in U.S. District Court, with the corporation admitting that Dr. Philip Gabriele made false diagnoses and performed unnecessary surgeries that cost a total of $205,109.
[Updated 10/16/09] Another story from The Truth, that begins:
SOUTH BEND -- In an unusual situation, the Gabriele Eye Institute, PC, pleaded guilty Wednesday to a criminal charge in U.S. District Court.

The corporation admitted that Dr. Philip Gabriele performed unnecessary procedures and that his staff altered patients' charts, even though Gabriele killed himself in June.

Gabriele's wife, Marcella, was also found dead with her husband in their Elkhart clinic June 15. Authorities ruled her death a homicide.

Their deaths came just days after a federal grand jury indicted them.

In the plea, the Gabriele Eye Institute's equipment will be sold in order to pay $205,109 in restitution to Medicare, Indiana Medicaid and Anthem. It will also forfeit half the proceeds from the sale of the company's Mishawaka headquarters.

St. Joseph Circuit Court appointed 1st Source Bank to handle the company and the Gabriele estate, and it was one of the bank's representatives who admitted to the crime on the corporation's behalf in front of U.S. District Chief Judge Robert Miller.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (8):

Steven Christener v. State of Indiana (NFP)

Treray Levan Pinkston v. State of Indiana (NFP)

Michael Taylor v. State of Indiana (NFP)

Wyatt Kamradt v. State of Indiana (NFP)

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

Ned Garrett v. State of Indiana (NFP)

Gerald Trotter v. State of Indiana (NFP)

Adam Gaunt v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the Supreme Court

In Ian J. Clark v. State, a 10-page, 5-0 opinion an a direct appeal from the Kosciusko Circuit Court, Chief Justice Shepard writes:

A jury found appellant Ian J. Clark guilty of murdering a two-year-old left in his care, and it recommended life in prison without parole, which the trial court imposed. Many of the grounds he urges as reasons for reversal were not preserved at trial. One of his trial objections does pose a novel question: should the trial court have permitted the State to offer into evidence Clark’s entry from the social networking website MySpace? We hold that this electronic evidence was admissible, and we affirm Clark’s conviction and sentence. * * *

[His fiancée Matara Muchowicz] had helped Clark create his own personal entry on MySpace, the social networking website. Clark testified in his own defense, and the prosecutor read to Clark, over defense counsel’s objection, his own description of himself * * *

Clark contends the trial court abused its discretion when it admitted evidence of his MySpace posting. Clark claims this was inadmissible character evidence, citing Indiana Rule of Evidence 404(b) * * *

We conclude that the trial court properly admitted the evidence of Clark’s MySpace page. Clark’s posting contained only statements about himself and in reference to himself. Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue, so Rule 404(b) does not apply.

It is only slightly more difficult to consider whether the MySpace entry was actually probative of any issue at trial. * * * Once Clark took the stand to testify along these lines, it was proper to permit the prosecution to confront Clark with his own seemingly prideful declarations that rebutted his defense. Clark’s MySpace declarations shared much with his boast to the police after he killed Samantha: ―It’s only a C Felony. I can beat this. * * *

[Re Clark's five claims of fundamental error, the Court concludes] The foregoing events during trial did not constitute a ―blatant violation of basic and elementary due process‖ making a fair trial impossible, the standard for fundamental error.

Conclusion. We affirm the conviction and sentence for murder.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Notre Dame sues former employee over tip

Alicia Gallegos reported yesterday in the South Bend Tribune:

SOUTH BEND — A former catering employee for the University of Notre Dame accused of wrongfully taking a $29,000 tip appeared in court Tuesday for the first time.

Sara Gaspar, 47, represented herself at a status hearing before St. Joseph Circuit Court Judge Michael G. Gotsch. An attorney for Notre Dame also attended.

The case against Gaspar revolves around a mistaken gratuity that was placed in Gaspar's bank account while she was a Notre Dame employee.

On April 17 of this year, the former catering employee was to be paid a gratuity of $29.87, but because of an error court documents say a total of $29,387 was deposited into her account.

Instead of returning the money, the recent lawsuit filed by the university alleges that Gaspar spent the extra cash on bills and a new car.

Gaspar admits to spending the cash, but said previously that she tried to alert the university about the large sum that showed up in her bank account, but that her calls went unreturned. The woman said she believed because the money was a gratuity and not wages, she was entitled to keep it. * * *

Gotsch told Gaspar that she may want to obtain legal counsel as he could not give her any type of legal advice.

"I have to hold you to the same standards as a lawyer," he told her. "...That puts you at a disadvantage compared with someone (having gone to law school)."

Gaspar told the judge she still wanted to hire an attorney and planned to keep looking.

Posted by Marcia Oddi on Thursday, October 15, 2009
Posted to Indiana Courts

Wednesday, October 14, 2009

Ind. Courts - Court of Appeals hears blackjack card counting case

The case of Thomas P. Donovan v. Grand Victoria Casino & Resort, L.P. was argued today before a panel consisting of Judges Najam, Kirsch and Bailey at Indiana University Southeast in New Albany.

Grace Schneider of the Louisville Courier Journal was there, and has this story. Some quotes:

An Indianapolis man who was expelled from the Grand Victoria Casino and Resort for counting cards at blackjack is waging a court battle to win back his seat at the riverboat’s gaming tables.

The question raised by Thomas P. Donovan is: Must a casino allow a self-described professional blackjack card counter to play?

Donovan’s lawyer has argued that neither the state nor Grand Victoria, located in Rising Sun near Cincinnati, have rules barring such a practice and therefore can’t exclude him. But Grand Victoria’s lawyer contends that as a privately-owned company, the casino can choose not to do business with anyone for any reason. * * *

As for Donovan’s case, there are none others like it on the books, Judge Edward Najan said during a question-and-answer session after the arguments were presented. In addition to the participating lawyers, the session drew more than 300 students, casino representatives and four judges from local courts, as well as Donovan. He declined to comment afterward. * * *

His lawyer, Marc Sedwick of Indianapolis, argued that his client never attempted to hide his card counting – a method used to track cards being dealt to help determine how to bet.

“Card counting is not cheating” and there is no gaming law or administrative rule that prohibits it, Sedwick said.

Indiana law prohibits gamblers from using mechanical devices or gadgets to try to gain an advantage, and the Indiana Gaming Commission has banned some people from riverboats on various card cheating allegations or for other acts, such as trying to manipulate slot machines.

During Wednesday’s hearing, Sedwick said if a Hoosier casino wants to impose special rules, it can seek permission from the gaming commission. But the casino didn’t ask the state to allow a ban on card counters, he said.

In answer to the judges’ questions, Sedwick said another casino also has barred Donovan for card counting, but another allows him to play on grounds that there’s no rule against it. Neither casino was identified.

Patrick Schomaker, Grand Victoria’s lawyer, acknowledged that card counting isn’t illegal. But he cited a 1994 appeals court decision backing a shopping mall’s right to bar a customer and said casinos have the same right.

Schomaker said Grand Victoria is “a private amusement.” Even though casinos are highly regulated, he said, the business is not a state agency and doesn’t have to accept anyone who visits.

The judges appeared skeptical about casinos screening customers.

“Why not put a sign up and say, ‘Losers welcome?’” asked Judge James Kirsch. “Isn’t that what we have here?”

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Indiana Courts

Ind. Courts - 3rd day of Hamilton Ave. slayings trial wrapup

Check the Indianapolis Star trial coverage page for Day 1 and Day 2. Read Jon Murray's blog to see what happened today.

True/Slant coverage by Austin Considine - Day 1, Day 2 . . .

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Indiana Courts

Courts - "$6.4M fine in Ohio for illegal practice of law"

See this entry from How Appealing.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Courts in general

Ind. Gov't. - Computer problems in Virginia sound somewhat familiar

From the June 30th Washington Post, a story by Anita Kumar that begins:

RICHMOND, June 29 -- Lawmakers are starting to question whether Virginia should renegotiate or cancel a 10-year, $2 billion contract to upgrade the state's computer system, responding to what state officials call years of missed deadlines and poor service by the contractor. * * *

In a statement Monday, the Los Angeles-based company [Northrop Grumman] said it is aware some state agencies have encountered "challenges" and that it has increased personnel and resources on Virginia's project.

A story today, by Anita Kumar and Rosalind S. Helderman, begins:
RICHMOND, Oct. 13 -- A scathing legislative audit released Tuesday shows Virginia's outsourcing of a massive $2 billion computer upgrade has been so troubled that core government services have been disrupted but that canceling the contract could cost the state hundreds of millions of dollars.

The problems have affected almost every state agency that uses a computer -- a prison was left without inbound phone service for hours, the Virginia State Police in Newport News lost Internet access for more than three days and computers in DMV offices crashed.

Northrop Grumman, the giant Los Angeles-based defense company, was awarded the contract, the largest of any kind in Virginia's history, because state officials thought it would provide the best value despite the business's lack of experience managing state computer and communication systems, according to the report by the Joint Legislative Audit and Review Commission.

Decisions made about the contract "cost the taxpayers a lot of money," House Majority Leader H. Morgan Griffith (R-Salem) said. "In these economic times, we don't have $30 to $40 million to be spending because a giant multinational corporation made mistakes."

Sam Abbate, vice president and program manager for Northrop Grumman, said he was optimistic that changes in the project would lead to improvements in the "unique partnership."

"This is an investment in the commonwealth of a very significant order," he said. "Throughout its life, it will improve services for the citizens of Virginia, without question."

Terminating the contract early could cost the state as much as $400 million and leave no one to manage its computer system.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Indiana Government

Ind. Decisions - "Indiana Supreme Court sides with Papa John's in lawsuit"

Yesterday's 3-2 opinion in the case of Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc. is the subject of a good story today by Charles Wilson of the AP, that begins:

Two men who sued Papa John's USA Inc. when they were detained by police after an employee falsely accused one of them of pulling a gun have no case because the statement to police was privileged information under state law, the Indiana Supreme Court has ruled.
And concludes
Kelsey and Johnson sued Tharp and Papa John's for defamation, false imprisonment, negligence and intentional infliction of emotional distress. A Hamilton County judge issued a summary judgment for the defendants, but the Court of Appeals reversed her ruling.

The Supreme Court sided with the trial court, however, when Tharp and Papa John's appealed. For the justices, the key issue was the degree to which citizens' reports of suspected criminal activity are protected under state law.

Three of the justices held that there was insufficient evidence that Tharp had deliberately lied, which would have left his statement unprotected. The 22-page decision noted that Tharp had reported seeing a silver gun with a dark grip pulled out of a holster, and that one of the men had been wearing a black and silver fanny pack in a similar position.

“Whether Tharp's misperception was speculative, negligent, or even reckless, it was not so obviously mistaken to permit a reasonable inference that he lied,” Justice Brent Dickson wrote for the majority.

Two of the justices disagreed. Justice Robert Rucker noted that Tharp pleaded guilty in June 2008 to a charge of false reporting stemming from the Papa John's incident.

“This Court should not, in effect, turn a blind eye to evidence that stands at the very heart of this litigation, namely whether Tharp's statements were made without belief or grounds for belief in their truth. His admissions by way of a guilty plea certainly seem to put the matter to rest,” Rucker wrote in his dissent.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS looks at asset-forfeiture hearings, in a review of a 7th Circuit opinion [Updated]

Jennifer Forsyth of the WSJ Law Blog has the report, including links to a story in today's WSJ, and this conclusion:

The 7th Circuit, in the Chicago case up for review, ruled that the Constitution requires owners to get a more timely chance to reclaim their property. As a bonus, the case features an interesting Sonia Sotomayor twist.

While on the 2nd Circuit, the justice struck down New York City’s forfeiture system, ruling that it didn’t give owners a prompt enough opportunity to challenge seizures. “A car or truck is often central to a person’s livelihood,” she wrote.

Is this another example of that common Sotomayor touch that so appealed to Obama?

From the WSJ story:
The justices will hear a case from Chicago involving six different property owners, including Tyhesha Brunston, who loaned her Chevrolet Impala to a childhood friend who was later arrested in the car and charged with possessing drugs.

"Words can't describe how mad I was" at him, says Ms. Brunston, 30 years old. "He was not supposed to be smoking marijuana in my car."

Illinois law allows "innocent owners" to reclaim seized property. But in practice they may have to wait months -- or in Ms. Brunston's case, three years -- before recovering their cars.

Last year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled that the Constitution requires that owners get a more timely chance to seek return of their property.

The appeals court ordered a trial judge to work with city officials and lawyers representing Ms. Brunston and other owners of seized property to fashion "some sort of mechanism" to test whether seizures were valid.

"The hearing should be prompt but need not be formal," the court said. A neutral judge or hearing officer would decide whether the owner got possession of the property during the lengthy period before the more formal forfeiture proceeding was held -- something like a property equivalent of a bail hearing before trial.

The Cook County state's attorney appealed the decision. The Justice Department, 20 states and several organizations representing state and local government have backed the appeal.

"It's really about government bullying," said Craig Futterman, a University of Chicago law professor representing Ms. Brunston and other owners in the case.

For law enforcement, "forfeiture has become a multibillion-dollar business across the nation," he said, noting that Chicago netted nearly $14 million through asset forfeitures in 2008. "With those powerful interests in taking and seizing and keeping property, there needs to be some kind of check," he said.

A Justice Department fund that receives proceeds from forfeitures of cash and property across the country received $1.2 billion in cash and cash equivalents in the fiscal year ended Sept. 30, 2008, down from $1.4 billion in the previous fiscal year.

In 2000, then-U.S. District Judge Michael Mukasey rejected a challenge to New York City's forfeiture system, which was similar to Chicago's. He found that if police had sufficient reason to arrest a suspect, they also were justified in seizing the property pending a forfeiture hearing months or years later.

That decision was reversed by Justice Sonia Sotomayor, then a judge on the Second Circuit in New York.

"A car or truck is often central to a person's livelihood or daily activities," she wrote. The Constitution gives people a right to force the city to justify seizures "at an early point...in order to minimize any arbitrary or mistaken encroachment upon plaintiffs' use and possession of their property."

There is much more to this WSJ report.

Here is the SCOTUSblog Wiki page for the case, Alvarez v. Smith.

Notice that the State of Indiana has joined a brief on behalf of Petitioner, arguing that the 7th Circuit's decision requiring that owners receive a more timely chance to reclaim their property should be reversed. (It is #7 on this list: Filed State Amicus Briefs 2009 AG Zoeller.)

[Updated at 5:19 PM] See this post-argument Volokh Conspiracy entry by Ilya Somin.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Courts in general | Ind. (7th Cir.) Decisions

Law - Will NCAA repeal its rules prohibiting player agents/counsel?

In a July 26th story, Mark Alesia of the Indianapolis Star wrote:

But it's another pending case that, because of its effect on amateurism rules, "could unravel the way the NCAA operates entirely," said Gary Roberts, dean of the Indiana University School of Law-Indianapolis and an expert in sports law.

In February, an Ohio judge ruled in favor of then-Oklahoma State University pitcher Andy Oliver, striking down an NCAA rule prohibiting players from having agents, as Oliver did in high school.

The judge said the rule -- and an exception allowing players to consult with agents (but not have them negotiate with a pro team) -- "hinders representation by legal counsel" and is "fraught with ethical dilemmas."

The judge in the case also struck down a rule forcing schools to risk financial and other penalties if they don't immediately suspend players the NCAA says have violated a rule, even if there's a court injunction allowing the person to play.

Roberts has written that the NCAA rule is necessary. He argued that it's necessary to prevent cheaters from obtaining short-term injunctions to play in important games. Such injunctions, he wrote, would come from "local judges who often act out of partisan or parochial interests."

A jury trial to decide damages in the Oliver case is scheduled for October.

This afternoon the Star reports:
TOLEDO, Ohio -- The NCAA's settlement of a lawsuit challenging its policy barring athletes from using advisers during contract talks isn't ending debate about the rule.

The NCAA last week agreed to pay $750,000 to former Oklahoma State pitcher Andrew Oliver who sued after he was ruled ineligible for using legal advisers in negotiations with a big league club.

Sports law experts say it was an unusual move for the NCAA, which rarely settles suits brought against it.

Gabe Feldman, director of the sports law program at Tulane University, thinks it could mean the NCAA plans to either eliminate or modify the rule on advisers.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to General Law Related

Ind. Decisions - 7th Circuit issues one Indiana opinion today, and an interesting Illinois opinion

In U.S. v. Jerome Williams Jr. (ND Ind., CJ Miller), an 11-page opinion, Judge Posner writes:

A jury convicted the defendant of drug and firearms offenses. He had two prior felony drug convictions and therefore received a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A). The only questions presented by his appeal that require discussion (the defendant’s other grounds for appeal are either foreclosed by recent circuit precedent or frivolous) are whether the government complied with 21 U.S.C. § 851(a)(1), the “notice of enhancement” statute, and if not whether the defendant is entitled to be resentenced. * * *

The purposes of the statute are to give the defendant an opportunity to contest the use of his prior conviction or convictions to enhance his sentence, and to give him enough information about the potential sentence to enable him to decide intelligently whether to plead guilty or throw the dice by going to trial. * * *

The excuse that the government’s lawyer gave us for these omissions does not reflect well on the Department of Justice. He said that he prepared the notice in haste—long before it was due (for it was filed only six days after the defendant was indicted, yet was not due until the eve of trial, many months later)—because he was afraid he’d forget about it. He thus has offered an allpurpose excuse for premature filings in federal courts of any and all documents. * * *

Apparently the U.S. Attorney’s office for the Northern District of Indiana has no protocol for compliance with section 851, perhaps because our opinion in United States v. Tringali, 71 F.3d 1375, 1382 (7th Cir. 1995), states that “section 851 does not specify the particular form notice of an enhancement must take.” There is similar language in many other cases. [cites omitted] Sometimes the notice contains the wrong date of the offense sought to be used to enhance the defendant’s sentence, or the wrong offense, or the wrong date of the right offense, or otherwise misdescribes the offense, or fails to cite section 851. Sometimes the notice isn’t filed in court; sometimes the notice and the list of convictions are separate documents. It is odd that U.S. Attorneys seem to have so much difficulty in complying unambiguously with a simple statute. But the cases say that as long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough. * * *

The government takes a risk by sloppy compliance (or perhaps it is not compliance at all) with section 851(a)(1): the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel. For these reasons and to spare us pointless appeals, the U.S. Attorney’s office that prosecuted this case would be well advised to get its act together and comply strictly with section 851. It might also be wise for the Department of Justice to notify all the U.S. Attorneys of the importance of strict compliance, as the problem of noncompliance or sloppy compliance seems to be widespread, judging from the number of cases. And it is not as if strict compliance were difficult.

But the Supreme Court has been emphatic that a criminal judgment is not to be reversed as a way of disciplining prosecutors for errors, even egregious ones. Some errors in criminal proceedings are not excusable on grounds of harmlessness, but they are errors (called “structural”) that strike at the heart of criminal justice, like denial of counsel to a defendant who wants representation. See United States v. Gonzales-Lopez, 548 U.S. 140, 149-150 (2006), for a list of such errors. We cannot think of any reason why a violation of section 851(a)(1) should be thought such an error when it does not confuse the defendant or his lawyer. [numerous cites omitted in this paragraph]


Illinois Dunesland Preservation Society v. Ill. Dept. Natural Resources, a 12-page opinion in a case that was argued before a panel consisting of "EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges." Judge Posner writes the opinion. Some quotes:
The defendants refused to display in the display racks in various buildings in the park a scary two-page pamphlet that the plaintiff had prepared. Entitled “Tips for Avoiding Asbestos Contamination at Illinois Beach State Park,” the pamphlet recommends “commonsense approaches . . . for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” * * *

It is not as if the denial of rack space had closed off the only good avenue that the plaintiff has for reaching the patrons of the state park with its message. At argument the plaintiff’s lawyer, repeating an unelaborated statement in his brief, said his client would need a “demonstration permit” in order to be allowed to hand out pamphlets at the entrances to, or sites within, the park, and implied that such a permit might be difficult to obtain. One of the park officials had told him that applying for such a permit “was a potential avenue for the Dunesland Society to access the park in a way that might be able to get their message out.” But he didn’t say it was the only way, and the district judge noted that the plaintiff “did not seek to distribute its flyer within the Park by any means other than inclusion in the display racks.” The judge added that “no special permit or license is required to hand out pamphlets to Park visitors.” The park authorities cannot impose unreasonable barriers to using open public space to convey ideas and opinions (remember that a park is “a traditional public forum”), but there has been no showing that they’ve tried to do this. AFFIRMED.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

Developmental Services Alternatives, Inc. v. Indiana Family and Social Services Admin. is a 31-page opinion affirming the trial court's judgment affirming the order of the administrative law judge (“ALJ”) in favor of the Indiana Family and Social Services Administration (“FSSA”) concerning the determination of certain Medicaid reimbursement rates.

NFP civil opinions today (3):

Greenville Concerned Citizens, Inc., Joanna Danzl, et al. v. Floyd Co. Plan Commission, et al. (NFP) - "We conclude the Commission properly interpreted and applied the frontage requirements and traffic control standards, and accordingly the Commission did not err in granting Lynn primary approval. We also conclude the traffic control standards, as applied to Lynn, did not exceed the Commission’s authority or constitute an unconstitutional exaction. We therefore affirm the trial court’s judgment."

Michael Plasky v. Review Board (NFP) - "The evidence supports the Review Board’s findings and its conclusion that Plasky was terminated for just cause. Based on such findings and conclusion, Plasky was not entitled to unemployment compensation benefits."

In Indiana BMV and Andrew Miller, Commissioner of the Indiana BMV v. Heather Charles (NFP), an 8-page opinion, Judge Crone writes:

The Bureau of Motor Vehicles and its commissioner, Andrew Miller (“the BMV”), appeal an indirect civil contempt order. We reverse and remand. * * *

[Notice] We find the trial court’s de novo hearing both confusing and peculiar. First, we note that the only issue discussed prior to the court’s statement was the insufficiency of notice, and Charles’s counsel had already conceded that issue. Also, neither party presented any witnesses, and the only exhibit presented as evidence was BMV employee Rice’s affidavit stating that her investigation produced no indication that the BMV received notice of the original motion or the ensuing March hearing. Again, this issue was disposed of when the trial court vacated the original contempt order. Thus, the affidavit would not be probative once the hearing had been converted to a hearing on the merits. Other than the one exhibit, the transcript contains only argument from counsel, which the attorney general attempted to limit to the issue of notice. In electing to conduct an immediate de novo hearing, the trial court deprived the BMV of the opportunity to prepare and present evidence and to make and meet arguments that transcended the procedural issue upon which the motion to correct error was based.

In sum, we conclude that the trial court properly vacated the first contempt order, but erred in issuing the second contempt order. Accordingly, we reverse and remand for further proceedings consistent with this decision. However, we address the BMV’s other issues to the extent that they may arise on remand.

[Agency as a “Person”] The BMV contends that, as an agency, it cannot be held in contempt of court. We disagree. Although the civil contempt statute speaks in terms of “a person” who willfully disobeys a court order, Ind. Code § 34-47-3-1, case law supports a trial court’s authority to issue orders against entities. [cites omitted]

[Verification of Petition] The BMV contends that Charles’s unverified petition cannot serve as a basis for a rule to show cause. We agree. * * * Because Charles’s petition lacks verification by oath, it fails to meet the statutory requirements.

NFP criminal opinions today (4):

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

Joseph Fairrow v. State of Indiana (NFP)

George Jones v. State of Indiana (NFP)

Robert Broderick v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indiana Supreme Court Suspends Judge Accused of Theft" [Updated]

Here is the release from the Supreme Court's press office:

The Indiana Supreme Court has suspended Knox County Bicknell City Court Judge David Andrew Moreland, effective immediately. The Indiana Commission on Judicial Qualifications filed a "Notice of Criminal Charges and Request for Suspension" with the Indiana Supreme Court on October 13, 2009. The notice follows this document. After reviewing the request, the Indiana Supreme Court immediately ordered Judge Moreland suspended.

The "Notice of Criminal Charges and Request for Suspension," cause number 42S00-0910-JD-441 was filed by the Indiana Commission on Judicial Qualifications when the Commission learned the Knox County Prosecutor had filed five Class D Felony charges for Theft against Judge Moreland. Commission attorney, Adrienne L. Meiring, notified the Indiana Supreme Court that the felony charges had been filed and asked the Court to suspend Judge Moreland. In the notice, Attorney Meiring pointed to Admission and Discipline Rule 25 V, subsection A of the Indiana Rules of Court. According to the rule:

A judicial officer shall be suspended with pay by the Supreme Court. .. upon the filing of an indictment or information charging the judicial officer in any court in the United States with a crime punishable as a felony under the laws of Indiana or the United States.
After reviewing the Commission's request, the Indiana Supreme Court ordered Judge Moreland suspended until further order of the Court. The Indiana Supreme Court Order also follows this document. The Indiana Supreme Court will appoint a judge pro tem to fill the vacancy left in Bicknell City Court.

David Andrew Moreland, who is not an attorney according to the Commission request, was elected to the bench and began his term January 1, 2008. Any questions related to the criminal charges filed in Knox County should be directed to Mr. Moreland, Knox County Police or Knox County Prosecutors.

Click here for links to the charging documents and court order.

[Update at 11:38 AM]
The Evansville Courier & Press is now reporting:
BICKNELL, Ind. — A Knox County judge and his wife were arrested this morning on accusations they stole thousands of dollars worth of traffic ticket fines from the court's account.

Bicknell City Judge Andrew Moreland, 45, and his wife, Cindy Moreland, 38, turned themselves in at the Knox County Jail and were then released on bond, Indiana State Police said. They are each facing five counts of theft, a class D felony.

Investigators with the Indiana State Board of Accounts conducted an audit of the court's account after receiving information that money was missing. State police detectives joined the investigation in August and authorities then discovered nearly $21,000 worth of traffic ticket fines that had been stolen from the court's account in 2008 and 2009.

Sgt. Todd Ringle said Cindy Moreland helped manage the account and that both she and her husband had access to it. He declined to release specifics on how the money was taken so as not to compromise further investigation. * * *

The Bicknell city judge is an elected position and Andrew Moreland is not an attorney. Anytime someone is issued a traffic ticket in Knox County, the law enforcement officer can cite the motorist into Knox County court or the Bicknell court. It was not immediately clear how many offenses the court handles or how many fees it collects in a year.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Two Lafayette sex offenders told they can go home"

Sophia Voravong reports today in the Lafayette Journal Courier:

For more than two years, Robert Rawles' bedtime routine meant leaving his Lafayette home and driving roughly three miles to sleep at Devon Plaza.

A three-time convicted child molester, Rawles was prohibited by a July 1, 2006, Indiana law from living within 1,000 feet of schools, public parks or youth program centers.

Now under recent Indiana Supreme Court rulings, Rawles and one other Tippecanoe County sex offender who victimized children can return home. Thursday was Rawles' last night at Devon Plaza.

"I've still got kind of a chip on my shoulder for the past two years and all the money wasted," he said. "I've got to work through that for myself. It just devastated me financially."

Rawles' attorney, Ken Falk with the American Civil Liberties Union of Indiana, recently received a letter from Tippecanoe County Prosecutor Pat Harrington stating that residency restrictions for certain sex offenders no longer applied to Rawles.

That's because Rawles' owned his childhood Lafayette home before the restrictions took effect on July 1, 2006.

"It was based upon recent decisions by the Indiana Supreme Court ... that the residency restrictions no longer applies to him," Harrington told the Journal & Courier.

"My office follows the law in Indiana, and the law says it doesn't apply to him.

"We will continue to follow Supreme Court cases and decisions."

More specifically, Harrington's letter references a Supreme Court ruling issued in late June for Anthony W. Pollard, a Blackford County sex offender who died last December.

The 5-0 opinion found that Indiana's residency restrictions violated the Indiana Constitution by retroactively punishing Pollard, who had owned his home 10 years before the 2006 legislation took effect.

Rawles was one of 28 Tippecanoe County sex offenders who were told to move when the sheriff's office and prosecutor's office began enforcing the residency statute in 2007.

Sheriff's Detective Greg Haltom, who maintains the county's registry, said the Pollard decision affects Rawles and one other registered offender. That man's name was not released. * * *

In Tippecanoe and surrounding counties, at least four sex offenders filed civil lawsuits arguing the statute's constitutionality.

All were initially dismissed by local judges.

"It's become very difficult dealing with this issue," Haltom said. "There have been several different levels and layers as it moves forward in the legislature and the judiciary."

Indiana legislators have repeatedly said the residency restrictions were meant to protect youths from child sex offenders. The law itself, however, does not prohibit those offenders from visiting schools, public parks or youth program centers.

In Rawles' situation, it meant only that he could not physically sleep at his Lafayette home.

Here is the ILB summary of the Pollard opinion, and here is a list of related entries. The ILB intends to publish an overview of Indiana sex offender laws and decisions.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Judge Trockman honored for Drug Court role"

From the Evansville Courier & Press today, Lydia X. McCoy reports today in a story that begins:

As an attorney, Vanderburgh Superior Court Judge Wayne Trockman felt like he was doing for others. But once he became a judge, he said he felt like he was doing things to people.

"There no chance of treatment in prison. I started doing some research and began learning that prison is the worst place to send an individual," he said. "There's two types of criminals: those that commit crimes that make you mad ... and the person that scares us, that we should fear."

After hearing and learning about research on recidivism rates and innovative programs, Trockman approached the Indiana Department of Correction with an idea: a re-entry court program that would allow nonviolent offenders to serve their sentences in the treatment facility of a prison instead of the general population.
One of the six Drug Court graduates, Ronnica Fravel, is congratulated by Judge Wayne Trockman during ceremonies on Tuesday.

One of the six Drug Court graduates, Ronnica Fravel, is congratulated by Judge Wayne Trockman during ceremonies on Tuesday.

They accepted. The re-entry court was born and in July became the first to be certified in the state.

For his work with the re-entry court, Trockman has been honored as Judge of the Year by the Indiana Correctional Association.

Posted by Marcia Oddi on Wednesday, October 14, 2009
Posted to Indiana Courts

Tuesday, October 13, 2009

Ind. Courts - Couldn't this appear a little misleading? How do the numbers add up?

The ILB has not posted an entry on the Court's Odyssy/JTAC project in some time. A longer entry is planned for the near future. But this WISH-TV story, dated Oct. 13th, deserves attention. A few quotes from the story, which is based in large part on this press release put out by the Supreme Court press office last week:

HAMILTON COUNTY, Ind. (WISH) - Faster and shared access to court documents, that's the goal of a program that is being installed across Indiana.

The system called Odyssey was launched in Hamilton County Tuesday that now makes 40 Indiana courts in 13 counties. It's a court case management system that started as a pilot in 10 counties and continues to expand.

ILB - That is 40 courts out of well over 400, and 13 counties out of 92. But here is the statement that requires attention:
Ollie Schierholz the Hamilton County Court Administrator commented that as the court administrator I am especially pleased that we have Odyssey because for the tax payers of Hamilton County this is subsequently going to result in an excess of $70,000 every year.

The program is being paid for by a court filing fee established by the General Assembly.

Or, to quote the above-cited press release:
Courts pay no installation costs, training costs, license fees, or annual maintenance costs for Odyssey. Those costs are paid by JTAC from the proceeds of a court filing fee dedicated to the project by the General Assembly.
A press release from Sept. 24th announced that Owen County was now using Odyssey. A quote:
It is part of the Court's effort to equip every Indiana court with a 21st-century case management system and connect courts with each other and state agencies. Courts pay no installation costs, training costs, license fees, or annual maintenance costs for Odyssey. Those costs are paid by JTAC from the proceeds of a court filing fee dedicated to the project by the General Assembly.
Here is the issue. These first few courts' costs are being paid out of the court filing fees accumulated from ALL the counties in the state, whether or not they have Odyssey. But there has to be a tipping point here, when the filing fees are not enough to fund even one more court.

Actual numbers and answers are hard to come by, but it is clear that the $7.00 "automated record keeping fee" now collected for all "civil, criminal, infraction, and ordinance violation actions" is already not enough to finance the project. As discussed at the end of this ILB entry from Feb. 21, 2009, requests by the Court to increase the fee were denied in the 2009 legislative session. The proposal would have upped the $7 fee to $10, starting July 1, 2009. Here is a graphic showing the automated record keeping fee and how it has increased over time:

Increases in Annual Automated Record Keeping Fee Through the Decade
2001 $2 annually
2002 $5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.
2004 $7 annually until 7-1-09, then $4 annually thereafter.
2007 $7 annually until 7-1-11, then $4 annually thereafter.
2009 $7 annually until 7-1-09, then $10 until 7-1-13, then $7 annually thereafter. [proposed]

See also this ILB entry from Nov 6, 2008 - "Making Sense of Court Fees."

The proposed increase from $7 to $10 failed to be adopted in the 2009 session.

From an August 2nd interview with Court of Appeals Judge Paul Mathias, a member of the Judicial Technology and Automation Committee, reported in the Fort Wayne Journal Gazette:

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.

The Fort Wayne Journal Gazette published an article on July 14th that raised a lot of eyebrows. Here is the ILB entry quoting from the story. At the end of the story I posed a number of questions, including:
JTAC picks up much of the cost of counties willing to sign on to the CMS system, so each county that signs on will add to the budgetary total. How much will operating the CMS system alone cost, when 92 counties are involved? How much will court fees need to be raised to cover this?
In an effort to come up with some answers, the Chair of the Senate Budget Committee put this language in the Senate version of the 2009 budget, in place of the requested increase in the automated record keeping fee. The language is not in the final adopted budget, but neither is the fee increase.

It does not seem unreasonable to ask, what are the overall numbers for the JTAC projects, and what funding will be required over time?

Here is a long list of earlier JTAC entries on the ILB.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Indiana Courts

Law - "Virginia Board of Bar Examiners Threatens Retaliatory Action Against Eager Test Takers"

Don't miss this - from Above the Law.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to General Law Related

Ind. Decisions - Supreme Court issues Papa John opinion

In Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc., in a 22-page, 3-2 opinion, the trial court decision is affirmed by the Supreme Court. Here, from the July 11, 2008 COA decision:

Two African-American men, Thomas Williams and Sanford Kelsey, went to a Papa John’s restaurant in Westfield to pick up a pizza they had ordered. They paid for the pizza and left for Williams’ home. An employee falsely reported one of the men pulled a gun. A number of police officers surrounded their vehicle when the two returned home with the pizza. Police detained the men, in handcuffs and on their knees, for an hour and a half while they investigated.

Williams and Kelsey sued Papa John’s and its employee for defamation, false imprisonment, negligence, and intentional infliction of emotional distress. The trial court granted summary judgment for Papa John’s and its employee on the ground the complaint included no defamatory statement; it also found the employee’s statement was privileged even if defamatory and the employee did not act intentionally or in an extreme and outrageous manner. . We reverse and remand for trial.

From today's Supreme Court opinion, Justice Dickson writes for the majority:
This appeal challenges the trial court's grant of summary judgment which found privi-leged a restaurant employee's statements to a passerby and a police officer that a customer had "pulled a gun" inside the store. The plaintiffs, Sanford Kelsey and Thomas Williams, respective-ly, the suspected gun carrier and his companion (neither of whom actually had a gun), sued the restaurant operator, Papa John's U.S.A., Inc., and its employee, Kelly Tharp, for a variety of torts (defamation per se, false imprisonment, intentional infliction of emotional distress, negligent hir-ing, and negligence) seeking damages, including punitive damages. The Court of Appeals reversed and remanded for trial. Williams v. Tharp, 889 N.E.2d 870 (Ind. Ct. App. 2008). We granted transfer and now affirm the trial court's judgment. * * *

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

[From Justice Boehm's dissent, beginning at p. 19]
I respectfully dissent. Although I believe the majority adopts the correct legal standard, I disagree with the majority’s view of the facts reasonably inferrable from the designated evi-dence. Specifically, I agree with the majority that Indiana law confers a broader qualified privilege than some jurisdictions, and requires more than reckless disregard of the truth to support a claim of defamation or false imprisonment based on an inaccurate report to a law enforcement agency of potentially criminal activity. Moreover, for the reasons the majority gives, I agree that it is appropriate to protect citizens from the expense and risks of litigation based on an incorrect report, even if the citizen should have known of the falsity of the report. But here, I believe the facts in the aggregate support the conclusion that Mr. Tharp first recklessly or knowingly made false statements to a private citizen and then knowingly repeated false allegations to law en-forcement officers. The statements to the passerby were not subject to any privilege, and their later repetition to the police was privileged only if the statements were not made with knowledge that they were false. Without a qualified privilege, summary judgment as to the claims for defamation and false imprisonment was wrongly granted, and I believe the designated evidence prec-ludes summary judgment on those issues. * * *

I agree with the Court of Appeals that summary judgment in favor of the defendants should be reversed, and this case should be remanded for trial.

[From Justice Rucker's dissent, beginning on p. 21] I agree with Justice Boehm that "the facts in the aggregate support the conclusion that Mr. Tharp first recklessly or knowingly made false statements to a private citizen and then knowingly repeated false allegations to law enforcement officers." Slip op. at __, (Boehm, J., dissenting). And I do so largely for the reasons Justice Boehm articulates. I write separately however to underscore events occurring after the trial court entered summary judgment in this case and after the plaintiffs filed their notice of appeal that seem to undermine completely Tharp’s claim of qualified privilege. * * *

At an absolute minimum Tharp’s admissions raise a ge-nuine issue of material fact on the issue. In light of what fairly may be characterized as newly discovered evidence surfacing after the trial court entered summary judgment in Tharp’s favor, this Court at the very least should reverse the trial court’s judgment and remand this cause for further proceedings. For this additional reason I respectfully dissent.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 9, 2009

Here is the Clerk's transfer list for the week ending October 9, 2009. It is four pages long.

No transfers was granted last week.
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 Oct. 9, 2009 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 Tuesday, October 13, 2009
Posted to Indiana Transfer Lists

Environment - "Indiana participates in Dana cleanup with $2 million stock distribution" [Updated]

The cleanup of the contaminated former Dana site in Angola has been the subject of a long list of ILB entries. This entry from Feb. 11th included this quote from the Angola Herald-Republican:

The soil and air at and surround the former Dana facility have been polluted with oil and chloride and threaten the city’s water supply. Dana had entered into an arrangement with the Indiana Department of Environmental Management to contain the contamination. However, Dana was absolved of any responsibility through bankruptcy protection.

Before the commissioners approved providing $1 million in Major Moves money for the cleanup on Jan. 20, Commissioner Ron Smith said he was inundated with calls and e-mails from people wanting the county to help pay for the estimated $5.5 million cleanup. After the decision was made, the communication stopped. “That should tell you something,” Smith said Tuesday.

While the commissioners approved providing the money to the city of Angola for either environmental remediation or relocating wells, there were no other conditions placed on the funds. The council tightened up the requirements somewhat. “I am not in favor of just handing them a million dollars,” Councilwoman Linda Hansen said.

Ultimately the measure approved by the council allows the money to be spent once it is no longer in an investment vehicle and invoices are presented. The money can only be spent on environmental cleanup or moving wells as it relates to the Univertical property. The measure passed on a 7-0 vote, though in previous meetings of the council it appeared the measure might only squeak through on a 4-3 vote.

As it stands, with $1 million apiece committed by the county, Angola and Univertical owner Chuck Walker, thhe project is still $2.5 million shy of being funded.

IDEM has said it would commit money from the sale of Dana stock it holds to the project. The value of the stock has been estimated at between $210,000 and $3 million.

“We have identified the range of cash we could expect from the settlement, and will work to ensure the most efficient use of those funds,” said Amy Hartsock, spokeswoman with IDEM. “We’ll be working further with all involved parties concerning funding details, and we look forward to working in partnership with the city and the county.”

Today Attonrey General Greg Zoeller announced:
The State of Indiana will obtain approximately $2 million in stock from the Dana Corp. in connection with the cleanup of the former Dana-Weatherhead industrial site that the State will then transfer to the City of Angola and the current employer there.

The stock distribution stems from an agreement with Dana Corp. resolving environmental claims brought by the Indiana Department of Environmental Management through the Indiana Attorney General’s Office. With the stock distribution, the current owner of the industrial site, Univertical Corp., can continue its Angola operation that employs 55 people.

“Protecting the public from a confirmed source of groundwater pollution and the public’s health are our primary concerns,” Indiana Attorney General Greg Zoeller said. “This public-private partnership will help a local employer remain in the community and keep jobs in Angola.”

Zoeller today joined Angola Mayor Richard Hickman in announcing that the Indiana Department of Environmental Management, or IDEM, would receive approximately 300,000 shares of stock in the reorganized Dana Corp. valued at approximately $2 million. Of that, IDEM will immediately transfer 50,000 shares to Univertical with the rest to the City of Angola. The stock is intended to reimburse the city and Univertical for costs they are contributing for cleaning up pollutants from the industrial site.

The Fort Wayne Journal Gazette had this coverage Oct. 14th.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Environment

Ind. Courts - "Replacing Owen County prosecutor requires tough decision: Republican Fountain was grooming Andree, a Democrat, for the job"

Laura Lane reports today ($$) in the Bloomington Herald-Times:

SPENCER — When it came to fighting crime, politics didn’t much matter to longtime Owen County Prosecutor Allan Fountain.

Republican, Democrat, independent or Libertarian — he didn’t care.

For the lifelong Republican, it was all about working together and putting the bad guys behind bars. He wasn’t interested in their politics, either.

When Fountain died of a heart attack Sept. 26, he was toward the end of his last term in office. Thirty years was enough. There was a plan in place whereby Bob Andree, his deputy for 24 years and a Democrat, would seek the elected office next year as a Democrat, with Fountain’s backing and blessing.

Now, it’s up to the county’s top Republicans to fill the vacancy. Precinct committeemen and women are scheduled to gather at Republican headquarters on the courthouse square at 7 p.m. Oct. 20 for a caucus to select Fountain’s successor.

But will it be the person he wanted to fill his shoes? Will diehard Republicans vote for a Democrat with a qualified candidate from their own party on the ballot? * * *

Nick Robertson, the Republican Party chairman in Owen County, could not be reached Monday for comment.

Anton Neff, his Democratic counterpart, said he understands that the Republicans are entitled to choose someone from their own ranks to complete the remaining 14 months of Fountain’s term. “That’s the way the political process works, and if we were in that same position, the same argument would apply,” he said. “As important as the position is, especially for a rural county, it’s very important that their party take into account all the factors. And whatever decision they make has to be respected, certainly.”

He pointed out that Fountain hand-picked a Democrat, Andree, to be his second in command four terms ago. He did the same thing before Andree when he selected liberal Democrat Frank Nardi, now Owen Circuit Court judge, to be his first deputy prosecutor almost three decades ago.

“I believe it was Allan’s desire to shepherd Bob Andree in to be his successor,” Neff said. “And when you look at the many years of dedication to the county, it would seem like Bob is the choice.”

He said Owen County citizens have proven over the years that they vote not according to party, but by the individual on the ballot.

“They vote for the person. It’s that way every election,” he observed. “People do not vote a straight ticket over here. They don’t let politics get in the way.”

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Ronald Hillebrand v. The Supervised Estate of Charlotte Fern Large, a 9-page opinion, Judge Riley writes:

Hillebrand raises one issue on appeal, which we restate as: Whether the trial court erred in ordering attorney fees to be awarded from the proceeds of a wrongful death action. * * *

Based on the foregoing, we find that attorney fees in a wrongful death action pursuant to I.C. § 34-23-1 are included in the reasonable damages that can be recovered in the action and inure to the exclusive benefit of the estate for the payment of these expenses. Affirmed.

In Ag One Co-Op, et al v. James Andrew Scott , a 10-page opinion, Judge Mathias writes:
Ag-One Coop (“Ag-One”) appeals from the order of the Indiana Worker’s Compensation Board (“the Board”) affirming the order of the Single Hearing Member that determined that Ag-One had acted in bad faith in denying worker’s compensation benefits to James Andrew Scott (“Scott”). Ag-One presents several issues for our review, which we restate as whether the Board properly concluded that Ag-One acted in bad faith in denying Scott benefits when the Board also concluded that Scott’s former employer, Trane Co. (“Trane”), not Ag-One, was liable for Scott’s worker’s compensation claims. We reverse and remand. * * *

If a claim of bad faith does not arise simply because an insurance claim is erroneously denied, we are unable to agree with the Board that Ag-One somehow acted in bad faith in properly denying Scott’s claims for benefits. Indeed, the Board itself affirmed the decision of the Single Hearing Member who concluded that Ag-One was not liable for Scott’s worker’s compensation benefits. We therefore reverse the Board’s decision affirming the Single Hearing Member’s conclusion that Ag-One acted in bad faith and remand with instructions to vacate the order requiring Ag-One to pay damages to Scott.

Brian E. Mast v. State of Indiana is a 2-1, 3-opinion decision. Judge Rley concludes:
Based on the foregoing, we conclude that Mast‘s counsel rendered ineffective assistance by allowing his client to enter into a guilty plea without awaiting the results of his mental evaluation. Reversed and remanded.

Baker, Chief Judge, concurring. [begins, at p. 12] I fully concur with the majority opinion. I write separately to express my surprise that the State did not raise the affirmative defense of laches below and, of course, also fails to raise it on appeal. The equitable doctrine of laches operates to bar consideration of the merits of a claim or right of a person who has neglected for an unreasonable time, under circumstances permitting due diligence, to do what in law should have been done. * * *

Here, the underlying crime occurred and Mast pleaded guilty in 1989. Mast filed a pro se petition for post-conviction relief in 1990 and withdrew it in 1994. He filed a second pro se petition for post-conviction relief in 2001. This petition was later amended by counsel in 2006. In 2008—nearly twenty years after the crime occurred—a hearing was held on Mast‘s petition. I believe that if the State had raised this argument, it would have prevailed. Inasmuch as it declined to do so, however, I fully concur with the majority.

Judge Friedlander, dissenting. [concludes] Based upon the foregoing, I cannot agree that, had they waited for the experts‘ reports before proceeding with the guilty plea, the probability that Mast would have been adjudged incompetent to stand trial was high enough to meet the standard for establishing a claim ineffective assistance of counsel. That being the case, Mast would have been in precisely the same situation that led him to accept the plea deal offered by the State. In other words, in my opinion, Mast has failed to make the requisite showing of prejudice. I would affirm the denial of Mast‘s petition for post-conviction relief.

NFP civil opinions today (3):

Ron Poe v. Lasalle Bank National Association (NFP) - Poe was representing himself in a foreclosure action. The 5-page opinion concludes: "Here, the designated evidence reveals that Poe entered into a land sales contract and defaulted on it. Poe does not dispute that he failed to make the required payments and defaulted on the contract, and he has designated no evidence to create a genuine issue of material fact. Accordingly, LaSalle is entitled to judgment as a matter of law, and the trial court correctly entered summary judgment in its favor."

Earl Budd v. Bruce Lemmon and Alan Finnan (NFP) - "Budd’s petition for a writ of habeas corpus is clearly a request to review the disciplinary procedures of the DOC as they relate to the deprivation and/or restoration of his credit time, and we do not review prison disciplinary decisions. Affirmed."

Adrian Thomas v. Consolidated Property Management (NFP) - Another pro se case: "Thomas has failed to provide us with a cognizable argument as to any issue on appeal. The failure to make a cogent argument results in waiver, and as such, Thomas has waived each of the issues that she purports to raise on appeal."

NFP criminal opinions today (8):

Joseph B. Williams v. State of Indiana (NFP)

Stephen G. Bentle v. State of Indiana (NFP)

Travis Beals v. State of Indiana (NFP)

Troy Martin v. State of Indiana (NFP)

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

Ronald Watkins v. State of Indiana (NFP)

James Albert Lowe v. State of Indiana (NFP)

Armand Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Justices grant rare, revealing interviews to C-SPAN"

Tony Mauro of The National Law Journal gives some examples today and then writes:

These revealing vignettes from justices on a court that is congenitally private were all included in a week's worth of documentaries produced and aired by C-SPAN, the cable channel that hopes one day to broadcast Supreme Court oral arguments. That day still seems far off, but until then the assembled interviews of all nine sitting justices -- and the two retired ones -- conducted in recent months may stand as the fullest visual portrait ever of the modern-day Supreme Court. C-SPAN producer Mark Farkas said in an interview, "I came away understanding the personalities, which are so important to how the Court works. This is a human institution."
For links, see this ILB entry from Oct. 2nd. Everything remains available online.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Courts in general

Environment - "Cleansing the Air at the Expense of Waterways "

The NY Times continues its "Toxic Waters" series today with this very long story, headed "Cleansing the Air at the Expense of Waterways." Some quotes:

Even as a growing number of coal-burning power plants around the nation have moved to reduce their air emissions, many of them are creating another problem: water pollution. Power plants are the nation’s biggest producer of toxic waste, surpassing industries like plastic and paint manufacturing and chemical plants, according to a New York Times analysis of Environmental Protection Agency data.

Much power plant waste once went into the sky, but because of toughened air pollution laws, it now often goes into lakes and rivers, or into landfills that have leaked into nearby groundwater, say regulators and environmentalists.

Officials at the plant here in southwest Pennsylvania — named Hatfield’s Ferry — say it does not pose any health or environmental risks because they have installed equipment to limit the toxins the facility releases into the Monongahela River and elsewhere.

But as the number of scrubbers around the nation increases, environmentalists — including those in Pennsylvania — have become worried. The Environmental Protection Agency projects that by next year, roughly 50 percent of coal-generated electricity in the United States will come from plants that use scrubbers or similar technologies, creating vast new sources of wastewater.

Yet no federal regulations specifically govern the disposal of power plant discharges into waterways or landfills. Some regulators have used laws like the Clean Water Act to combat such pollution. But those laws can prove inadequate, say regulators, because they do not mandate limits on the most dangerous chemicals in power plant waste, like arsenic and lead.

For instance, only one in 43 power plants and other electric utilities across the nation must limit how much barium they dump into nearby waterways, according to a Times analysis of E.P.A. records. Barium, which is commonly found in power plant waste and scrubber wastewater, has been linked to heart problems and diseases in other organs.

Even when power plant emissions are regulated by the Clean Water Act, plants have often violated that law without paying fines or facing other penalties. Ninety percent of 313 coal-fired power plants that have violated the Clean Water Act since 2004 were not fined or otherwise sanctioned by federal or state regulators, according to a Times analysis of Environmental Protection Agency records. * * *

Though the Environmental Protection Agency promised earlier this decade to consider new regulations on power plant waste — and reiterated that pledge after a Tennessee dam break sent 1.1 billion gallons of coal waste into farms and homes last year — federal regulators have yet to issue any major new rules

One reason is that some state governments have long fought new federal regulations, often at the behest of energy executives, say environmentalists and regulators. * * *

In Florida, Georgia, Illinois, Indiana, Maryland, North Carolina, Ohio, Wisconsin and elsewhere, power plants have dumped other chemicals at dangerous concentrations. Few of those plants have ever been sanctioned for those emissions, nor were their discharge permits altered to prevent future pollution.

Records indicate that power plant landfills and other disposal practices have polluted groundwater in more than a dozen states, contaminating the water in some towns with toxic chemicals. A 2007 report published by the E.P.A. suggested that people living near some power plant landfills faced a cancer risk 2,000 times higher than federal health standards.

In 2000, Environmental Protection Agency officials tried to issue stricter controls on power plant waste. But a lobbying campaign by the coal and power industries, as well as public officials in 13 states, blocked the effort. In 2008 alone, according to campaign finance reports, power companies donated $20 million to the political campaigns of federal lawmakers, almost evenly divided between Democrats and Republicans.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Environment

Ind. Courts - More on: Hamilton Avenue slayings case will have intense coverage

Updating yesterday's ILB entry, True/Slant, an "an original content news network" funded by Forbes Media and Velocity Interactive Group, and based in New York, is covering the story. The reporter is Austin Considine. His first story: "Trial begins in the worst mass-murder in Indianapolis history: I’ll be your guide.". Today's wrap-up of day one: "Day One in the Desmond Turner Septuple Slay Trial: ‘Hitting a Lick’", has some interesting observations.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Indiana Courts

Ind. Decisions - "Indiana court's DNA test ruling questions criminal testing procedures "

The Sept. 30, 2-1 Court of Appeals decision in Arturo Garcia-Torres v. State of Indiana -- see ILB summary here -- is the subject of a story in DUI Attorney.com. Here are a few snippits:

An Indiana appeals court recently determined police officers do not need a warrant before forcing the submission of a DNA test, a ruling that calls into question current DUI breath and blood testing policies.

The court ruled on September 30 that the inside of a suspect's cheek can be forcibly scraped in order to sample DNA if the officer has reasonable suspicion the person has committed a crime. The case came as a result of the rape conviction against Arturo Garcia-Torres. The suspect, in this case, was forced to submit a DNA sample without a warrant. The defense argued the practice was a violation of Fourth Amendment protections against illegal search and seizure. * * *

When an appellate court determines DNA tests can be forcefully obtained without a warrant, the same issue in terms of blood testing has obvious parallels. Few can argue that blood tests are not invasive on a physical level, meaning the same defense applied to DNA tests will not stand on this issue. However, many still feel warrants should not be required to retrieve blood tests.

See also this ILB entry from Oct. 8th.

Posted by Marcia Oddi on Tuesday, October 13, 2009
Posted to Indiana Decisions

Monday, October 12, 2009

Courts - A short course on Michigan criminal procedure; and what can go wrong in the reporting [Updated]

Written for Detroit Free Press reporters, Joe Grimm reports the highlights of a crash course in criminal procedure. Access it here.

Most interesting was the introductory paragraph:

Although Michigan courts have spent decades developing criminal procedure, newspapers sometimes have just minutes to describe them. Mistakes can be costly.

Attorney Herschel Fink, who represents the Free Press in court, illustrates the potential for harm with a case filed against the Battle Creek Enquirer. The newspaper ultimately won the case, but only after 13 years and a million dollars in legal fees. The $1 million question? Whether a man had been arrested and charged or just arrested.

Yesterday's Bergen New Jersey Record had this story by Jerry Demarco that began:
The state Supreme Court this week could well determine the future of media in New Jersey when it reviews a lower court ruling that the Bergen Record can be sued for reporting allegations from a lawsuit before the case has gone to trial.

What's known as the "fair reporting privilege" has protected the media from defamation suits when a story discloses accusations made in a court filing. In other words: Newspapers weren't liable for any claims accurately quoted in a lawsuit, whether or not the charges had any relationship to the truth.

A Nov. 2008 appeals court decision against the practice by North Jersey Media Group (which publishes the Bergen Record) turned that approach on its head. Then, in January, the Supremes froze the ruling -- without reversing it -- so that it could review the case. That comes this Wednesday.

Given "legacy" media's tendency to run with any and all allegations contained in lawsuits, no matter who files it, the high court's eventual decision could change the way news is reported in New Jersey.

All this calls to mind the 2008 $1.5 defamation verdict against the Terre Haute Tribune Star - here is a list of ILB entries. This Aug. 26, 2008 story headed "Tribune-Star launches appeal of libel verdict," along with the linked brief supporting the motion to correct errors, describes the background in detail. The T-S subsequently withdrew its appeal.

[Updated 10/13/09]
A story by Michael Ford in the Oct. 11th edition of The Courier, a Russelville Arkansas paper, reports:
The U.S. Supreme Court has declined a request by attorneys for a Russellville man to review a state court’s unanimous decision that a Pope County judge was correct in dismissing a libel lawsuit filed in 2007 against The Courier.

John Tull, an attorney representing The Courier, said Thursday he hopes the decision will be the final chapter of the case. “It’s what we anticipated,” Tull said of the court’s decision. “We thought the Arkansas Supreme Court decided the case on solid grounds. We didn’t think there was any matter left unresolved.” * * *

Previously, Pope County Circuit Judge Dennis C. Sutterfield issued a summary judgment effectively dismissing the case Nov. 19, 2007, after Whiteside sued, asserting a Jan. 11, 2007, article which indicated the alleged rape of a woman occurred during a party as his home in December 2006 was libelous and defamatory.

In March, the Arkansas Supreme Court affirmed Sutterfield’s dismissal, ruling The Courier “fairly and accurately” reported information released — albeit inadvertently — as part of a case report through the Russellville Police Department’s computerized records system.

The court noted the newspaper was not required to investigate whether access to the report was intended, noting the U.S. Supreme Court previously ruled “the First Amendment protects against the “timidity and self-censorship’ that may result from such an approach.”

Whiteside’s attorney claimed in the most recent filing that “unconfirmed preliminary narrative(s)” in a police report were not official public documents, nor were they legally or voluntarily released, disputing whether The Courier was entitled to the benefit of the fair-report privilege — and whether the newspaper had the right to allegedly go beyond the “gist and sting” of the report by mentioning the allegations in the context of a murder trial. * * *

The lawsuit could have curtailed reporters’ ability to use police records and other official documents. Such records comprise the backbone of reports by news organizations, which have relied on the fair-report privilege for decades as a defense. Even if information within the documents turn out to be false, reporters largely remain covered by the privilege.

Posted by Marcia Oddi on Monday, October 12, 2009
Posted to Courts in general

Courts - "Restoring judicial restraint: Running roughshod over GOP precedents would only diminish court's moral authority"

That is the headline to an editorial in yesterday's Detroit Free Press. It begins:

In the decade between 1998 and 2008, a Republican Michigan Supreme Court majority installed by Gov. John Engler dramatically recast the rules by which criminal and civil litigants are obliged to play.

The impact of their decisions was felt in virtually every sphere of state law, from consumer rights and employer-employee relations to environmental regulation and landlord-tenant disputes. The chief beneficiaries were the same interests -- insurance companies, health care providers and other large corporations -- whose campaign donations bankrolled the GOP justices' ascendancy.

By 2006, according to an analysis by the Michigan Law Weekly, the Engler Court (under a succession of GOP chief justices) had reversed 61 state Supreme Court precedents in just five years -- more than three times the 18 overturned by its Democratic-controlled predecessor court in the same period of time.

In a blistering dissent in Rowland v. Washtenaw County Road Commission -- a 2007 case in which the Republican majority reversed two more 30-year-old precedents that had made it easier for injured motorists and pedestrians to sue a negligent municipality -- Democratic Justice Marilyn Kelly said the GOP's disdain for precedent was destroying "the certainty and stability of the law" and undermining respect for the court.

"What has changed ... to compel a complete reversal in this law?" Kelly asked. "There is but one answer, the makeup of the court."

Now the situation has turned around, and the Democrats have a majority on the Michigan Supreme Court. Should they pursue the same course, and overturn the new Republican precedents? That is the question explored in this editorial. It continues:
Now, as the state Supreme Court begins a new term, there's new chief justice at the helm -- none other than Kelly herself. The 2008 election, in which Democratic challenger Diane Hathaway unexpectedly defeated the sitting chief justice, Engler-appointee Cliff Taylor, has given Democrats a tenuous working majority on the state's highest court -- although it hinges, for at least the next 14 months, on the mercurial Justice Elizabeth Weaver, a dissident Republican who feuded bitterly with Taylor and joined with Democratic justices Hathaway and Michael Cavanagh to assure Kelly's election as chief justice.

Which raises the question: Now that Democrats are in charge, will they be any more respectful of the legal precedents they disagree with than their Republican predecessors were?

This newspaper spent much of the last decade criticizing the Engler Court for its obsequious deference to insurance companies and other deep-pocket defendants. We were particularly dismayed by rulings that dramatically enhanced insurers' power to deny legitimate claims, sanctioned contracting practices that bordered on fraud, and stripped Michigan residents of their longstanding right to sue polluters.

And Free Press readers might expect that we would be in the vanguard of those demanding that the new majority hasten to reverse those destructive rulings, which have effectively barred the courthouse door to many citizens with legitimate legal grievances.

But our quarrels with the Engler Court arose over both its work product and its arrogant disregard for precedent. We worried that so many abrupt revisions of settled law would undermine the court's legitimacy, and we shared then-Justice Kelly's alarm at the frequency with which the Engler justices "declared themselves more capable of understanding the law and reaching the 'right' result than any justice who sat before."

In the long run, any majority determined to "correct" all its predecessors' mistakes was a threat to the rule of law. * * *

[I]f the new majority wants to restore respect for its court and the rule of law, Chief Justice Kelly and her colleagues must show greater self-restraint than the Republican zealots they so recently dislodged.

Democrats can hardly reinvigorate stare decisis -- the reasonable conviction that the rules of the game shouldn't change every time a new referee takes the field -- by reversing every questionable call its predecessors made.

In many instances, emasculated litigants will have to look to state legislators, not Democratic justices, to clarify or restore rights the Republican court took away.

That will not please plaintiffs' lawyers and labor unions who've bankrolled Democratic justices in the hopes of rapid relief, but it's the only way those justices can re-establish the court's squandered moral authority.

Liberals should remind themselves that only a similar display of self-restraint on the part of conservative justices preserved such landmark U.S. Supreme Court rulings as Miranda v. Arizona and Roe v. Wade long after the justices who wrote them were gone.

Posted by Marcia Oddi on Monday, October 12, 2009
Posted to Courts in general

Ind. Courts - Hamilton Avenue slayings case will have intense coverage

Jon Murray and Robert King of the Indianapolis Star report today in a lengthy background story on the first day of the trial. Some quotes:

In the days after gunmen slaughtered four adults and three children inside a tidy house, shivers of grief emanating from Hamilton Avenue were met with promises of justice.

Forty months later, on the eve of the first trial, life is still on hold. The empty house, since damaged by fire, sits boarded and fenced off by court order.* * *

Desmond Turner, 31, is accused of firing most of the shots that hit each victim multiple times in the head and torso, but Marion County Prosecutor Carl Brizzi has acknowledged that winning a conviction won't be easy. Turner maintains his innocence.

Brizzi's recent decision to drop his request for the death penalty -- in exchange, Turner agreed to have his trial before a judge, not a jury -- has put some on edge. Brizzi is pursuing life imprisonment without parole. At a second trial in December, he will seek to convict alleged accomplice James Stewart, 33, of murder.* * *
Brizzi vowed to handle the case himself and said the crime screamed for the death penalty -- not to file such a request, he said, would be a miscarriage of justice.

That was then. Brizzi has declined to detail his decision to drop the death penalty until after both trials, but he said it was based in part on his assessment of whether the evidence allowed at Turner's trial would sway a jury. * * *

Authorities did not recover a weapon used in the crime. And early hopes that DNA testing and other physical evidence would provide links to Turner may not have panned out.

"If you can't show the defendant was there by DNA or even fingerprints . . . jurors don't believe in guilt beyond a reasonable doubt," said Henry Karlson, an emeritus professor at Indiana University School of Law-Indianapolis. They bring expectations learned from crime-scene investigation TV shows. Karlson called it " 'CSI' syndrome."

Turner will face a bench trial -- leaving his guilt on about two dozen charges up to Judge Robert Altice, who also will weigh the life sentence request.

"He is the finder of the facts now," said Craig M. Bradley, a law professor at IU's Maurer School of Law in Bloomington. "So he's got to listen to the evidence really carefully and reach the conclusion about guilt or innocence. It is a much more active role for the judge."

Defense attorneys Brent Westerfeld and Lorinda Youngcourt haven't discussed their strategy in detail. Recent filings indicate plans to challenge the accounts of many state witnesses based on possible gang ties, witness intimidation and a long-running feud between Valdez's sons -- Magno Albarran, who was among the victims, and Mario Albarran, who is still alive -- and a family in the negigborhood. * * *

"It's going to be a tough case for prosecutors," [Karlson] said.

And whatever the outcome, he said, it will reflect on Brizzi, a Republican who is publicly undecided about whether to seek a third term next year. "The prosecutor has got his neck out a little on this one."

The Star has set up a "Hamilton Ave. Slayings" web page as a central point for its coverage. Here is Jon Murray's blog, with his coverage of the trial so far.

Charles Wilson's AP coverage, "Trial starts in slaying of 7 at Indianapolis home," is here.

Posted by Marcia Oddi on Monday, October 12, 2009
Posted to Indiana Courts

Ind. Decisions - "Judicial Follies - Encyclopedic Knowledge"

That is the heading of this long opinion piece by Frank Zotter Jr. in today's Ukiah California Daily Journal. The topic, 7th Circuit Judge Terence Evans' 2004 decision in Crue v. Aiken, 370 F.3d 668. A quote:

Evans then launched into a lengthy discussion of how colleges drum up school spirit by giving themselves bizarre nicknames, usually applied to the school's sports teams. As he explained: "In the [area where Evans' court is located], some large schools - Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), the University of Evansville (Purple Aces), and Southern Illinois (Salukis) - have nicknames that would make any list of ones that are pretty cool. And small schools in this circuit are no slouches in the cool nickname department. One would have a hard time beating the Hustlin' Quakers of Earlham College (Richmond, Indiana), the Little Giants of Wabash College (Crawfordsville, Indiana), the Mastodons of Indiana University-Purdue University-Fort Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the Illinois Institute of Technology."

He also included these helpful facts: "Some schools adorn their nicknames with adjectives - like Golden,' for instance. Thus, we see Golden Bears, Golden Bobcats, Golden Buffaloes, Golden Bulls, Golden Eagles (15 of them alone!), Golden Flashes, Golden Flyers, Golden Gophers, Golden Griffins, Golden Grizzlies, Golden Gusties, Golden Hurricanes, Golden Knights, Golden Lions, Golden Panthers, Golden Rams, Golden Seals, Golden Suns, Golden Tigers, and Golden Tornadoes cheering on their teams."

The point of the opinion piece? It is not exactly clear.

Posted by Marcia Oddi on Monday, October 12, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - Making the case for elected judges

Tony Mauro of The Blog of Legal Times reports:

Two Pennsylvania Supreme Court justices made the case for electing judges before an audience of the American Academy of Appellate Lawyers in Philadelphia on Friday.

"Appointment is no less political. It's political at a back room level," said Justice Seamus McCaffery, a former Marine and Philadelphia police officer who was elected to the commonwealth's highest court in 2007. McCaffery minced no words as he said federal judges are often picked based on some political deal or connections involving a state's senators, or result from contributions to political candidates by a nominee's law firm over time. To anyone who thinks federal judgeships are appointed based only on merit, McCaffery said, "I've got some bridges to sell you."

Elected judges, on the other hand, are accountable and bring diversity to the bench, said McCaffery. Pointing to his own career as a police officer, McCaffery said he would never have been chosen for an appointive judgeship. "I'm electable, not appointable," he said. "It's insulting to say to the public, 'you're not smart enough to elect your judges.'"

Justice Debra Todd also said that appointed judges "are not in any way superior to elected judges." Among other benefits, she said, elections give "finality and certainty" to filling vacancies, whereas federal judgeships can go unfilled for months or years depending on political dynamics in Washington. She acknowledged that judicial elections have become more contentious and political in recent years, and that she was undrr pressure to answer questionnaires about her views on a range of issues, but she resisted. "That did lose me some votes, no doubt."

The judges were luncheon speakers at the academy's fall meeting, where other panels focused on the impact of recent Supreme Court rulings on judicial elections and recusals, most notably Caperton v. A.T. Massey Coal Co. That decision in June said campaign spending by parties in litigation before a court can in some circumstances be so large as to create a due process problem that requires an elected judge to recuse.

The ruling has had limited impact so far and has resulted in few if any recusal motions in other cases, said George Patton Jr. of Bose McKinney & Evans in D.C., who co-authored a brief in the case for the Conference of Chief Justices. To some, "it does look a lot like Bush v. Gore," said Patton, in the sense of possibly turning out to be a decision that applies only to the specific case before the Court, with little or no impact in other cases. * * *

One disincentive against filing a motion to recuse has always been a lawyer's fear of antagonizing the judge who is the target of the motion. And the Caperton ruling won't change that dynamic, several speakers indicated.

Here is a list of earlier ILB entries referencing Caperton v. Masey.

Posted by Marcia Oddi on Monday, October 12, 2009
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/12/09):

Thursday, October 15th

Next week's oral arguments before the Supreme Court (week of 10/19/09):

Next Thursday, October 22nd

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 10/12/09):

Tuesday, October 13th

Wednesday, October 14th

Next week's oral arguments before the Court of Appeals (week of 10/19/09):

Next Monday, October 19th

The past COA webcasts which have been webcast are accessible here, via the calendars

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, October 12, 2009
Posted to Upcoming Oral Arguments

Sunday, October 11, 2009

Ind. Courts - Vanderburgh Circuit Court juror admonished for Facebook entry during trial

The ILB has had a number of entries relating to "Managing the electronic communication revolution in the Indiana courtroom."

Today Lydia X. McCoy reports in the Evansville Courier & Press:

A juror in the Joaquin Starks' trial was admonished Friday morning after the court discovered he had posted "jury duty; day one complete" on his Facebook page.

Starks was charged in the shooting death of his former girlfriend, Ida Jefferson. Jefferson was found shot in the head outside Ross Center Apartments on Feb. 29, 2008.

Starks was found guilty of murder late Friday.

Jurors are not supposed to discuss the case with anyone except other jurors, do any type of research on the case or read any news reports about the case during a trial.

During a hearing outside of the rest of the jury, the juror, Daniel Krueger, told the court what he had posted and that he received two comments from acquaintances. The first said, "Guilty, next" and the other was from someone talking about their experience serving on a jury.

When asked by [Vanderburgh Circuit Court] Magistrate Kelli Fink, who is presiding in the case, whether he had received any other information about the case outside of evidence presented at trial, Krueger said he had not and that he could continue to remain impartial when making his decision.

Krueger said after receiving a call from the court Thursday stating not to go on the page, he deleted the post and has remained off the site.

Despite objections from Starks' attorney, Chris Lenn, Krueger was allowed to remain on the jury, but he was ordered to not discuss the incident with the other jurors.

In his objection, Lenn said it was important to know what actually was said and posted on the site. He also wanted to subpoena Facebook for all the postings to Krueger's page since he had received his jury notice.

"There is not to be jury communication outside of this case," Lenn said.

"I believe my client has a right to see that. I move for a mistrial because he might have been independently tainted by improper communication on Facebook."

Fink said they had placed Krueger under oath and asked him about the postings.

His posting "was very limited, and I think an innocent posting," she said. "We're in an area of law that hasn't been dealt with yet."

The ILB reported in late July that "an Indiana Supreme Court committee took up the issue of banning iPhones, cell phones, laptops, social network sites such as Twitter and Facebook, by jurors while they are deliberating a case."

However, the ILB has heard nothing more, except for a paragraph by Anita Ramasastry in a Findlaw column, reported in this August 15th ILB entry:

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.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to Indiana Courts

Courts - "NYC Astor trial shines light on jury-room strife"

This AP story by Jennifer Peltz takes a comprehensive look at the issue of jury tensions.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to Courts in general

Law - "Top Judge Calls Calif. Government ‘Dysfunctional’ "

And I think most would agree. Jennifer Steinhauer's story in the NY Times begins:

LOS ANGELES — In a rare public rebuke of state government and polices delivered by a sitting judge, the chief justice of the California Supreme Court scathingly criticized the state’s reliance on the referendum process, arguing that it has “rendered our state government dysfunctional.”

In remarks prepared for a speech Saturday before the American Academy of Arts and Sciences in Cambridge, Mass., the chief justice, Ronald M. George, denounced the widespread use of the referendum process to change state laws and constitutions. And he derided California as out of control, with voters deciding on everything from how parts of the state budget are spent to how farm animals are managed.

The state is unusual, he said, because it prohibits its Legislature from amending or repealing many types of laws without voter approval, essentially hamstringing that body — and the executive branch.

Justice George’s remarks come at a time of severe budget crisis in California stemming from a variety of factors, including mandates from ballot initiatives. Several groups on the left and the right are clamoring for changes to the state’s Constitution, including reigning in of the direct democracy that has defined much of how the state operates. This week, hundreds of people will convene in Sacramento for a conference on constitutional reform. A spokesman for Gov. Arnold Schwarzenegger declined to comment on the justice’s speech.

Justice George wrote that perhaps the “most consequential” impact of the referendum process is that it limits “how elected officials may raise and spend revenue.” He added, “California’s lawmakers, and the state itself, have been placed in a fiscal straitjacket by a steep two-thirds-vote requirement — imposed at the ballot box — for raising taxes.”

He added: “Much of this constitutional and statutory structure has been brought about not by legislative fact-gathering and deliberation, but rather by the approval of voter initiative measures, often funded by special interests. These interests are allowed under the law to pay a bounty to signature-gatherers for each signer. Frequent amendments — coupled with the implicit threat of more in the future — have rendered our state government dysfunctional, at least in times of severe economic decline.”

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to General Law Related

Ind. Decisions - More on: "Restaurants don’t have standing to challenge parking in Jeffersonville"

Updating this ILB entry from August 7th, David A. Mann of the Jeffersonville News & Tribune reports in a story headed "Court won’t re-hear parking suit: Reconsideration requested following Supreme Court decision":

The Indiana Court of Appeals this week denied a request to re-hear a case, filed by Buckhead Mountain Grill and Rocky’s Italian Grill, against the city of Jeffersonville.

The case, ongoing since 2008, relates to parking on Riverside Drive on what’s known as Restaurant Row.

In August, the court had ruled that Buckhead and Rocky’s did not have standing to make a legal challenge because they could not demonstrate monetary damages.

The next level of appeal would be the Indiana Supreme Court.

The dispute started in 2006, MHI Hospitality, a hotel management company, purchased what had been a Ramada Inn along Riverside Drive — right across the street from Buckhead and Rocky’s.

The hotel is now the Sheraton Riverside, following a remodeling and rebranding.

In 2007, prior to the hotel’s opening, the Jeffersonville Board of Zoning Appeals granted MHI a parking waiver, allowing the company to open a Bearno’s Pizza in what had been the Ramada Inn’s old conference room.

Subsequently Buckhead and Rocky’s filed a lawsuit against the city and MHI, alleging that the parking waiver would adversely affect the value of their property.

The trial court heard the case in October 2008 and affirmed the city’s variance.

The decision the appeals court issued in August was based on the issue of standing. The court said “there is no evidence that Buckhead and Rocky’s would suffer any monetary loss by the granting of the developmental standards variance.”

The petition that the plaintiffs made to rehear the case was based on a recent Indiana Supreme Court case that also addressed the issue of standing.

The plaintiffs’ argument was that in order to argue the issue of standing, a motion to dismiss needed to be filed, said attorney Larry Wilder, who represented the city. When the issue was brought up in the Riverside Drive case, it was done during oral arguments, not a motion to dismiss.

Attorney Greg Fifer, who represented Buckhead and Rocky’s, could not be reached for comment last week.

“They determined that they would not hear the case,” Wilder said.

“Quite frankly [Fifer] raises a very interesting point of law. I don’t think that their position is frivolous by no means.”

Wilder said he doesn’t believe it would be unreasonable for the plaintiffs to request a transfer to the Indiana Supreme Court because of the question.

However, it’s unclear as to whether such a transfer would be requested by the plaintiffs.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to Ind. App.Ct. Decisions

Law - "Justice Dept. to Review Bush Policy on DNA Test Waivers"

Jerry Markon of the Washington Post reports today in a long story that begins:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes. Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty.

"It's a mean-spirited policy. Truth, ascertained by science, should trump the finality of a conviction," said Peter Neufeld, co-director of the New York-based Innocence Project. He said the waivers are effectively "gutting the impact" of the 2004 law because 97 percent of federal convictions result from guilty pleas.

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision. Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to General Law Related

Ind. Law - Applications for handgun permit may receive inadequate vetting

Mark Alesia, Heather Gillers, Tim Evans and Mark Nichols report the results of a major Indianapolis Star investigation on who gets gun permits in a lengthy story today. It begins:

One Indiana man pressed the barrel of a loaded handgun into the chest of a woman holding her 1-year-old son.

Another's handgun was confiscated by police three times -- twice for shooting in public. A third man was arrested for allegedly dealing crack cocaine and later was accused of beating his girlfriend.

But it's not merely those actions that concern law enforcement officials and others on both sides of the polarizing handgun debate. It's what happened next.

In each of these three cases, the person later applied for a permit to carry a handgun in public. And in all of these cases -- and hundreds of other questionable ones uncovered by The Indianapolis Star -- the Indiana State Police granted that request, often over the objections of the local police department and even though, in some cases, it appears the State Police had a legal obligation to deny the permit.

Even worse, many of those people committed subsequent crimes, some with the guns they were legally permitted to carry.

The story has several side-bars, including: "Should these Hoosiers have been allowed to carry guns in public? here; and a database of 300.000 gun carry permit holders, here.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to Indiana Law

Law - "President Obama has yet to name NW Indiana's U.S. attorney general, district court judge"

Andy Grimm reports today in the Gary Post Tribune:

Nearly a year into his term, Obama has yet to fill two of the most coveted political appointments in the region -- the Hammond-based U.S. Attorney post and a U.S. District Court judgeship seated in South Bend.

U.S. Attorney appointments often change with a new White House administration. David Capp, a Democrat, has the office now, but there's been no word from the White House on whether he would be retained.

The judgeship in South Bend is vacant since Judge Allen Sharp, who was on senior status, died in July.

The tradition of filling federal posts such as these calls for the senator aligned with the president's party, in this case Sen. Evan Bayh, to forward names to the White House for consideration. The senator's recommendation in turn begins a vetting process of FBI background checks and interviewing.

But Obama has filled just 15 of the 93 U.S. Attorney posts, with another 12 recommendations awaiting review by the Senate Judiciary Committee and three awaiting confirmation by the Senate.

A Bayh spokesman on Thursday said there was "nothing new on the judicial/attorney appointment front," a statement observers insisted could mean Bayh had sent recommendations to Obama, but had yet to announce them.

"I have never seen this process create more speculation," said Bryan Truitt, a Valparaiso attorney with an extensive federal practice. "And every rumor so far has been dead wrong."

The South Bend seat is among the oldest vacancies in the District Court system, left open since Sharp took senior status, a sort of semiretirement, in 2007.

Capp was reportedly being vetted for the South Bend judge seat in the waning days of the Bush administration, though his chances were dashed when the Senate Judiciary Committee announced in late 2008 it would not consider further appointments.

Lake County Prosecutor Bernard Carter's name has surfaced as a potential candidate to fill the judge post. If that were to happen, Carter would become the first African-American to serve on the federal bench in the Northern District of Indiana.

Carter on Friday said he was honored to hear his name, but said he was not pursuing the job.

"I'm in my fourth term, and I'm raising money and campaigning for another," Carter said. "It's always an honor to be considered, but I have not been contacted by anyone about (the judgeship). I like the job I have."

Lake County Judge Salvador Vasquez, who would be only the second Hispanic appointed to a Northern Indiana District judgeship, also has expressed interest in the post. Vasquez declined comment last week.

The vacancy is causing a strain, at least for Chief Judge Robert Miller Jr., say court observers. Miller is the sole judge in the South Bend courthouse, with Judge Christopher Nuechterlein the lone magistrate. Sharp, who was debilitated by kidney disease that prompted his move to senior status, was supposed to continue to take a partial caseload with other judges in the district helping pick up the slack. That plan was dashed when Sharp died in July.

Carter's predecessor in the Lake County Prosecutor's Office, former U.S. Attorney Jon DeGuilio, has also been named as a top contender. DeGuilio, an officer at Munster-based Peoples Bank, did not return calls from the Post-Tribune.

Names remaining in circulation for the U.S. Attorney's post:

* Capp, a Porter County resident, was appointed to replace George W. Bush appointee Joseph VanBokkelen, who resigned to become a federal judge in Hammond. A veteran of more than 30 years in the Hammond federal prosecutor's office, Capp has served in the top job several times on an interim basis, under Democratic and Republican administrations.

* Lake County Judge Thomas Stefaniak, a former state prosecutor, has openly sought the post;

* Lake County Sheriff Roy Dominguez, who has announced plans to run for governor in 2012, is among the most often-mentioned candidates for the job;

* Schererville resident James Wieser, a longtime Democrat, lawyer and former county councilman, won points with the Obama campaign staff for his handling of a lawsuit over satellite voting offices set up for the election.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to General Law Related

Ind. Law - "Cold-med law snares allergy sufferers: Pseudoephedrine buyers limited to 3 grams a week"

That is the headline to Rebecca S. Green's story today in the Fort Wayne Journal Gazette:

A few months ago, conversation on WAJI-FM – 95.1’s “Majic in the Morning” turned from light-hearted banter to law and order – specifically host Jeannette Rinard’s two-week appearance on the Web site Indiana’s Most Wanted.

The 42-year-old Steuben County resident, military mom and self-described non-rule-breaker had a warrant out for her arrest.

Her crime? Violating the state’s pseudoephedrine purchase law.

Enacted in 2005 with the goal of making it difficult for methamphetamine cooks to buy pseudoephedrine, Indiana’s law prohibits consumers from buying more than 3 grams of the drug in a seven-day period. It is more restrictive than the federal Combat Meth Act, enacted around the same time that bans the purchase of more than 3 grams of pseudoephedrine in a day.

Those charged with busting meth labs and dealing with the cleanup say Indiana’s law is no longer having much effect in slowing the stream of ephedrine and pseudoephedrine – the most important methamphetamine ingredient – to meth cooks.

And for people like Rinard, it created an expensive and embarrassing experience from which she’s just now extracted herself.

Rinard has allergies, made worse at the end of summer by seasonal hay fever.

She’s not quite sure when she made the criminal purchase of decongestant, but she does remember getting into her car to take her cat to the vet, only to be met by a Steuben County Sheriff’s Department deputy in her driveway.

She felt her heart jump, worrying whether something had happened to her son, who is in the military.

“(The deputy) looked at me really funny and asked if I had allergies,” Rinard said.

She said yes, and he told her he had a warrant for her arrest.

“I was in shock,” Rinard said. “Luckily, I don’t look like a meth user.”

The deputy told her she could go ahead and take her cat to the vet but to come into the sheriff’s department the next day to sort it out, she said.

Rinard called her attorney, Bill Eberhard, who told her not to go to the police station because they would arrest her and book her into the jail. Instead, Eberhard handled it for her, calling the Steuben County Prosecutor’s Office and offering proof of his client’s end-of-summer allergies.

But it cost Rinard $500 to fight the misdemeanor charge and weeks of anxiety while she lived under the shadow of the outstanding arrest warrant. * * *

After Indiana’s law was enacted, all products containing pseudoephedrine were moved behind the pharmacy counter at groceries and drugstores. Buyers had to sign for it and present valid identification.

For the first six to nine months after the law was in existence, it seemed to work, said Indiana State Police 1st Sgt. Niki Crawford, who heads the state’s Meth Suppression Unit.

But after that, the meth addicts and cookers figured out a way around it, Crawford said, and continued to make the deadly drug at a near-record pace, with 1,059 labs busted in 2008, according to the state police.

2009 is on track to be a banner year, with 794 labs broken up so far, she said.

“Criminals figure out a way to skirt the law, and they have figured out a way to skirt this law,” Crawford said.

The law is not without its benefits, however.

“We use it as a starting point,” said Jeff Stineberg, an Allen County deputy prosecutor in charge of drug prosecution. * * *

It can be easy to go over the pseudoephedrine purchase limits without knowing it, especially if you are stocking up for allergy or cold season.

Steuben County Deputy Prosecutor Jeremy Musser handles the pseudoephedrine violations in the northern county, one frequently plagued by meth activity.

He said he and the police officers try to weed out the innocent purchases from the logs.

Sometimes before he files charges, he said, he’ll talk to the officer to find out more about the name on the list. But in the end, it’s his job to charge.

“The law is the law, and I’m going to prosecute,” Musser said.

Rinard’s attorney, Bill Eberhard, lives and works in LaGrange County and sees firsthand the effect of methamphetamine use in the small community, in all areas of the legal field, from divorce to bankruptcy to criminal charges.

But he sees a need for more common-sense application – not just by law enforcement and prosecutors but by pharmacists as well. * * *

For Rinard, she now buys her pseudoephedrine with a prescription, which people can do if they know they’re going to need more than 3 grams of the drug.

She would like to see drugstores do a better job of publicizing the seven-day limit, and maybe see prosecutors do a better job of communicating with people who may be innocently on the purchase logs.

“They could save money if they’d just send out a letter saying, ‘Hey, you’re name’s on the list; … are you aware of this time frame?’ ” she said. “It’s really crazy. They need to get some clarification.”

ILB readers may remember this entry from Sept. 30th, quoting a story from the Terre Haute Tribune Star headed "Wabash Valley woman didn’t realize second cold medicine purchase violated drug laws." It began:
CLINTON — When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

Now, Harpold is trying to clear her name of criminal charges, and she is speaking out in hopes that a law will change so others won’t endure the same embarrassment she still is facing.

“This is a very traumatic experience,” Harpold said.

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to Indiana Law

Ind. Courts - More on: "Ind. loophole lets some life sentences end early"

Supplementing its story from yesterday, the NWI Times today has a database of offenders sentenced to life in prison who have been released since 2000. Access it here.

Posted by Marcia Oddi on Sunday, October 11, 2009
Posted to Indiana Courts

Saturday, October 10, 2009

Courts - More on: In Kansas, the Mortgage Machine Backfires; MERS issue raised in Indiana

Supplementing this ILB entry from Sept. 27th is this story that appeared yesterday in the Boston Globe, reported by Jenifer B. McKim and headed "Foreclosure sales in limbo over title issue." Some quotes from the lengthy story:

A court decision expected as soon as today could negate the validity of sales of thousands of foreclosed homes in Massachusetts, causing havoc for buyers and sellers and further stalling the housing market’s recovery in hard-hit areas.

At issue is proof of ownership at the time of a foreclosure sale. During the housing boom, millions of mortgages were bundled into bonds and sold to investors, a process that resulted in lengthy and twisted paper trails that can obscure ownership. Many lenders believed they could complete foreclosure transactions and later produce formal proof they held the mortgage.

That changed in March when Justice Keith C. Long of Massachusetts Land Court found that two foreclosures in Springfield were invalid because ownership of the mortgages was not clear at the time of the foreclosures.

Long’s ruling, which came as a shock to many who deal with distressed properties, called into question the ownership of hundreds if not thousands of foreclosed homes in Massachusetts, prompting some lenders to delay sales out of fear they could later be voided, title companies to balk at insuring them, and nonprofits to steer away from certain foreclosed homes altogether.

“There are thousands and thousands of titles that have gone through foreclosures with these late filed’’ ownership records, said Lawrence Scofield, an attorney with Ablitt Law Offices in Woburn, who represented plaintiffs in three consolidated Springfield cases ruled on by Long. “Judge Long is saying you don’t really own it. That is the real, overwhelming, economic effect.’’

Two of the plaintiffs asked Long to reconsider the ruling, and a decision is imminent. * * *

While title issues can affect any home sale, Long’s ruling addressed procedures required under foreclosure law and therefore only affects properties foreclosed on by a lender. His decision builds on a growing national movement among housing advocates, courts, and some lawmakers to push lenders dealing with foreclosed properties to produce accurate documentation before deals are consummated.

Kathleen Engel, professor of law at Suffolk University, said the federal government should step in to help states deal with “toxic titles’’ that are clogging up the system from California to Florida. She said until recently few people were scrutinizing paperwork of foreclosing lenders, whose actions are causing problems for borrowers, investors, and municipalities. No matter how Long rules, she said, the problem isn’t going away.

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to Courts in general

Environment - "A new technique that tapped previously inaccessible supplies of natural gas in the United States is spreading to the rest of the world, raising hopes of a huge expansion in global reserves of the cleanest fossil fuel"

That is the lede to this story by Clifford Krauss in today's NY Times. More from the story:

Italian and Norwegian oil engineers and geologists have arrived in Texas, Oklahoma and Pennsylvania to learn how to extract gas from layers of a black rock called shale. Companies are leasing huge tracts of land across Europe for exploration. And oil executives are gathering rocks and scrutinizing Asian and North African geological maps in search of other fields.

The global drilling rush is still in its early stages. But energy analysts are already predicting that shale could reduce Europe’s dependence on Russian natural gas. They said they believed that gas reserves in many countries could increase over the next two decades, comparable with the 40 percent increase in the United States in recent years.

“It’s a breakout play that is going to identify gigantic resources around the world,” said Amy Myers Jaffe, an energy expert at Rice University. “That will change the geopolitics of natural gas.”

More extensive use of natural gas could aid in reducing global warming, because gas produces fewer emissions of greenhouse gases than either oil or coal. China and India, which have growing economies that rely heavily on coal for electricity, appear to have large potential for production of shale gas. Larger gas reserves would encourage developing countries to convert more of their transportation fleets to use natural gas rather than gasoline.

Shale is a sedimentary rock rich in organic material that is found in many parts of the world. It was of little use as a source of gas until about a decade ago, when American companies developed new techniques to fracture the rock and drill horizontally. * * *

One recent study by IHS Cambridge Energy Research Associates, a consulting group, calculated that the recoverable shale gas outside of North America could turn out to be equivalent to 211 years’ worth of natural gas consumption in the United States at the present level of demand, and maybe as much as 690 years. The low figure would represent a 50 percent increase in the world’s known gas reserves, and the high figure, a 160 percent increase.

The projections suggest that the new method of producing gas “is the biggest energy innovation of the decade,” said Daniel Yergin, chairman of the Cambridge consulting group. “And the amazing thing is there was no grand opening ceremony for it. It just snuck up.”

Over the last five years, production of gas from shale has spread across wide swaths of Texas, Louisiana and Pennsylvania. All the new production has produced a glut of gas in the United States, helping to drive down gas prices and utility costs.

This new method of producing gas is not without environmental and social consequences, however. This article by NYT columnist Veryln Klinkenborg from July 27, 2009 is reminiscent of the corn ethanol, and now wind turbine, rushes in Indiana. Some quotes:
There is plenty of change in the Catskills, much of it driven by energy development. The great scar of the Millennium Pipeline, which will someday bring natural gas from Ontario to New York City, comes straight over the mountains and down to the river. Yet that is nothing when measured against the huge changes that will come if New York State gives the go-ahead to gas drilling in the Marcellus Shale.

The Marcellus Shale is an enormous, subterranean layer of rock that runs from the Lower Adirondacks down through the Catskills and to western Pennsylvania and eastern Ohio. Geologists believe there are colossal amounts of clean-burning natural gas trapped there. And for many months now, representatives from energy companies, whose job is to persuade property owners to sign development leases, have been fanning out across New York’s Southern Tier with contracts in hand. While prices have fluctuated, some landowners have gotten as much as $3,500 per acre, plus 20 percent royalty, far more than people who signed early leases received.

The question of whether you have signed or not has created a new social fault line in local society. Some owners argue that they have not only a right, but an obligation to exploit the resources on their property. Others insist their duty is to protect the land. Before the drilling starts, New York’s Department of Environmental Conservation must decide where wells can safely be drilled and devise rules to prevent pollution. The rules, which the department expects to release in the fall, should be tightly drawn. At a bare minimum, they should protect municipal water supplies. Drilling should be forbidden altogether in Ulster, Greene and Delaware Counties, where there is lots of shale and New York City’s water originates.

It isn’t easy getting the methane out of the rock. First, the drilling rigs bear down and sideways, and then millions of gallons of water — drawn from local lakes and rivers — are shot in at high pressure to fracture the shale and release the gas. In time, the water will return to the surface, contaminated and in need of treatment.

Even knowing all of that, it is still hard to imagine how much this effort will transform the landscape. I walked with a friend along a gravel road near Peas Eddy. In a relatively flat spot in the woods, we came upon a surveyor’s stake. If the state gives the go-ahead, that subtle opening will be replaced by an industrial-sized clearing to make space for a drilling rig and all the machinery needed to fracture the shale and extract and pump the gas. All of that equipment will travel on the gravel road we had just walked, which runs along a stream bank.

My friend has refused to sign a mineral lease for his land. Yet his refusal makes no difference. Once a certain percentage of landowners in a development block have agreed to sign — and the state gives the green light — the drillers can go ahead. The rigs will run up and down the roads, and the woods will take on the look of a heavy construction zone, all in the immediate vicinity of people who have tried to hold out against the drilling.

I’ve seen all of this before in the explosion of coal bed methane development in Wyoming over the past decade. The same arguments have been advanced — energy independence — and the same alternative, a sober national approach to energy conservation, has been ignored.

It takes a reasonably practiced eye to see the damage coal bed methane development has done. But when the infrastructure for pumping natural gas out of the Catskills has finally been put in place, there will be no mistaking its impact — no missing the gaping holes in the forest canopy, the artificial ponds full of “fracking” fluid, the industrial damage done.

The estimates of the energy trapped below ground in the Marcellus Shale are indeed staggering. But to get that energy, we will have to give up a good share of the biological integrity of the land that lies above it. To stand in a glade in the Catskills is to realize what a deeply troubling trade-off that is.

Skip ahead now a couple months to Oct. 1st -- the NY rules now have been drafted, according to this Reuters report:
New York State's proposed new environmental rules allowing drilling for natural gas in the multi-state Marcellus Shale formation face opposition from environmental groups and, potentially, from New York City.

The proposed state rules would allow drilling around water wells but require extra reviews, depending on whether the work was within 2,000 feet or 1,000 feet of the well.

Some green groups want buffer zones created around upstate reservoirs to protect the city's water from pollution. Mayor Michael Bloomberg said he had not yet read the proposed rules, while executives for energy companies said the regulations would raise natural gas drilling costs but help calm public fears of water contamination. * * *

Shale gas, or gas trapped in sedimentary beds, is seen as having the potential to provide the United States with affordable fuel that will help drive economic growth, reduce dependence on foreign oil and limit emissions for decades.

But concerns are growing that the drilling techniques used to fracture the gas-bearing rock could contaminate drinking water. Quinn called for amending the federal Safe Drinking Water Act to tighten rules for hydraulic fracturing.

In this process, also known as fracking, a mixture of water, chemicals and other materials like sand are pumped into the shale formation to split the rock and free the trapped gas.

While the chemicals used may be only a small part of the mix of fracking fluid, some are considered toxic or are known causes of cancer, raising concerns about the potential for ground water contamination.

From a Sept. 30th article in the NY Times:
Geologists have long known about the Marcellus Shale and its abundant gas reserves, but until recently there was no way to extract the fuel in an economical way.

That changed several years ago when operators figured out a way to merge two technologies: horizontal drilling and hydraulic fracturing. Because wells have been drilled horizontally, sometimes for miles, operators can now gain access to pockets of gas that would have been unreachable. High-pressure water mixed with chemicals is then injected into the wells to break the shale and allow natural gas to flow out.

Some geologists estimate that the Marcellus basin holds an estimated 500 trillion cubic feet of gas, of which 50 trillion cubic feet could be recovered. That would be enough to meet the nation’s needs for about two years.

There are already about 13,000 active oil and gas wells in New York, about half of them already using hydraulic fracturing. In drilling through shale, a great deal more water is needed to crack the rocks. While a conventional well requires using about 80,000 to 100,000 gallons of water, shale rocks require anywhere between three million to five million gallons per well.

"Top Rendell aide quits to join gas driller" is the heading to this story dated Oct. 7, by Mario F. Cattabiani of the Philadelphia Inquirer. Some quotes:
HARRISBURG - At a time when tapping and taxing Pennsylvania's natural-gas reserves is increasingly controversial, a top Rendell administration aide who dealt with those issues is resigning to take a job with a leading gas driller.

K. Scott Roy is stepping down as the $146,000-a-year executive deputy chief of staff to Rendell to become vice president for government relations and regulatory affairs for Range Resources Corp., a Texas-based company with a major drilling stake in Pennsylvania.

Through a Rendell spokesman, Roy declined comment for this article, except to say that he "considers it an opportunity to work for a great company that has a vision to achieve a balance between the Marcellus Shale opportunity and protecting the environment."

Roy's job switch has raised eyebrows in the environmental community, especially given Rendell's about-face five weeks ago on whether to begin taxing natural-gas drilling in the Marcellus shale formation.

"At the least, it doesn't look good," said Jan Jarrett, president and chief executive of PennFuture, a Harrisburg-based environmental group.

Running hundreds of feet below ground from New York to Virginia, the Marcellus Shale is a vein of rock containing vast reserves of natural gas estimated to be worth billions of dollars. Recent technology has made its exploration and extraction possible.

When he delivered his budget address Feb. 4, Rendell touted a so-called "extraction" tax on gas drilled in the Marcellus Shale reserve. He called it a modern-day "gold rush" and said the governor of West Virginia had assured him that such a tax "did not inhibit" that state's natural-gas boom.

That changed Aug. 31. In a move that took even some of his top aides by surprise, Rendell said at a news briefing that he was giving up his push for the tax this year.

He said he changed his mind after meeting with industry executives who convinced him that imposing the tax now would stunt the growth of drilling in the state.

"We felt we should let the industry get off to a good start, and that surpasses our need for money," Rendell said Aug. 31. He said he favored starting such a tax next year.

Tom Gjelten of NPR has this report Sept. 23rd, titled "Water Contamination Concerns Linger For Shale Gas". It includes a number of related links.

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to Environment

Ind. Courts - "Ind. loophole lets some life sentences end early"

An unattributed story posted on the NWI Times website late this morning, headed "Ind. loophole lets some life sentences end early," reports:

Hundreds of Indiana offenders sent to prison for life are receiving reduced sentences, a newspaper investigation has found.

The Times of Munster examined an Indiana Supreme Court database of offenders released from 1962 to 1973 and found that only five of the 273 people released during that time served 40 years or more. Most served an average of 19.4 years.

Those released since 2000 served an average of 21.3 years in prison, the Times analysis showed.

Prosecutors blame the situation on a loophole in Indiana, which could result in offenders sentenced to life without parole being set free sooner than those convicted of lesser crimes.

Before 1977, offenders sentenced to life in prison could gain release either by seeking clemency or asking prosecutors to change their sentences.

The Indiana Criminal Code has since changed, and offenders sentenced to life without parole can now petition the governor for clemency after 10 years of incarceration. By comparison, those serving more than 10 years for lesser crimes can seek clemency only after serving one-third of their sentences, or 20 years, whichever comes first. * * *

More than half of the life offenders released since 2000 returned to prison for new crimes or parole violations, the Times found.

Read in conjunction with this ILB entry from Sept. 7th headed "Lights Out at the Penitentiary: Strapped States are Shutting Prisons."

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to Indiana Courts

Law - More on: Dawn Johnsen's DOJ nomination impacts Monroe County school board

Updating this ILB entry from Sept. 6th, along with these earlier ILB entries relating to DOJ nominee Dawn Johnsen, Andy Graham of the Bloomington Herald-Times reports again today on the impact of the stalled confirmation process on the Monroe County Community School Corp. board (MCCSC), upon which Johnsen's husband, John Hamilton, began serving this year.

Some quotes from the story ($$), which is headed "Hamilton announces plans to resign from seat on MCCSC board":

John Hamilton still awaits news of his wife’s immediate career future, but he settled a bit of his own at Tuesday night’s Monroe County Community School Corp. board meeting by announcing plans to resign his board seat.

Hamilton made it clear he regretted stepping down, and left the exact date of his departure open, pending further discussion with the board. But he said his resignation was compelled by circumstances that have left his family’s residency and employment situations in limbo since January.

That was the month Hamilton began his MCCSC board tenure, having run unopposed for the District 5 seat after Teresa Grossi opted not to run for re-election. What wasn’t necessarily as predictable was the Jan. 5 announcement that Dawn Johnsen, Hamilton’s spouse and a professor at Indiana University’s Maurer School of Law, was President-elect Barack Obama’s nominee to head the new administration’s Office of Legal Counsel.

And few could have foreseen that Johnsen’s confirmation process would remain unsettled this long. Her nomination passed through committee in March but still awaits a vote on the floor of the United States Senate.

“One thing I didn’t plan on was our family circumstances altering, with the change in my wife’s employment prospects,” said Hamilton, who has shuttled between Washington, D.C., and Bloomington for recent meetings. “That remains unresolved. I wish I was bringing news about that to the meeting tonight. Instead, the news is that I’ve told my fellow board members I intend to resign my seat because of those circumstances.

“I regret that. And I leave the precise timing of it to my colleagues.”

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to General Law Related

Ind. Decisions - Supreme Court accepts certified insurance question from the SD Ind.

By this Order filed Oct. 5th, 2009, the Indiana Supreme Court has accepted a certified question from the United States District Court for the Southern District of Indiana, New Albany Division. From the Order:

The question arises in Auto-Owners Insurance Company a/s/o David M. Brown v. Carolyn Young d/b/a Peddlers Corner Café, Case No. 4:08-cv-160-SEB-WGH (S.D. Ind.). The question, as framed by the federal district court, is: “Whether, absent an express agreement to the contrary, a tenant should be deemed a co-insured under a fire insurance policy held by that tenant’s landlord.”
Here is federal district judge Sarah Evans Barker's 7-page Order dated Sept. 15th, 2009. A quote:
Moreover, although the issue arguably does not rise to the level of being a “matter of vital public concern,” it relates to insurance law which is uniquely a state law matter, and the parties’ monetary stakes are substantial. Further, the fact that this issue has been presented in numerous other state and federal courts indicates that it is likely to recur. Finally, it is clear that Indiana courts have not heretofore had an opportunity to opine on this issue. The parties have not cited, nor has the Court discovered, any appellate decision in this state discussing or resolving the issue. Certification to the state supreme court is therefore appropriate, assuming the issue presented is in fact one of first impression. State Farm Mut. Auto. Ins. Co., 275 F.3d at 672 (citation omitted).

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "Elizabeth Warren on Vanishing TARP Money "

Elizabeth Warren, a Harvard Law professor and Chairman of the Congressional Oversight Panel on TARP, and well-known to many of us as a consumer law expert, is featured in this Washington Post story, complete with video clips:

Elizabeth Warren is far from a household name, but that could change quickly, given her debut on the big screen this week in Michael Moore's scathing assessment of the government's handling of the banking crisis.

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to General Law Related

Ind. Decisions - "Appeals court overturns sentencing of gay defendant"

That is the heading of this story today in the Muncie Star-Press, reported by Rick Yencer, re the Court of Appeals' opinion Oct. 5 in the case of Jeffrey Phelps v. State of Indiana - see ILB summary here, 3rd case. Some quotes:

MUNCIE -- The Indiana Court of Appeals found a local court abused its discretion when it sentenced a gay defendant convicted of sex crimes and found he was a violent sex predator without having sufficient evidence.

In October 2008, Delaware Circuit Court 2 Judge Richard Dailey sentenced Jeffrey S. Phelps, 46, to eight years in prison for two counts of vicarious sexual gratification and a count of dissemination of matter harmful to a minor.

That sentence was part of a plea deal with the state that dropped 10 other charges and proposed an executed sentence of no more than eight years. After Dailey handed down the sentence, he then determined Phelps was a violent sex predator, which mandated his listing on the state's sex offender registry.

The crime involved Phelps having teenage boys at his house and watching pornographic videos while the boys gratified themselves. Police also said Phelps supplied liquor and marijuana to the teenagers during gatherings between June and November 2006.

Defense attorney Jill Gonzalez, representing Phelps, filed an appeal, saying Dailey abused his discretion when he sentenced Phelps, and that there was no evidence supporting the sexual predator decision. She also argued the court's probation officer omitted in a pre-sentence report that Phelps had no prior criminal record.

The appeals court agreed this week, throwing out the lower court's sentence and imposing an aggregate sentence of four years. Justices also agreed there was no evidence that supported a violent sex predator status.

"There is no evidence in the record that (Phelps) forced any of the boys to do anything against their will, nor is there any evidence that Phelps' crime stemmed from a pattern of recurring conduct," the justices wrote. "This offenses stem from a series of bad decisions occurring on one particular evening."

The appeals court noted that Phelps had no prior criminal convictions, and mental health experts had reported the defendant was not a violent sex predator.

Posted by Marcia Oddi on Saturday, October 10, 2009
Posted to Ind. App.Ct. Decisions

Friday, October 09, 2009

Courts - 2005 Bankruptcy law requirement to go before SCOTUS

It is the challenge to the "we are a debt relief agency" requirement of the 2005 revisions, familiar to bankruptcy practitioners, that has reached the SCOTUS.

Thomas B. Scheffey writes in The Connecticut Law Tribune. Some quotes from the long report:

Robert Milavetz, the founder of an 11-lawyer bankruptcy firm in the suburbs of Minneapolis, wasn't pleased when Congress started telling bankruptcy lawyers what they could and could not say to clients.

Specifically, he -- along with attorneys from Connecticut and elsewhere -- didn't like a 2005 law that seemed to forbid lawyers from advising bankruptcy clients to incur any more debt. Another part of the new law apparently required bankruptcy lawyers to include in their advertisements that "we are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code."

Milavetz made a federal case of it, seeking declaratory relief in a Minnesota federal court.

The U.S. government argued that Congress' orders were not a violation of the First Amendment right to free speech, or commercial free speech law.

The 8th U.S. Circuit Court of Appeals rendered a split decision, holding that the directive to not advise taking on debt was unconstitutional, but that the advertising requirement had a rational basis in a legitimate governmental purpose.

Both the government and Milavetz wanted to go to the U.S. Supreme Court and appeal the parts they lost. To handle the petition for certiorari, Milavetz sought out bankruptcy scholar D. Eric Brunstad, a partner in the Hartford, Conn., office of Dechert and a veteran of more than 40 U.S. Supreme Court cases, including 10 oral arguments.

Both the Justice Department and Brunstad beat steep odds and won their petitions for certiorari, and the combined cases have a total of six issues. Arguments are set for December.

Posted by Marcia Oddi on Friday, October 09, 2009
Posted to Courts in general

Courts - More on: The Jury is In: "Brooke Astor’s Son Guilty in Scheme to Defraud Her "

More on Brooke Astor:

"Tough and Relentless, Prosecutor Pulled No Punches During Astor Trial," Daniel Wise in the New York Law Journal - here

"Despite Verdict, Fate of Astor Fortune Is Uncertain ," A.G. Sulzberger in the NY Times - some quotes from the story:

Yet the conviction of Mrs. Astor’s son, Anthony D. Marshall, on charges that he stole from her has done little to resolve the uncertain fate of the $180 million estate at the heart of the discord. So even as Mr. Marshall awaits sentencing and a possible appeal, another legal showdown looms.

As the public watched the criminal trial unfold over the last five months, a small army of lawyers, including those for a dozen charities, read the tea leaves for some sense of how they could alter the jockeying over the Astor fortune. The Metropolitan Museum of Art and the New York Public Library, the two main beneficiaries of Mrs. Astor’s largess, even sent observers to the trial.

The expected contest — which could be sidestepped by a settlement — is in Westchester County Surrogate’s Court, and centers on whether Mrs. Astor’s assets should be distributed according to her most recent will, from 2002, or an earlier version, which directed more money to charity.

At the core of this issue is whether Mrs. Astor was mentally competent when she signed the 2002 will, which was amended in late 2003 and again in early 2004. Those revisions gave her son more control over her estate and, in the process, reduced the amount of money she left to the New York universities, libraries, parks and museums she spent so much of her life supporting.

The sweeping verdict against Mr. Marshall may provide a significant boost to their push to have the recent will thrown out as invalid, lawyers say. “It’s very unusual and directly relevant to the issues before the surrogate because both cases concern her mental capacity,” said Paul C. Saunders, a lawyer for Annette de la Renta, who was Mrs. Astor’s court-appointed guardian and is a party in the Surrogate’s Court case. “Clearly the jury believes she didn’t have the capacity to understand what she was doing.”

The maneuvering began almost immediately after Mrs. Astor’s death on Aug. 13, 2007, with a dispute over who should be named administrators of the estate (the court eventually named JPMorgan Chase & Company and a retired judge). The case began to move quickly toward a will battle, though no formal objection has yet been filed.

If the most recent will is upheld, many charities will lose millions of dollars, with the Met and the library — both of which declined to comment — losing out on an estimated $10 million each. The Surrogate’s Court case was postponed pending the resolution of the criminal case, and it remained unclear whether it would resume if Mr. Marshall appealed his conviction. The court is scheduled to discuss the civil case again on Nov. 4.

Because there is little precedent for criminal charges to be brought in a will dispute, legal experts said it was difficult to predict how the testimony gathered during 19 weeks in court or the criminal convictions of Mr. Marshall and Francis X. Morrissey Jr., a lawyer who did estate work for Mrs. Astor, would affect the outcome. However, the standard of proof in criminal court (beyond a reasonable doubt) is higher than in civil court (a preponderance of the evidence), so a criminal conviction would appear to be unfavorable for Mr. Marshall.

The jury found that Mr. Marshall had conspired to defraud his mother by tricking her into altering her will twice and that her signature on one of those codicils was forged by Mr. Morrissey. While the criminal case did not include charges regarding the 2002 will or the first amendment, guilty verdicts on other charges not directly related to the will changes suggest that the jury believed that questions about Mrs. Astor’s competency predated them.

Posted by Marcia Oddi on Friday, October 09, 2009
Posted to Indiana Courts

Ind. Courts - More on: Protective orders by themselves are no panacea

This ILB entry from June 28th quoted at length from an Indianapolis Star story by Francesca Jarosz headed: "3 domestic violence deaths prompt questions of what can be done." Some quotes from the original story:

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

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

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

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

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

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

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

Today Bruce C. Smith of the Star has this story - some quotes:
DANVILLE -- A Hendricks County judge today sentenced Joseph Warnock to a 55-year prison sentence for the murder of his estranged wife.

Judge Robert Freese accepted a plea agreement that Warnock's attorneys reached with prosecutors in September. * * *

Warnock will not be eligible for parole or a pardon, but under "good time'' rules could be released from prison after serving about half of his sentence.

Six members of Angela Warnock's family testified for nearly an hour, calling Joseph Warnock a cold-blooded killer who ruined their lives. * * *

Four days before her death, Angela Warnock received a protective court order to try to keep her husband away from their daughters and the family home. In a court hearing, she described him as addicted to drugs and alcohol.

He swore in the same court hearing that he would never hurt her.

Stephen J. Johnson, executive director of the Indiana Prosecuting Attorneys Council, said 55 years is probably close to the standard prison term in similar cases, given Warnock's expressions of remorse and lack of criminal history. Indiana law identifies specific circumstances that would allow for a longer sentence after a murder conviction, but none of them was established in this case.

Bills have been introduced in the Indiana General Assembly to add domestic violence as an aggravating factor in a murder sentence, but none has been passed.

In Hendricks County, three recent domestic violence deaths have raised concerns. The deaths led county leaders to look into creating a task force to review previous deaths and report to state agencies that track statewide trends in domestic violence. Also, government and community leaders decided to revive the long-dormant Hendricks County Coalition Against Domestic Violence.

Posted by Marcia Oddi on Friday, October 09, 2009
Posted to Indiana Courts

About this Blog - Rare ATT DSL outage much of today

The ILB, and it seems many other ATT customers, suffered from a rare ATT DSL outage today. Obviously, service has now been restored.

Posted by Marcia Oddi on Friday, October 09, 2009
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Daisy Farm Limited Partnership v. Michael and Jill Morrolf, a 16-page opinion, Judge Friedlander writes:

This is the second time this dispute between Daisy Farm Limited Partnership and Michael and Jill Morrolf concerning the ownership of land has come before us. In this iteration, Daisy Farm appeals the trial court's decision upon remand that Daisy Farm did not acquire title by adverse possession of a triangular-shaped parcel of land deeded to the Morrolfs. Daisy Farm presents the following restated issue for review: Did the trial court err in concluding that Daisy Farm failed to prove all of the elements necessary to take title to the disputed property by adverse possession? We affirm. * * *

Daisy Farm contends that it proved all of the elements necessary to acquire title to the disputed section of land by adverse possession. The traditional elements of adverse possession descending from the common law required the claimant to prove the possession was (1) actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for the statutory period. In Fraley, our Supreme Court condensed and synthesized those elements to now consist of control, intent, notice, and duration. Those elements were defined as follows:

(1) Control--The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent--The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);
(3) Notice--The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and,
(4) Duration--the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).
Fraley v. Minger, 829 N.E.2d at 486. * * *

In summary, there was conflicting evidence on each of the points to which Daisy Farm cites in support of its argument that it exercised exclusive control over the triangular area beyond that permitted to the general public via the public easement. * * * Even assuming for the sake of argument, however, that Daisy Farm had established the foregoing elements by clear and convincing evidence, we conclude that the claim must fail on the remaining element, i.e., the failure to substantially comply with the payment of taxes. * * *

In summary, Daisy Farm failed to establish that the trial court committed clear error in concluding that Daisy Farm failed to establish all elements of its claim of adverse possession.

In U.S. Bank, N.A. v. Integrity Land Title Corp. , an 11-page, 2-1 opinion, Judge Crone's majority opinion in a petition for rehearing concludes:
Consequently, we exercise our inherent authority to reconsider our original opinion and hereby vacate our reversal of summary judgment on U.S. Bank’s contract claim. In other words, we affirm the trial court in all respects.

ROBB, J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 8] Our rules do not permit Integrity to raise the contract argument in what it characterizes as its “response” to the tort argument U.S. Bank raised in its petition for rehearing. Moreover, allowing Integrity to do so in a brief in response to a petition for rehearing is unfair because it effectively deprives U.S. Bank of an opportunity to respond to the contract argument. I must therefore respectfully dissent from the grant of rehearing.

NFP civil opinions today (2):

In the Matter of the Supervised Estate of Ronald M. Unger (NFP) - "Here, the co-executors did not testify regarding the work or the time they spent on Estate matters. Instead, Shaffer testified that he did not know precisely how much time the co-executors had worked on Estate matters, but did state that they were always available for such work. He later estimated that the co-executors had spent approximately 300 hours on Estate matters. He explained that he arrived at the requested $70,000 by roughly halving the requested amount of attorney fees. He also testified that $80 per hour would be a reasonable fee for the co-executors to charge. This hourly rate multiplied by Shaffer’s estimate of 300 hours of work performed by the co-executors, comes to only $24,000. Yet the requested fee was almost three times this amount. Under these facts and circumstances, we conclude that Brenda has established at least prima facie error with regard to the trial court’s award of co-executors’ fees.

"We therefore reverse the trial court’s order awarding fees and remand for proceedings to determine reasonable fees based upon the amount and description of services actually provided and the reasonable value of such services."

Mark Bunker v. Nicole Cherie Paradis (NFP)

NFP criminal opinions today (9):

Donald Lee Vacendak v. State of Indiana (NFP)

David Jackson v. State of Indiana (NFP)

Demarcus Priester v. State of Indiana (NFP)

Lenn Ivy v. State of Indiana (NFP)

Octavius Alexander v. State of Indiana (NFP)

James Cushinberry v. State of Indiana (NFP)

Justin May v. State of Indiana (NFP)

Ricky Wayne Anderson v. State of Indiana (NFP)

B.P. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 09, 2009
Posted to Ind. App.Ct. Decisions

Thursday, October 08, 2009

Ind. Decisions - More on "Inmates' sexual romps not a crime"

Updating this ILB entry from earlier today on yesterday's Court of Appeals 2-1 decision in the case of State of Indiana v. Misty Moore - see ILB summary here, 3rd case, the Greene County Daily World now has a lengthy story on the ruling and what's next, written by Nick Schneider, assistant editor. Some quotes:

The Indiana Court of Appeals ruled Wednesday in a split decision that no crime was committed when six inmates at the Greene County Jail sneaked into each other's cells to have sex in a case that was first exposed to authorities in November 2008.

However, Greene County Prosecutor Jarrod Holtsclaw announced on Thursday afternoon that the Indiana Attorney General's office will be asking for a transfer of the case to the Indiana Supreme Court.

"I have learned from the Attorney General's office, which handled the appeal, that they will be seeking transfer to the Indiana Supreme Court. The reason behind that is because this is a case of first impression, which means there are no Indiana cases deciding this particular point of the state statute," Holtsclaw told the Greene County Daily World. "The Attorney General's Office deems it is important to have it reviewed by the courts and in light of the fact the Court of Appeals decision was split, they believe it is important to pursue."

The prosecutor said by asking for a transfer it does not guarantee that the Supreme Court will agree to hear the case.

"If the Indiana Supreme Court chooses not to grant the transfer, that is the end of the road or the discussion on it (the case) and the law will be that you can leave your jail cell inside the jail building, you can not be charged with a crime," Holtsclaw explained. "If the Indiana Supreme Court grants transfer we're sort of back to square one and arguments will be made on both sides and it will be up to the Indiana Supreme Court to decide whether this is a crime or whether it is not." * * *

Holtsclaw added, "The whole case boils down to two different views of what if meant by lawful detention. My position and the state's position is lawful detention can be placed anywhere within the four walls of the jail. Basically, where ever the sheriff puts you in the jail and you are confined there at his order ... the majority opinion is what the defendants had argued at trial was that we should take a broader view and you can not escape unless you absolutely walk away from the jail. If you leave your jail cell to go wherever you want, regardless of what the sheriff said, that's not a crime."

The prosecutor continued, "The real problem here and why this issue has gone as far as it has is there is no Indiana case that has ever come up on that point. When I had to make the charging decision and when Judge Martin had to make her decision, we had no Indiana cases to look at for guidance. So what we have created now, (is) jurisprudence at work. It may make its way to the Supreme Court and it may not." * * *

The late-night encounter plot came to light Oct. 8, 2008 after several jail employees conducted a search of a male and female cellblock and uncovered letters that detailed the clandestine meetings that had been going on between the inmates out of the view of security cameras.

Letters recovered in a search of the female lockup cellblock indicated that the inmates had made their way through the ceiling area, making contact with each other -- including sexual activity, according to a probable cause affidavit filed by Greene County Sheriff's Department Det. George Dallaire.

The two cellblocks are located side by side and separated by a concrete wall, according to Greene County Sheriff Terry Pierce. He said it's the only area in the jail that has "dorm" style accommodates. There are six beds on the female side and 12 in the male cellblock.

The female inmates allegedly used the shower drain cover as a tool and then "head-butted" the ceiling tile to gain entry, according to court records. They are alleged to have placed laundry hamper on top of Halderman's bunk bed -- out of the view of a security camera -- and stood on it to reach the loosen ceiling tile and climb over the male cellblock.

Since this incident was discovered, the ceiling tiles have been reinforced and other security measures have been put in place to prevent a repeat of activity, Pierce pointed out.

Judge Martin, who had been on the bench just eight days before she rendered her trial court decision in the case, told the Greene County Daily World on Thursday morning that she is prevented by judicial ethics standards from publicly commenting on the Appeals Court decision.

This was her first trial court ruling to be reviewed by the state Appeals Court.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Ind. App.Ct. Decisions

Courts - The Jury is In: "Brooke Astor’s Son Guilty in Scheme to Defraud Her "

Updating this Oct. 6th ILB entry, John Eligon reports in the NY Times this afternoon:

The son of Brooke Astor, the legendary New York society matriarch, was convicted on Thursday of stealing from her as she suffered from Alzheimer’s disease in the twilight of her life.

Barring an appeal, the jury’s verdict means that Mrs. Astor’s son, Anthony D. Marshall, an 85-year-old war veteran who fought at Iwo Jima, can be sentenced to anywhere from 1 to 25 years behind bars.

Mr. Marshall was found guilty of 14 of the 16 counts against him, including one of two first-degree grand larceny charges, the most serious he faced. Jurors convicted him of giving himself an unauthorized raise of about $1 million for managing his mother’s finances. Prosecutors contended that Mrs. Astor’s Alzheimer’s had advanced so far that there was no way she could have consented to this raise and other financial decisions that benefited Mr. Marshall.

A second defendant in the case, Francis X. Morrissey Jr., a lawyer who did estate planning for Mrs. Astor, was convicted of forgery charges. * * *

The verdict drew the curtain on a trial that lasted longer than had been expected. The jury of eight women and four men sat through more than 19 weeks of testimony and arguments in State Supreme Court in Manhattan, hearing detailed accounts of Mrs. Astor’s luxurious life of summers on an estate in Maine and dinners with diplomats. They heard testimony from Henry Kissinger, Barbara Walters and Annette de la Renta, among others.

The prosecution had portrayed Mr. Marshall as greedy, saying that he was driven to squeeze his mother for money at the urging of his wife, Charlene. On Thursday, Charlene Marshall sat stoned faced as the verdict was read.

Mr. Marshall’s son Philip had initially raised questions about his mother’s well-being. He was not in court on Thursday, but reacted with disbelief at the sweeping verdict against his father. “Oh my God,” he said when reached on his cellphone. "Wow. Wow." He said needed time to compose a statement: “There’s just too much going through my head right now.” * * *

In his closing statement, Joel J. Seidemann, an assistant district attorney, read from the Book of Psalms: “Do not cast me away when I am old. Do not forsake me when my strength is gone.”

He added, “It has been said that a society is judged based upon how it treats its elderly,” and asked jurors to hold Mr. Marshall “accountable for stealing from and defrauding a great philanthropist, a great New Yorker and human being in the sunset of her life.”

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Indiana Courts

Law - "ACLU Says Extracting DNA From Suspects Unconstitutional"

David Kravets reports in Wired's Threat Level:

California’s law requiring the authorities to take a DNA sample from every person arrested on felony accusations was challenged in federal court Wednesday as an unconstitutional privacy breach.

A lawsuit filed by the American Civil Liberties Union on behalf of two Californians who were arrested and released, seeks to overturn a voter-approved law that became effective this year. Proposition 69 requires detainees to provide a saliva or sometimes a blood sample upon felony arrest. The sample is stored in state and FBI databases, even if the arrested person is never charged or convicted of a crime.

The challenge, if successful, threatens to derail similar laws in other states. According to DNAResource.com, 10 other states have such statutes. They are Alabama, Alaska, Colorado, Florida, Kansas, Louisiana, North Dakota, South Carolina, South Dakota and Vermont. * * *

Wednesday’s lawsuit does not challenge DNA sampling for convicted felons or for those required under a court order. Rather, the case challenges “the mass, programmatic DNA testing of hundreds of thousands of persons — persons not convicted or who are otherwise not under supervision of the criminal justice system — as to whom the long-recognized constitutional prerequisites to such searches and seizures have been established.”

The ACLU says DNA sampling is different from the compulsory fingerprinting upon arrest that has been standard practice in the U.S. for decades. A fingerprint, for example, reveals nothing more than a person’s identity. But much can be learned from a DNA sample, which codes a person’s family ties, some health risks, and, according to some, can predict a propensity for violence.

What’s more, in California the authorities are allowed to conduct so-called “familial searching.” That is when a genetic sample does not directly match another, so authorities start investigating people with closely matched DNA in hopes of finding leads to the perpetrator. * * *

The courts have already upheld DNA sampling of convicted felons based on the theory that the convicted have fewer privacy rights. Still, the U.S. Supreme Court has held that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. That alcohol evaporates in the blood stream is the exigent circumstance to draw blood from a suspected drunk driver.

“Our position is before you take somebody’s genetic information, you need either a warrant or that person needs to be convicted of a felony with all the procedural protections anybody gets when you are charged and tried with a felony,” the ACLU’s Risher said.

[ILB - but see Sept. 30, 2-1 Indiana COA decision in Garcia-Torres here]

The Wired article also provides this link to an 18-page, January 23, 2009 Congressional Research Service report, "Compulsory DNA Collection: A Fourth Amendment Analysis."

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to General Law Related

Environment - More on "NW Indiana counties stop residents' wind tower ventures"

Updating this ILB entry from August 15th, Vicki Urbanik of the Chesterton Tribune reports:

Porter County now has the framework in place to welcome a major new industry: Alternative energy.

The Porter County Commissioners on Tuesday approved two amendments to the county’s Unified Development Ordinance establishing the county’s first-ever regulations on wind energy systems. One ordinance spells out the rules for small-scale, individual turbines, and the other consists of regulations for large wind farms.

TradeWind Energy, based in Kansas, is currently in the process of getting leases in place from property owners in south Porter County, specifically in Pleasant Township, for a new wind farm, county officials said. The company has provided input on the new ordinance, which the county needed in order to allow the wind farm since no such rules have been in place before.

Porter County Commissioner President Robert Harper emphasized that the new wind farm ordinance was developed after an enormous amount of work by a plan commission study committee, which reviewed other ordinances and visited wind farms, including the one in Benton County. He said the county’s ordinance is no more or less restrictive than what’s in place elsewhere.

Plan Commission assistant director Ray Joseph said the TradeWind company is also satisfied with the county’s new rules, calling it a “pro-wind” ordinance. He said the company is eyeing about 10,000 acres in Porter County for the new wind farm. * * *

Both ordinances spell out various regulations dealing with height, setbacks, noise and other technical concerns.

Among the requirements for individual wind turbines is a rule that a property owner has at least 2.5 acres or else obtains a special exception from the Porter County Board of Zoning Appeals.

North Porter County Commissioner John Evans questioned if that requirement is too restrictive. Noting that turbines can require an significant upfront investment, Evans said individual property owners who want to be energy conscious might not be able to recoup their costs if they must have that large of a lot size.

But Joseph said the ordinance as it is now is only a starting point for Porter County, noting that wind turbines are a relatively new technology that the county has never regulated before.

Harper suggested suspending the rules to finalize the ordinance rather than wait for another meeting, since there are people in Porter County lining up contractors to get their wind systems in place.

The second ordinance dealing with the large-scale wind farms includes a requirement that the turbines must be located at least 1,000 feet away from minor subdivisions and 3,000 feet away from larger subdivisions and places of worship. The setbacks rules, however, can be adjusted by the BZA.

The maximum height of a wind farm turbine can be up to 500 feet. Joseph said that height is needed because the wind in Porter County tends to be of a higher elevation. The ordinance also spells the agencies that must be contacted of the route used to transport the wind turbines during construction and a ban on shadow flicker on houses and on road intersections.

"Counties hide untapped energy" is the headline to a story today by Gitte Laasby in the Gary Post Tribune:
MERRILLVILLE -- Northwest Indiana has great potential to provide renewable energy, especially wind power and biomass, according to a report released Wednesday by the Natural Resources Defense Council.

Lake and Porter counties have a combined 475 square miles of land that's commercially viable to produce wind power.

"When wind power first began to be commercially developed in the 1980s, Indiana was thought to have insufficient wind to be a leader in commercial wind development.

But recent advances in wind power technology have doubled the height of turbines and the efficiency of production, greatly raising Indiana's future wind potential, states the report, "A Clean Energy Economy for Indiana."

Upping Northwest Indiana's wind potential is the fact that wind turbines are now as tall as 100 meters, which makes them more efficient at capturing the wind.

When BP's Fowler Ridge wind farm in Benton County became fully operational this year, Indiana became 14th in wind development in the nation.

Indiana could supply as much as 12.5 percent of its electricity use from wind, the report states.

Each of the southern halves of Lake and Porter counties also have the potential to produce 250,000 to 500,000 tons of crop-based biomass annually, the report states.

Biomass is fuels developed from crops and can be used for co-firing in existing coal-fired power plants.

Martin R. Cohen, author of the study and an independent energy policy analyst, said Indiana has "great potential" to become a nationwide leader in renewable energy because of its farmland, ample water and steady winds.

"Tapping into this vast reservoir of clean energy would create tens of thousands of high-quality jobs and give a big boost to farm income and rural communities across the state," he said.

In 2007, only 0.5 percent of Indiana's electricity was generated using renewable resources.

More about the NRDC report here. The full report is available here.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Linda Spaulding, et al v. Erinn Harris, M.D., and Health & Hospital Corp. of Marion County d/b/a Wishard Memorial Hospital, a 20-page opinion, Judge Vaidik writes:

Decedent Mattie Spaulding sustained a subdural hematoma shortly after receiving anticoagulation treatment from Dr. Erinn R. Harris at Wishard Memorial Hospital. Mattie’s family filed this action alleging that Dr. Harris’s and Wishard’s negligence precipitated Mattie’s brain injury. A jury found in favor of Dr. Harris and Wishard, and the Spauldings appealed. We hold that the trial court erred in excluding expert opinions that were based in part on a professional publication that reflected a legitimate accumulation of the expert’s knowledge and expertise, but we find this error to be harmless. We further hold that redaction of the words “Department of Insurance” from the medical review panel opinion was not improper and the trial court did not abuse its discretion by prohibiting cross-examination that was outside the scope of direct. We affirm. * * *

Here Dr. Southern testified that substandard protime monitoring contributed to Mattie’s brain injury. As an internist experienced in dosing blood thinners and treating hematoma, Dr. Southern had a thorough understanding of the medical subject matter involved in this case. And as a panelist who first entertained the Spauldings’ complaint, Dr. Southern was familiar with the facts and circumstances surrounding Mattie’s death. Dr. Southern was qualified to provide an expert opinion by reason of her education, background, training, and understanding of the facts at issue. The trial court excluded portions of her testimony apparently because they were based in part on a medical article about unsafe INR levels. But Dr. Southern was a qualified expert and was at liberty to consult medical literature from her field to analyze the case and render an opinion. We agree with the defendants that Section 34-18-10-23 does not give review panel members a free pass to testify on any matters they so choose. We also acknowledge that Dr. Southern did not express an opinion on causation in the medical review panel opinion. But when she was deposed, Dr. Southern was not just a medical review panel member permitted to testify within the confines of the panel opinion—she was also qualified as a medical expert under Rule 702. Dr. Southern was therefore competent to provide her opinion on the connection between Dr. Harris’s protime monitoring and Mattie’s hematoma, and she was allowed to rely on professional publications as a “legitimate accumulation” of her knowledge and expertise. We therefore find that the trial court erred by excluding portions of Dr. Southern’s causation testimony merely because they relied in part on a medical article. * * *

That being said, even if an evidentiary decision was an abuse of discretion, we will not reverse if the ruling constituted harmless error.

In Thomas Longhi v. Louis Mazzoni and Lorraine Mazzoni, a 22-page opinion, Judge Brown writes:
Based upon our review of the evidence and in light of our standard to give deference to the trial court's decision to pierce the corporate veil, we cannot say that the trial court's decision to pierce the corporate veil of Schema LLC and hold Longhi liable was clearly erroneous. * * *

Given the evidence and findings above, we conclude that there was sufficient evidence to support the trial court's conclusion that Longhi either “knowingly or intentionally ma[de] a false or misleading written statement” to obtain the Mazzonis' $50,000 payment under subsection (2) of Ind. Code § 35-43-5-3(a) or “misapplie[d] entrusted property” in a manner that he knew “involve[d] substantial risk of loss” under subsection (3) of Ind. Code § 35-43-5-3(a). Therefore the trial court's judgment awarding the Mazzonis treble damages under Ind. Code § 34-24-3-1 was not clearly erroneous. * * *

For the foregoing reasons, we affirm the decision of the trial court to pierce the corporate veil of Schema LLC to hold Longhi liable and award the Mazzonis treble damages.

NFP civil opinions today (1):

Douglass S. Hale, M.D. v. Melissa Phelps (NFP) - "Douglass Hale, M.D., brings this interlocutory appeal challenging the trial court's denial of his motion for summary judgment on Melissa Phelps's complaint for medical malpractice. Hale presents two issues for review, which we consolidate and restate as: Did the trial court properly deny Dr. Hale's motion for summary judgment? We reverse and remand."

NFP criminal opinions today (8):

Stacy L. Adams v. State of Indiana (NFP)

David W. Kubelsky v. State of Indiana (NFP)

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

Christopher Coates v. State of Indiana (NFP)

Lamarque Ross v. State of Indiana (NFP)

Sanders Williams v. State of Indiana (NFP)

D'Antonette Burns v. State of Indiana (NFP)

James R. Vaden, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "The driver's license is now the primary form of identification"

Updating this ILB entry from August 14th, Dave Hawk reports in the Michigan City News-Dispatch:

MICHIGAN CITY - The Indiana Bureau of Motor Vehicles commissioner was in Michigan City on Wednesday to explain new requirements to get a driver's license starting Jan. 1, when people will have to bring several documents to get a new or renewed license.

"This stems from the events of 9/11," said Andy Miller, speaking at the Michigan City Lions Club, but it also is aimed at protecting people's identities.

"The driver's license is now the primary form of identification," he said. It used to be simply proof of being licensed to drive, but today, people use it more when making purchases than showing it to police, he said. * * *

Now, due to federal law, Indiana has introduced "SecureID." * * * Without SecureID, federal officials may restrict your ability to travel, board aircraft or enter federal facilities, [Sgt. Chris Yagelski of the Michigan City Police Department] said. The exact date when the federal government will begin enforcing these restrictions is still not clear.

After the BMV announced the changes, the state began getting many questions.

Gov. Mitch Daniels' office announced Tuesday that after getting customer feedback, the governor decided to make the change optional for current holders of an Indiana driver's license or ID card who are renewing.

However, Miller said, those driver's licenses will be prominently marked that are not good for use as a federal ID and won't serve as the identification needed for air travel or access to federal buildings.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Indiana Government

Law - "Blog Response to Law Firm’s Demand for Photo Takedown: We’ll Mock You"

An interesting report today by Martha Nell of the ABA Journal Blog. It led me to this entry on TechDirt, headed "Ralph Lauren And Its Lawyers Discover The Streisand Effect On Bogus DMCA Takedown."

Intrigued by "the Streisand Effect"? Then look here, at the Wikipedia entry, which begins:

The Streisand effect is an Internet phenomenon where an attempt to censor or remove a piece of information backfires, causing the information to be widely publicized.
I've seen examples of this when people appeal denials of requests to have criminal records expunged.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to General Law Related

Ind. Law - "Jeff Council takes steps to revise sex offender ordinance"

The Louisville Courier Journal has this story today by Chris Quay:

The Jeffersonville City Council took preliminary steps on Wednesday night to revise the city's sex offender ordinance in order to allow those who are not currently required by state law to be on a registry of offenders to be admitted to city property and parks.

The new ordinance passed its first reading unanimously without opposition, and will now have to pass a second before the council votes on whether to approve it.

Under the old ordinance, offenders who were not required to be on a state sex offender registry had to get permission for access to public property owned by the city, including parks.

With revised ordinance, that will no longer be the case.

“The major difference is there is no appeal process” said council member Keith Fetz, who proposed the ordinance in 2006

He also said the ordinance will change the way it defines sex offenders: Only individuals required by Indiana law, or any other state's law, to register will be deemed a sex offender.

Eliminating the exemptions was prompted by an Indiana Court of Appeals decision in June that said Jeffersonville used the ordinance unconstitutionally in the case of Eric Dowdell, a Clarksville man who wanted to watch his son play baseball in the city's Little League Park.

Dowdell was convicted of sexual battery in 1996 and sentenced to three years in prison, with two years of the sentence suspended. His requirement to register as a sex offender expired in 2006.

The city was given 30 days to ask the Court of Appeals to reconsider its decision or ask the Indiana Supreme Court to review the case.

Attorney Larry Wilder — who represented Jeffersonville in the Dowdell case — filed a petition in July with the Court of Appeals to have the case transferred for review by the Indiana Supreme Court, but he said the transfer was denied.

The Supreme Court does not have to give a reason why it denies review of cases, he said.

Though Dowdell's requirement to register as a sex offender expired in 2006, appeals to the city in 2007 and 2008 to be able to attend his son's games were denied, once because he didn't have proper documents and another time when he admitted to facing other charges after his 1996 conviction.

Ken Falk — legal director for the American Civil Liberties Union and Dowdell's lawyer — said in June the city council should repeal the ordinance.

He said he still sees it as an infringement on an individual's rights, despite the changes being made.

“I still contend that a blanket prohibition is unconstitutional,” Falk said Wednesday. But he said he is pleased that his client “now has the same rights as everyone else.”

Fetz said he proposed the ordinance to protect the public, but included the exemption provision because he felt some sex offenders who were rehabilitated might not pose much of a threat.

“We wanted to have that (exemption) available, but the court is telling us it's all or none,” Fetz said.

David A. Mann of the Jeffersonville News & Tribune has this report:
Following more than a year of legal challenges and appeals, the Jeffersonville City Council on Wednesday updated an ordinance that bans sex offenders from entering city parks.

The update bans only those offenders currently required to register. And it removes an exemption process that had been labeled overly burdensome by the Indiana Court of Appeals.

The sex offender ordinance was first introduced in Jeffersonville in 2006, explained attorney Larry Wilder, who wrote and defended the ordinance.

Since its passage, he said, “the evolution of legislation finds itself being dictated … mandated by the courts.”

Eric Dowdell, a local resident who was convicted of sexual battery of a 13-year-old girl in 1996, applied for an exemption to the city’s ordinance so he could watch his son play Little League baseball.

He was initially denied. He challenged the denial with the help of the Indiana branch of the American Civil Liberties Union.

In June, the Court of Appeals ruled the ordinance was unconstitutional as it applies to Dowdell because he’d serve his sentence and completed his requirement to register on the sex offender list prior to ordinance’s passage.

Wilder explained that the Court of Appeals ruling — along with a few other, similar and related decisions — changed the law.

“It became clear and apparent that you as a city … need to make a decision one way or another,” he said.

The ordinance was passed unanimously by the council on only its first reading. It will still require two additional votes before becoming law. As it does, the council will have to repeal its old ordinance. It’ll also have to re-notify the county’s sex offenders of the change.

Here are earlier ILB entries on the Jeffersonville ordinance.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Ind. App.Ct. Decisions | Indiana Government | Indiana Law

Ind. Courts - "LaPorte judge tosses plea agreement in shooting, OWI cases"

Stan Maddux of the South Bend Tribune reports today on LaPorte County Judge Tom Alevizos in a story that begins:

LAPORTE — Two defendants who thought they were entering plea agreements and avoiding jail time were told otherwise by a LaPorte judge.

Judge Tom Alevizos rejected plea agreements in cases involving a repeat drunk driving offender and man who fired a gun at the head of a female acquaintance.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Inmates' sexual romps not a crime"

That s the headline to a brief AP story today about yesterday's Court of Appeals 2-1 decision in the case of State of Indiana v. Misty Moore - see ILB summary here, 3rd case. From the story:

The Indiana Court of Appeals says six inmates at the Greene County Jail didn't commit a crime when they sneaked into each other's cells to have sex.

The 2-1 ruling upheld Greene Superior Court Judge Dena Martin's decision dismissing escape charges against three men and three women. Martin ruled the inmates didn't commit a crime because they didn't intend to leave the jail.

Two appellate judges agreed, but Judge Ezra Friedlander issued a lengthy dissent Wednesday, reasoning that the inmates committed escape because they left the cells where they were ordered confined.

Court records say the men -- ages 44, 38 and 17 -- and the women -- ages 27, 26 and 21 -- crawled through the ceiling after midnight, having sex and drinking homemade alcohol.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Disciplinary complaint filed against Marion County prosecutor Carl Brizzi [More]

This news first appeared late yesterday afternoon in Terry Burns Indianapolis Times Blog. I checked the Roll of Attorneys for verification - and found this information.

Today Jon Murray has this story in the Indianapolis Star - some quotes:

The Indiana Supreme Court's Disciplinary Commission has leveled charges against Marion County Prosecutor Carl Brizzi for public comments about two cases, including the 2006 Hamilton Avenue slayings.

The commission accuses Brizzi, a Republican, of making comments in a 2006 news release and during a 2008 news conference that went beyond informing the public of his decisions to file charges.

The complaint cites several comments by Brizzi that condemn the two defendants accused of killing seven people on Hamilton Avenue, including, "They weren't going to let anyone or anything get in the way of what they believed to be an easy score." He said the crime merited the death penalty.

Last year, Brizzi speculated about accused serial killer Bruce Mendenhall's mindset and discussed evidence against him in an Indianapolis slaying.

The commission says in its Oct. 1 verified complaint that such comments outside the courtroom violate professional rules of conduct and could prejudice a case. * * *

"I think the timing is suspicious," Brizzi said Wednesday. "I will reserve comment until I see the complaint."

Interesting comment from Mr. Brizzi re the Disciplinary Commission ...

[More] I took a look at the Indiana Supreme Court Disciplinary Commission website to see how the process works. This section about "Complaint Screening and Investigation" is informative:

What happens if I file a grievance against a lawyer? We review your grievance and may dismiss it if it does not raise a substantial question of misconduct. If so, you and the lawyer will be notified. Otherwise, the grievance is investigated. This includes notifying the lawyer of the grievance and requiring the lawyer to respond in writing to the grievance. After our investigation, we again review the matter and decide whether or not there is probable lawyer misconduct. If not, we dismiss the grievance with written notice to you and the lawyer.

What happens if the investigation reveals probable misconduct? If we believe there is probable lawyer misconduct, the full Disciplinary Commission will review the matter. If the Commission believes that th e lawyer has engaged in misconduct for which he or she should be disciplined, we file a complaint with the Clerk of the Supreme Court formally charging the lawyer with misconduct. If not, it will be dismissed, and you will be notified.

Posted by Marcia Oddi on Thursday, October 08, 2009
Posted to Indiana Courts

Wednesday, October 07, 2009

Ind. Decisions - More on "Ind. court says no warrant needed for DNA test"

The Court of Appeals 2-1 decision Sept. 30th in the case of Arturo Garcia-Torres v. State of Indiana (ILB summary here) is the subject of a note today by Orin Kerr, law professor at GW Law, posted at The Volokh Conspiracy - see the entry and comments here.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "A memorial service will be held for Deb Hepler this Sunday October 11th" [Updated]

Message from the Indiana Legal Services Board President Paul A. Leonard, Jr.:

It is with deep sadness that I report to you the passing of Deb Hepler this morning [Oct. 5]. As you know, Deb was a very active and passionate member of our board for many years. What you may not have known is that she was fighting breast cancer during this last year, while still putting tremendous energy into her work for the poor, and into Indiana Legal Services. Her passing is a loss to the entire legal services community, and our condolences go out to her family.

A memorial service will be held for Deb Hepler this Sunday October 11th at 3:30pm at the Knights of Columbus (71st and Keystone).

Deb's daughter, Anne, informed me that Judge McKinney will be speaking at approximately 4:00pm and then Deb's family and any others may say some words about Deb.

Anne requested that people wear purple or red (Deb's favorite colors) as Deb would want this to be a celebration of her life.

Please let others who knew Deb know of this memorial as Anne has requested my help in informing the legal community of the memorial.

Maggie Smith writes:
Deb Hepler used to work at my law firm before she left to become one of Judge McKinney’s permanent clerks.

Deb's family has asked that we let the legal community know the information about her memorial service. If you believe it is appropriate, please forward this to whomever you want.

[Updated 10/8/09] The Indianapolis Star today has this obituary.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Indiana Courts

Ind. Courts - What if the Court of Appeals held an oral argument, and nobody, not even the attorneys, came?

Monday's list of upcoming oral arguments included this entry for October 7th:

1:30 PM - Michael Greer and John Maggi v. Edwin G. Buss, Commissioner of the Indiana Department of Corrections, et al. - THIS ORAL ARGUMENT HAS BEEN CANCELLED AND WILL BE RESCHEDULED AT A LATER DATE
Last week's list, however, had the case description in full. The scheduled panel members were listed as: Judges Darden, Robb and Mathias.

What happened? The ILB has received this note of explanation Monday from one of the attorneys in the case, Gavin Rose, ACLU of Indiana:


You noted on your blog this morning that the oral argument in the Greer case (which was scheduled for this Wednesday afternoon) had been cancelled to be rescheduled at a later date. I thought you might enjoy the back story to that, because everyone involved is really in your debt.

It appears that what happened is this: In late August, the Court generated an order setting oral argument. However, this order was never transmitted to the Clerk’s office. Therefore, information concerning the argument never appeared on the docket, nor was it forwarded to either party.

The first any attorney on the case heard of the argument was a week ago, when I noticed from your blog that the case had been set for argument. It seems like the formal argument calendar, from which I assume you get your information, is maintained by the Court itself, rather than the Clerk.

The docket now reflects that an order was generated on August 20th but not sent out until September 28th, after I spoke with the Clerk’s office. Because of the late notice, the State requested (without objection) that the argument be continued.

I have to imagine, however, that if you did not publish the argument schedule on your blog, the panel would have been the only people to show up for the argument.

So, thanks

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. App.Ct. Decisions

Law - Changes to the Federal Register to make it more accessible - Part II [Updated]

Earlier today I posted Part I, detailing the new availability of Federal Register data in XML format. This Part II hits a little closer to home, because it touches on issues related to authentication, which I've raised in the past with respect to the Indiana Register.

Carl Malamud has posted an entry on the O'Reilly Radar website titled "Questions (and Answers!) About the Federal Register." Some quotes:

[I]magine my surprise when I got a call from the White House saying they were making Raymond Mosley, Director of the Office of the Federal Register (OFR) and Michael L. Wash, the Chief Information Officer of the Government Printing Office (GPO) available just in case there were any technical questions from the net. * * *

Question: Ray, a lot of people talk about authenticity as something that happens at the final point of information dissemination, like the FDSyS system. But, authenticity goes back to the root of the content. Can you talk a little bit about what you folks do in the Office of the Federal Register to make sure you're only publishing the real thing? What's to prevent me from creating a fake office or submitting on behalf of somebody else or otherwise hacking the system?

Ray Mosley: We have a number of safeguards to ensure that impostors do not publish faked documents. About 40 per cent of all documents submitted are all-electronic, digitally signed originals. We require digital signatures to have medium level assurance, and be issued in compliance with the Federal Bridge Certificate Authority requirements. For signed ink-on-paper original documents, we have other controls, which we won't discuss in great detail for obvious security reasons. One of the biggest factors is human. We have experienced editors and a legal staff who could recognize fraudulent documents submitted by anyone foolish enough to risk a felony conviction. We have a system of agency Liaison Officers who vouch for their agencies' documents. We have almost daily contact and personal relationships with those liaisons and many other agency program staff and general counsel. Major regulatory documents are often sent for pre-submission review, so we know what is in the pipeline. "Start-up" agencies' documents do not get past the front door until our legal staff has checked out their legal authority and bona fides.

We also maintain a "chain of custody" throughout the editorial process. When we edit documents, we maintain an electronic record of every change and annotate those changes with notes to record the authorization of the agency. We share the GPO production network with our statutory partners, which largely eliminates errors in transferring files. We feed files to GPO all day, and exchange production information all day. GPO does not independently alter any Federal Register material. Their production staff can and does call to consult with senior OFR staff at any time of day or night.

Question: There's a lot of concern about authenticity, particularly from groups like law librarians. Mike, can you talk about digital signatures and other things you have in place to make sure you're looking at the real deal when you see an official journal? What happens when copies of this stuff get made .... is there anyway to see that you're not looking at a Bogus Register?

[ILB - In his answer, Mike Wash, who I've met and who is a Purdue grad, moves from discussing authentication of the current Federal Register, to the new XML files, which are currently not authenticated ...]

Mike Wash: The XML is not digitally signed. The Office of the Federal Register is working with Data.gov to enhance the language on Data.gov to clearly indicate that the XML is not signed. New language is being added to the Federal Register pages on Data.gov that will read as follows:

The current XML data set is not yet an official format of the Federal Register. Only the PDF and Text versions have legal status as parts of the official online format of the Federal Register. The XML-structured files are derived from SGML-tagged data and printing codes, which may produce anomalies in display. In addition, the XML data does not yet include image files. Users who require a higher level of assurance may wish to consult the official version of the Federal Register on FDsys.gov The FDsys data set includes digitally signed Federal Register PDF files, which may be relied upon as evidence in a court of law. [See: http://www.fdsys.gov/fdsys/browse/collection.action?collectionCode=FR ]
Our XML user guide explains that we may digitally sign XML files in the future, but for now we are still concentrating on enhancing the display and content of XML files. We require complete assurance that the XML product is a true rendition of the FR official legal record before proceeding with digital signatures. As the official publisher, data integrity is paramount. For us, the equation is: digital signature = authentic official edition.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to General Law Related

Ind. Decisions - Supreme Court issues one today

In Suzanne Hebert Hamilton v. Richard Wayne Hamilton, a 12-page, 5-0 opinion, Justice Boehm writes:

This case involves a Florida child support order registered for enforcement in Indiana pursuant to the Uniform Interstate Family Support Act. The Indiana trial court issued a contempt order requiring the father to pay less than the full amount of the Florida support obligation to avoid incarceration. We hold that the trial court‘s order did not impermissibly modify the foreign judgment. We also hold that the Federal Consumer Credit Protection Act, which limits the amount of wages that may be subject to garnishment, does not restrict the amount of support that may be awarded. * * *

This cause is remanded for further proceedings not inconsistent with this opinion.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. Sup.Ct. Decisions

Law - "Belmont (TN) To Open New Law School -- Just Because They Can"

Hilarious must read, with "you have to be kidding" portions, from Above the Law by Elie Mystal.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (2):

In Buckeye State Mutual Insurance Co. v. Keith Carfield, et al, a 9-page, 2-1 opinion, Justice Riley writes:

Buckeye raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in concluding that Keith was entitled to coverage under an insurance policy issued by Buckeye, his insurance carrier, because the truck involved in the accident was furnished or available for his regular use. * * *

Although the facts before us indicate that there was a clear periodic use of the Silverado by Keith, we agree with the trial court that this does not reach the level of consistent, regular use called for under the policy's exclusion. Because the vehicle is a farm truck, twice yearly and for a limited time, the vehicle would be used on Keith's fields. However, depending on who was driving the heavy farm equipment, Keith or Weldon would be driving the truck. Thus, even during these sixty-two days that the truck was available for Keith's use, it was not furnished to him nor did he drive the Silverado on a routine or recurring basis. Therefore, we find that the exclusion does not apply and Keith is entitled to coverage under Buckeye's policy. * * * Affirmed.

FRIEDLANDER, J., concurs.
BAKER, C.J., dissents with separate opinion. [which concludes] I believe that both the trial court and the majority split hairs by concluding, based on these facts, that although the truck was “available” to Carfield during the farming seasons, it was not “available” for his “regular” use because he did not generally use it outside of those two seasons. This truck was a farm truck, to be used for farming purposes. Its primary usefulness occurred during the farming seasons, and during those seasons, Carfield used it every day. In the off seasons, Carfield continued to use it, albeit less frequently. He did not need to ask permission to use it, he changed the truck's oil, and the vehicle spent the night at his house more than ten times. I believe that his recurring use of the truck over a period of four years, including heavy usage during the farming seasons, constitutes “regular” use. Therefore, I would reverse.

In LaGrange County Regional Utility District v. Jerry Bubb, et al , a 15-page opinion, Chief Judge Baker writes:
Here, we are presented with a matter of first impression, namely, whether the Indiana Utility Regulatory Commission (IURC) properly reviewed the rates and fees charged by a regional sewage district at the request of a campground owner. Indiana Code section 13-26-11-2.1 (the Statute), which became effective on January 1, 2005, allows a campground owner to request the IURC to review the fees charged by certain regional utility districts, including regional sewage districts. The Statute also provides that when such a request is made, the IURC's appeals division (CAD) is to conduct an informal review, which includes a “prompt and thorough investigation of the dispute.” I.C. § 13-26-11-2.1(d). If the IURC concludes that the campground owner was charged an excessive fee, the regional sewer district “shall” refund the excessive amount. Id. at -2.1(e).

Appellant-respondent LaGrange County Regional Utility District (LaGrange) appeals an order issued by the appellee-intervenor IURC, requiring it to refund an excessive fee to appellees-petitioners Jerry and Sandy Bubb (the Bubbs), owners of Gordon's Campground, arguing that the IURC lost jurisdiction over the dispute. In the alternative, LaGrange contends that even if the IURC retained jurisdiction over the dispute, it did not have the authority to grant the ordered relief. Finding that the IURC retained jurisdiction and that it had the authority to order the relief granted, we affirm the judgment of the IURC. * * *

A. The Rule. * * * [W]e emphasize that the IURC's failure to promulgate any rules to implement the Statute is inappropriate. We recognize that the Statute uses the permissive term “may,” I.C. § 13-26-11-2.1(i), when addressing the IURC's duty to adopt rules rather than the mandatory term “shall.” Nevertheless, if the IURC had adopted rules establishing how it would proceed, a portion of this dispute could have been avoided.

B. The Statute. In a related argument, LaGrange maintains that the CAD did not conduct a timely investigation or render its disposition in a timely manner as required by the Statute. The Statute provides, in relevant part, that when a campground owner requests a review, the CAD “shall provide an informal review of the disputed matter. The review must include a prompt and thorough investigation of the dispute.” I.C. § 13-26-11-2.1(d). * * *

We find the instant case to be more analogous to Hancock REMC. Specifically, similar to the statute at issue in Hancock REMC, the Statute does not contain language that restrains the IURC from acting if the CAD fails to conduct a prompt investigation. Likewise, the Statute does not provide for an adverse consequence or state that the IURC loses jurisdiction if the CAD fails to conduct a prompt investigation.

Furthermore, unlike the statute at issue in United REMC, the “prompt” investigation requirement does not go to the essence of the Statute. * * *

III. Authority to Grant Relief. LaGrange maintains that even if the IURC retained jurisdiction, it did not have authority to grant relief because the CAD's review was untimely. * * *

Furthermore, the Statute does not contain any language limiting the IURC's ability to grant relief if the CAD does not complete its review of the dispute within a certain time period. Indeed, such a rule would be illogical, inasmuch as relief would be foreclosed to an overcharged campground owner through no fault of his own. We will not presume that the legislature intended such an absurd and unjust result, especially in light of the plain language of the Statute. See Cubel v. Cubel, 876 N.E.2d 1117, 1120 (Ind. 2007) (stating that “[t]he Court presumes that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals”). Therefore, we conclude that the IURC had the authority to grant relief and affirm its decision. The decision of the IURC is affirmed.

This opinion, State of Indiana v. Misty Moore, is 25-pages long, with the dissent beginning on p. 7. Chief Judge Baker's majority opinion concludes:
Under these circumstances, we can only conclude that where, as here, inmates have no intent or plan to flee from detention in the penal facility in which they are confined, they cannot be guilty of the crime of escape when they merely enter restricted areas of the facility without permission. They may be in violation of facility rules, and can be punished accordingly, but have not committed a crime. We acknowledge that the relevant statutes could be drafted more artfully and explicitly, but given the well-established rules that we construe penal statutes strictly against the State and that ambiguities should be resolved in favor of the accused, Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009), close calls such as this one must be resolved in the defendants‘ favor. Therefore, we find that the trial court did not abuse its discretion by dismissing the charges herein. The judgment of the trial court is affirmed.

RILEY, J., concurs.
FRIEDLANDER, J., dissents with opinion. [which begins] Upon my view that Ind. Code Ann. § 35-44-3-5 (West, PREMISE through 2009 Public Laws approved and effective though 4/20/2009) applies where incarcerated persons escape from a cell in a penal facility, but did not intend to leave the boundaries of the penal facility, I respectfully dissent from the decision to affirm the dismissal of escape charges against the Inmates. * * * [and concludes] I believe that when the Inmates were locked in their cells in the Greene County Jail, they were lawfully detained therein, and if they broke out of the cell through the ceiling as alleged, they committed the offense of escape within the meaning of I.C. § 35-44-3-5. I would reverse the trial court and reinstate the charges.

Adam Gaynor v. State of Indiana - "Adam Gaynor was convicted of multiple drug offenses. He argues two of his convictions, manufacturing methamphetamine and maintaining a common nuisance, were not supported by sufficient evidence. We affirm his conviction of manufacturing methamphetamine, but we reverse his conviction of maintaining a common nuisance because the State did not prove he had any control over the premises."

NFP civil opinions today (0):

NFP criminal opinions today (7):

Lymann Lamarr Spurlock v. State of Indiana (NFP)

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

Henry Coleman v. State of Indiana (NFP)

Marco Aca v. State of Indiana (NFP)

Teresa M. Vinson v. State of Indiana (NFP)

Samuel Wait v. State of Indiana (NFP)

Deborah J. Schwartz v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Illinois / Indiana bankruptcy case

In re: James E. Rose (CD Ill.) is a 10-page opinion. Judge Williams writes:

In 2005, James E. Rose filed for bankruptcy in the United States Bankruptcy Court for the Central District of Illinois. Mercantile National Bank of Indiana (“Mercantile”) filed an adversary complaint challenging the dischargeability of a debt that Rose owed to it arising from a previous judgment entered in an Indiana superior court. The judgment was based, in part, on a claim Mercantile had made under Indiana’s Crime Victims’ Compensation Act (“CVCA”), Ind. Code § 34-24-3-1. In June 2007, the Indiana Supreme Court ruled that Mercantile had not properly brought the new CVCA claim because it was filed during a proceedings supplemental to collect on an already existing judgment, rather than as a separate claim under a new cause number. Rose v. Mercantile Nat’l Bank of Hammond, 868 N.E.2d 772, 777 (Ind. 2007). As a result, the bankruptcy court agreed, ruling that the applicable two-year statute of limitations barred Mercantile’s complaint. The bankruptcy court granted Rose’s motion to dismiss Mercantile’s adversary complaint, and the district court affirmed. In re Rose, No. 08-CV-2116, 2008 WL 4055783, at *6 (C.D. Ill. Aug. 26, 2008).

After oral argument in this case, the Indiana Court of joint shareholder, Robert Underwood, was properly commenced within the statute of limitations despite being improvidently filed as part of a proceedings supplemental. Mercantile Nat’l Bank of Hammond v. Underwood, 906 N.E.2d 881 (Ind. Ct. App. 2009). Because Mercantile properly commenced its CVCA claim within the statute of limitations, we reverse the ruling of the district court. * * *

As the question involves the underlying state claim for damages, this court applies state law. Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992). We concur with the reasoning of the Indiana Court of Appeals that the CVCA claim was properly commenced within the statute of limitations when Mercantile amended its complaint. This most recent Indiana Court of Appeals decision, which the Indiana Supreme Court declined to reconsider, is the final word that Mercantile’s CVCA claim did not “evaporate into the ether” when the Indiana Supreme Court ruled later that it was improvidently filed during a proceeding supplemental. Mercantile, 906 N.E.2d at 887. Therefore, Mercantile’s complaint should not have been dismissed on statute of limitations grounds.

B. Mercantile’s Motion for Certification is Denied

In light of our decision in Mercantile’s favor, we decline its request to certify a question to the Indiana Supreme Court.


Therefore, we REVERSE the decision of the district court and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. (7th Cir.) Decisions

Law - Changes to the Federal Register to make it more accessible - Part I

"A More Web-Friendly Register: With Federal Data in XML Form, Users Have New Options," is the headline to this story by Ed O'Keefe in Monday's Washington Post. The Federal Register as you are accustomed to reading it online will remain. But now, in addition:

Starting Monday, issues dating back to 2000 will be available at Data.gov in a form known in the Web world as XML, which allows users to transport data from a Web site and store it, reorganize it or customize it elsewhere. Officials suggested that the move puts readers, rather than the government, in charge of deciding how to access the Register's reams of information.

"In much the same way that newspapers have looked at making content more accessible by changing the print and typeface, we can now do the same thing by making the Federal Register available such that people can manipulate it and customize it and reuse the content to make the information even more accessible," said Beth Noveck, director of the White House Open Government Initiative.

So what does this mean to you? It means secondary views of viewing the data from the Federal Register may be more easily created by non-governmental sources. Here is are some quotes from a conversation Ed O'Keefe of the WAPO had with Carl Malamud, president of Public.Resource.Org, a group devoted to ensuring the online publication of public records, whose name you have seen before in the ILB:
"I've been very impressed. This really is a sea change, and very much for the better," he said in an e-mail.

Want proof? Malamud recommended GovPulse.us, a winner of the recent Apps for America competition. The site tracks agency activity in the Register with graphics, mapping and word clouds -- a much easier way to digest the Register's reams of information, until now only viewed online in lengthy pdf documents. GovPulse was built by three developers in their spare time who've had to screenscrape FederalRegister.gov to get all the data. The new XML format will make their jobs easier and the site "will really start to sing," Malamud said.

His group also built a test site: http://webchick.org/FRtoXML/ Notice the table of contents, color-coded regulations, cross-linking and links to maps of specific addresses? Before the XML capabilities, users could never have perused the Register in such fashion.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to General Law Related

Courts - "Florida pushes ahead with an all-digital courthouse"

A long and interesting article Oct. 5 in the Orlando Sentinel, reported by Aaron Deslatte. Some quotes:

TALLAHASSEE - Florida courts could look a lot more inviting to Internet users in the near future.

The Florida Supreme Court is moving toward opening more court records to digital users, planning to approve rules this fall to govern the digital road. * * *

In the not-too-distant future, Florida court clerks would feed filings -- from divorce records and civil suits to court testimony and judicial orders -- into a single Web portal that would allow instant access to anyone worldwide.

"It's a cost savings to the public," said Marion County Court Clerk David Ellspermann, who served on a court-created committee that spent the last two years researching and drafting the proposed new rules. "If you're not at my courthouse interrupting my staff, then I get more work done."

For much of this decade, though, Florida court administrators have struggled with how to balance the state's tradition of broad government openness against 21st-century Internet criminals.

Since 2006, the Supreme Court has barred county clerks from placing court records online. It's fear: That confidential information like Social Security or bank account numbers could fall into the hands of criminals or that data companies could use search programs to aggregate individual information that would be packaged with other data for telemarketing.

The order was issued after a few court clerks began scanning court documents and placing them on their Web sites. In 2005, Ellspermann was the first clerk to start redacting the documents he was placing online.

But the move toward digital records had already incited a statewide debate over whether all 1,000-plus exemptions carved into Florida's public records laws by the state Legislature should be applied to court records. Traditionally, everything in a paper court file was available to the public unless it was ordered sealed by a judge.

Critics worried that if everything in a file was available digitally, casual Internet users -- so-called "jammy surfers," people sitting at a computer in their pajamas -- could access personal information about individuals and, potentially, information deemed "trade secrets" by companies.

The struggle played out behind the scenes between county clerks, judges, media companies and others about how and when to make paper court records available on the Internet.

"We ran into this huge problem, which had not been thought about by anybody. To what extent does a legislative exemption from the public records apply when that information appears in the online court record?" said John Kaney, Jr., a Volusia County lawyer and general counsel for the First Amendment Foundation, which is financially supported by the media.

The Committee on Privacy and Court Records, formed by the court to study the issue, reported in 2006 that it appeared all the statutory exemptions did apply, based on the way judicial rules were worded — but that such an interpretation flew in the face of Florida's open-records tradition and was unworkable when applied to court records.

While the panel and court agreed electronic access to non-confidential records should be a goal, the Supreme Court withheld judgment on whether it supported applying all 1,000 exemptions to court records. Rather, it tasked another panel called the Committee on Access to Court Records to study how to fix the rules.

"The amount of information collected in litigation is enormous," said Jon Mills, a University of Florida law professor and former state House speaker who chaired the first "privacy" committee.

"This is the classic horse out of the barn analogy. Once information has gone on the Web, it's sort of gone."

Last year, the second committee recommended a new rule that creates 19 categories for confidential documents, including sexually transmitted disease records, paternity determinations, the names of child abuse victims and identities of confidential informants. Lawyers will also have the option of asking a judge to close additional records.

The Supreme Court heard arguments over the proposal last month from clerks, media lawyers, and the committee that drafted it. Although some changes related to grand jury information are under discussion, most watchers expect the rule to be put in place in the coming months.

That will set off an educational process for lawyers and the public, its authors said.

"Part of the educational process that needs to happen is to make lawyers, people, more aware that that which is in a court file is publicly viewable," said Miami-Dade Judge Judith Kreeger, who chaired the "access" committee. "And when it becomes available on the Internet, it will become instantaneously publicly viewable. ... I think it has good parts and I think it has risks."

The largest remaining hurdle is how to pay the costs of a statewide Web portal to access court records, committee members said.

Meanwhile, the courts are getting a better idea of the types of people who would likely be the biggest users of electronic court information.

Two years ago, the Supreme Court approved a pilot project in Manatee County, where court administrators have been scanning court documents and making them available only to registered users who identify themselves.

Of the 5,700 registered users, 3,000 were lawyers from around the country, said project manager Jeff Taylor. Another 500 were law enforcement agencies and 1,500 were from the general public. None of the registered users identified themselves as data "aggregation" companies, he said.

"Usually, they're looking for data more than images," Taylor said.

This is different from Indiana's JTAC project, which is basically putting only the dockets online, with limited public availability. The Florida project looks to be closer to the federal PACER effort, with the documents filed themselves online. And perhaps even a step further than PACER -- which contains electronically filed documents. Here Florida court administrators are scanning the filed paper court documents.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Courts in general

Courts - Via Iqbal, the Supreme Court Slams the Door

That is the opinion of law prof Herman Schwarzt in this article published Sept. 30th in The Nation. A quote:

In the few months since the decision in Iqbal came down,it has resulted in the dismissal of 1500 District Court and 100 appellate court cases, many if not most of which would probably have survived; more dismissal motions are pending. Complaints against drug and other companies for multi-organ failure after taking an epilepsy drug, for false marketing and for excessive lead in baby bottle coolers have all been thrown out at the pleading stage, as have many civil rights cases.. Iqbal has also been used to dismiss a First Amendment suit by anti-Bush protesters against the Secret Service, and complaints against Coca-Cola and its Colombian subsidiaries for the murder and torture of trade unionists. In all these cases, the mental element--what defendants knew and when they knew it--is usually crucial, and without going into a defendant's files and oral questioning of knowledgeable people, that cannot be determined.

The Iqbal case is just the latest in a long line of decisions shutting the courthouse doors, few of which have drawn any public attention.

Here is a long list of earlier ILB entries on the May 18th SCOTUS decision in Ashcroft v. Iqbal.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Courts in general

Ind. Decisions - Two more NFP COA decisions reclassified

The cases are:

Fouchard Guillaume and Christine Guillaume v. Hall Farms, Inc., and Midwest Marketing Co. Inc. (42A01-0904-CV-163 ) - NFP opinion issued 8/19/09; Appellee's motion to publish 9/11/09; Opinion certified 9/30/09; Appellee's motion to publish granted 10/1/09. From the opinion:

Fouchard and Christine Guillaume appeal the trial court’s grant of summary judgment in favor of Hall Farms, Inc., and Midwest Marketing Co., Inc. (“Midwest”). They also attempt an interlocutory appeal regarding the trial court’s denial of their motion to amend the complaint. We affirm the grant of summary judgment and dismiss the failed interlocutory appeal.
Term. of Parent-Child Rel. of H.L.; A.Z. v. IDCS . (49A05-0902-JV-73 ) - NFP opinion issued 8/4/09; Appellant's motion to publish 8/28/09; Opinion certified 9/14/09; Appellee's motion to publish granted 10/1/09. From the opinion:
Father has not shown that he was deprived of due process. The DCS established by clear and convincing evidence the requisite elements to support the termination of Father’s parental rights.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Evans-Koethe trial set for January"

Updating this ILB entry from July 17th that was headed "Venue changed in LaPorte County judge's case; 200 anonymous online newspaper reader comments entered in evidence," yesterday the LaPorte Herald-Argus reported:

CROWN POINT - Superior Court 3 Judge Jennifer Evans-Koethe and her husband had hearings Monday in regards to their cases from the December incident where Evans-Koethe was grazed in the head with a bullet.

Evans-Koethe had a pretrial conference Monday morning and her trial is still set to begin Jan. 4, 2010. She was indicted on a charge of obstruction of justice, a Class D felony. The indictment said she asked for a handwritten note, which was evidence in an investigation of the shooting Dec. 22, to be destroyed on Dec. 23.

Her husband, Stephan Koethe, also had a hearing in Crown Point on Monday. He has another hearing on Jan. 4. He has been indicted on charges of false informing, a Class A misdemeanor and criminal recklessness, a Class B misdemeanor.

Evans-Koethe was suspended indefinitely with pay following the indictment in May.

The case was moved to Lake County when defense attorney Michael Tuszynski of the South Bend firm of William P. Stanley & Associates successfully filed a change of venue request. He cited media coverage of the case and said Evans-Koethe could not get a fair jury in the county.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Indiana Courts

Ind. Courts - "Madison County courts get money for programs "

Aaron Durham reported Monday in NewsLinks Indiana:

Madison County specialty courts received a grant totaling almost $1 million.

A specialty court deals with defendants who have a psychological condition or an addiction. The money, provided by federal stimulus dollars, is helping defendants in those courts stay out of jail.

The county has had success with these programs and by combining the three different specialty courts. The hope is that by using diversion programs, offenders will stay out of trouble.

A portion of the grant will fund a study into how more diversion programs could help keep the county’s youth out of trouble.

“The ultimate goal is we won’t have them in the criminal courts re-offending and sending them back to prison, which will save tax payers money,” Judge George Pancol said.

While the funds are expected to run the program for the next two years, there is no guarantee for the future. An additional seven workers are expected to be hired into the program - one of which will be the program’s coordinator, whose goal will be to secure funds for the next year.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Indiana Courts

Ind. Decisions - "Muncie annexation ruling reversed"

Yesterday's Court of Appeals opinion in Annexation of Certain Territory to City of Muncie, Indiana v. Certain Halteman Village Section I and Brewington Woods Landowners (ILB summary here), is the topic of this story by Rick Yencer in today's Muncie Star-Press that begins:

The Indiana Court of Appeals has reversed a local court decision that rejected Muncie's 2007 annexation of Brewington Woods and a portion of Halteman Village.

Last January, Delaware Circuit Court 4 Judge John Feick upheld remonstrators' petition that claimed the city did not account for day-to-day expenses to provide services to those areas. The petition also alleged the city did not take steps to amend fiscal plans to reflect the impact of property tax caps and did not comply with other provisions of state annexation law.

The appeals court reversed the trial court on all issues in an order handed down Tuesday. The justices indicated the city met its burden under state law to provide services and pay for them.

"We have also found that the landowners failed to prove that the annexation would have a significant financial impact or that 65 percent of them continued to oppose the annexation," the justices wrote.

Posted by Marcia Oddi on Wednesday, October 07, 2009
Posted to Ind. App.Ct. Decisions

Tuesday, October 06, 2009

Law - AG Holder on the stalled Dawn Johnsen nomination

Updating this long list of ILB entries on IU Law professor Dawn Johnsen's long pending nomination to the Office of Legal Counsel, The Blog of Legal Times reports this afternoon:

Attorney General Eric Holder Jr. told reporters today that the nomination of Dawn Johnsen to run the Office of Legal Counsel has been pending for "far too long" and that he is confident Johnsen will be confirmed.

Holder, addressing more than two dozen reporters in a conference room at the Justice Department, said he is looking forward to working with Johnsen on the 5th floor of Main Justice. Johnsen was nominated in January.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to General Law Related

Ind. Courts - More on "Easterbrook Slams CD Illinois Judge For Allowing Cameras in the Courtroom"

Updating this ILB entry from Oct. 2nd, Ameet Sachdev, in the Chicago Law Blog, writes:

The controversy may stir more debate about a ban some think is outdated. In spite of the rapid advancement of technology that gives the public uncensored access to events before unseen, the media still rely on artists’ rendering to capture trial action or arguments at the U.S. Supreme Court.

Michael Monico, a Chicago lawyer who is president of the 7th Circuit Bar Association, said it may be time for the jurisdiction to take a new look at the rules prohibiting cameras.

“I thought they would be intimidating to witnesses,” Monico said. “But my views have changed over the years.”

Supreme Court Justice David Souter, one of the strongest opponents of cameras in the courtroom, once said “I think the case is so strong that I can tell you the day you see a camera come into our courtroom it’s going to roll over my dead body.”

With Souter’s retirement this year, some say Congress has a chance to lift the ban. “Several state courts televise trials without problems,” said Steven Lubet, an expert on trial strategy and legal ethics at Northwestern University School of Law. “All of the predicted problems turned out to be illusory. People thought lawyers would grandstand or the public would misunderstand but none of that happened.”

In Illinois, cameras are not allowed in trial courts. But state appellate courts, including the Supreme Court, have allowed video cameras and audio recording devices upon request since 1985. In 2008, the Illinois Supreme Court began posting video recordings of oral arguments on its Web site. A court spokesman said he’s not aware of any complaints about the recordings.

Easterbrook acknowledged the ongoing debate about the role of cameras in the courtroom in his Sept. 28 memo on the McDade matter, but he did not to take sides.

“No matter what one makes of these contentions, once the Judicial Conference of the United States and Judicial Council of the Seventh Circuit have adopted a policy, a judge must implement it without regard to his own views,” Easterbrook wrote.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Annexation of Certain Territory to City of Muncie, Indiana v. Certain Halteman Village Section I and Brewington Woods Landowners, a 17-page opinion, Chief Judge Baker writes:

Appellant-respondent City of Muncie (Muncie) appeals the trial court's order granting the remonstrance petitions of appellee-petitioners (collectively, the Landowners) and declaring Muncie's Ordinance Numbers 11-07 and 12-07 (collectively, the Ordinances) to be invalid. Muncie argues that the trial court erred by finding that it failed to meet its statutory burden contained within Indiana Code section 36-4-3-13 and by finding that the Landowners met their burden contained within the same statute. Finding that Muncie met its burden and the Landowners failed to meet theirs, we reverse. * * *

In sum, we have found that Muncie met its statutory burden as set forth in Indiana Code section 36-4-3-13, meaning that the trial court must order the annexation to take place unless the Landowners prove that they are entitled to relief under subsection 13(e). We have also found that the Landowners failed to prove that the annexation would have a significant financial impact or that 65% of them continued to oppose the annexation; therefore, the trial court erred by granting the remonstrance petition and declaring the Ordinances to be invalid.

Term. of Parent-Child Rel. of B.M.; M.M. & D.S. v. IDCS - "Appellant-respondent M.M. (Father) appeals the involuntary termination of his parental rights as to his minor son, B.M. Specifically, Father argues that the termination order must be set aside because the trial court failed to consider placing B.M. with his sister in lieu of termination. Concluding that the trial court properly terminated Father's parental rights, we affirm."

In Douglas Wolff v. State of Indiana , an 8-page opinion, Judge Vaidik writes:

Douglas Wolff pled guilty to criminal recklessness for firing a shotgun in the direction of his victim. Wolff’s father, the victim’s employer, thereafter fired the victim. Wolff was ordered to pay restitution in the amount of $12,789.00 to the victim for his lost earnings. Wolff now appeals the restitution order. Though Wolff’s actions may have indirectly led to the victim’s termination and consequent loss of earnings, Indiana Code § 35-50-5-3(a)(4) requires a direct causal connection. Because there is no direct and immediate link, it is simply too attenuated to hold Wolff responsible in a criminal proceeding for Wolff’s father’s actions in firing the victim. We therefore reverse.
NFP civil opinions today (2):

Clyde Piggie v. Alan Finnan (NFP) - "Appellant/Plaintiff Clyde Piggie appeals from the trial court’s refusal to file his civil rights complaint, pursuant to Indiana Code section 34-58-1-2 (2008), against Appellees/Defendants Alan Finnan and sixteen others, all apparently employees and officials of the Department of Correction. Concluding that Piggie has not established that he has exhausted his administrative remedies, we affirm."

Term. of Parent-Child Rel. of R.C., et al; T.C. v. IDCS (NFP)

NFP criminal opinions today (6):

Kenneth Winston v. State of Indiana (NFP)

William Jerde v. State of Indiana (NFP)

Bradley Combs v. State of Indiana (NFP)

Philip McCollum v. State of Indiana (NFP)

Dejuan Hurt v. State of Indiana (NFP)

Derek Anthony Lawson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Sex offenders vacating LaSalle Hotel "

Don't miss this story by Susan Brown in the NWI Times. Some quotes:

HAMMOND | Law enforcement officers have notified 12 registered sex offenders they no longer can reside at the LaSalle Hotel on Hohman Avenue in downtown Hammond.

LaSalle owner Louis Karubas on Monday confirmed last Wednesday's visit to the hotel by Lake County Sheriff's Department Police Lt. Brian Marsh; Yvette Salinas, parole district supervisor with the Indiana Department of Correction; and parole officer John Larson.

But it was a nearby bike trail maintained by the Hammond Parks & Recreation Department -- not the close proximity of the city's proposed new charter school -- that law enforcement officers gave as their reason for ordering the sex offenders to vacate the hotel.

A re-measurement of the distance between the bike trail and the hotel had found the distance to be 780 feet. State law prohibits certain sex offenders from living or working within 1,000 feet of public parks and schools. * * *

Though the DOC's Garrison said he had been told the men would be gone by this Saturday, Karubas said he asked everyone to prepare to leave sooner.

"I'm getting everyone out by Wednesday," Karubas said. "That's all I can say."

Karubas said he had never been contacted by city or school officials about there being any concerns about the hotel.

Since word spread recently of his accepting DOC parolees who had been charged with sex offenses, Karubas said he has received four offers to buy the hotel. He declined to identify the potential buyers. "I don't want to sell now," he said of the hotel he has operated for 40 years.

He questioned why the organizers of the charter school had never contacted him.

"I was never told anything about the charter school project ever or anything else for downtown," Karubas said.

Neither was Rick Sloan, owner of the Good Stuff Store, a gift and novelty shop next door to the hotel. Sloan confirmed his shop specializes in adult items commonly seen at bachelor and bachelorette parties.

The store, which also sells standard giftware such as music boxes and picture frames, has been operating at the site since 1935, Sloan said.

City consultant Tom Dabertin, the spokesman for the charter school project and a board member, said he had no personal knowledge of the hotel being found too close to park property, nor did he have knowledge of the adult material sold by Good Stuff.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Indiana Government

Ind. Law - "Re-evaluation of all Indiana solid waste management districts sought"

Bob Kasarda reports today in the NWI Times in a long story that begins:

Twenty years after sponsoring legislation creating solid waste management districts in Indiana, state Sen. Beverly Gard, R-Greenfield, has some big concerns with the size and approach of the operations that have taken shape in Lake County.

"They are totally out of control," she said.

Gard is calling for a statewide re-evaluation of the recycling districts to be undertaken by an interim study committee next summer.

Gard, who chairs the Senate Energy and Environmental Affairs Committee, said the local solid waste districts were created with the goal of reducing the amount of garbage headed to landfills at a time when disposal space was critically low. She said she intended for the districts to facilitate recycling, which was a fledgling effort at the time, and to carry out education on waste reduction.

She said she never envisioned a district growing as large and as wealthy as the one in Lake County.

The Lake County Solid Waste Management District is the largest of the 70 districts across the state, in terms of its nearly $5.2 million annual budget. That cash is generated mostly by a property tax, according to Lance Hodge, executive director of the Association of Indiana Solid Waste Management Districts.

Marion County, which already had a system in place decades ago, was not required to form a solid waste district, according to the Indiana Department of Environmental Management.

The Lake County district has eight full-time employees, including a full-time attorney paid $84,437 a year, said Executive Director Jeff Langbehn, who receives an annual salary of $102,129 and a take-home vehicle.

He defended his salary by pointing out he is an attorney and has 20 years of experience.

The Porter County district, by comparison, operates with a budget of $900,147, generated mostly by an annual fee of $13 per household. It has six full-time and four part-time employees, and a director who is paid $60,075 and afforded a take-home vehicle.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Indiana Law

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

In U.S. v. Carson (SD Ind., Judge McKinney), a 14-page opinion, Judge Wood writes:

On appeal, Carson’s primary argument is that evidence critical to his conviction should have been suppressed because probable cause did not support the issuance of the search warrant. In the alternative, he asserts that the affidavit supporting the application for the warrant contained material false statements. Finally, he argues that his confession should have been suppressed because the large quantities of drugs and alcohol that he ingested prior to his arrest and confession invalidated his waiver of his Miranda rights. We conclude that the district court correctly refused to suppress both the evidence and the confession, and we thus affirm its judgment.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues anonymous disciplinary ruling

In the Matter of: Anonymous, issued Oct. 5th, is a 4-page per curiam opinion:

We find that Respondent engaged in attorney misconduct by failing to surrender to a former client papers to which he was entitled. * * *

The Commission contends Respondent should receive a public reprimand, arguing that Respondent's misconduct was intentional, that Client's incarceration made him a vulnerable victim, and that Client's interests were harmed by not receiving the discovery materials when requested. The Court, however, notes in mitigation that there was no complaint about the quality of Respondent's representation, that there is no showing of any actual legal harm to Client, and Respondent has no prior disciplinary record in over 25 years of practice. On balance, we conclude that a private reprimand is sufficient under the circumstances of this case.

The Court concludes that Respondent violated Professional Conduct Rule 1.16(d) by not providing Client a copy of the State's responses to his discovery request after Client requested it in his February 2, 2007, letter. For Respondent's professional misconduct, the Court imposes a private reprimand.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Ind. Sup.Ct. Decisions

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

It is like siting a landfill or a nuclear plant. Updating this ILB entry from June 29th, quoting a story by Jon Murray in the Indianapolis Star that began on the hopeful note:

Marion County's second try at finding a new site for its busy traffic court and a satellite probation office could receive a crucial green light tonight.
Last night another try failed, according to this story by Francesca Jarosz in the Star, headed "Council vote turns back relocation of traffic court: Resident opposition fuels rejection of move to Northwestside." Some quotes from the longish story:
The City-County Council Monday rejected a second proposal to relocate a county traffic court and satellite probation office, forcing officials to start over with the search for a site to alleviate crowding and parking problems at the state's busiest court.

The council voted 15-10 against the bid to move the traffic court from a cramped space inside a police training building on the Far Eastside to a 25,000-square-foot former department store near West 38th Street and High School Road.

Some council members said they heeded complaints from residents of the area, who worried about convicted criminals checking in at the probation office that would replace a smaller office in the 3500 block of Lafayette Road. In the spring, similar concerns from neighbors about the probation office halted a proposal to move the facility to a shopping center near Lafayette Square Mall.

Judge Bill Young, who presides over Marion County's traffic court, said he and other court staff will begin their third -- and, he hopes, final -- attempt at finding a site. The traffic court lacks adequate parking and is intensely crowded at its current location.

Or is it fourth?

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Indiana Courts

Courts - "Justices Decline to Hear Some 2,000 Cases "

Adam Liptak of the NY Times today details some of the cases refused cert yesterday by the SCOTUS. His column begins:

WASHINGTON — The Supreme Court on Monday refused to hear appeals concerning the Pledge of Allegiance, the Confederate flag and license plates bearing the words “Choose Life.”

In those and some 2,000 other cases that accumulated during the court’s summer break, the court let stand rulings from lower courts without comment. * * *

For at least the fifth time, the Supreme Court declined to wade into the heavily litigated question of whether state motor vehicles departments may or must offer specialty license plates that say “Choose Life.” In declining to hear Choose Life Illinois v. White, No. 08-1283, the court let stand a decision that Illinois was not required to offer “Choose Life” plates along with some 60 other styles because it had “excluded the entire subject of abortion from its specialty plate program” and so was not taking sides in the abortion debate.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Courts in general

Courts - Still more on "Justices Asked to Weigh Free Speech vs. License Plates"

Updating this ILB entry from Sept. 14th, which discussed the likelihood of the 7th Circuit decision in Choose Life Illinois, Incorporated, et al. v. White, Illinois Secretary of State being granted cert by the SCOTUS, the Court yesterday denied the petition.

See this ILB entry from April 27th for background, including this NYT quote:

Illinois, on the other hand, has refused to issue a “Choose Life” plate, a decision that was challenged by a group called Choose Life Illinois, which promotes adoption. The federal appeals court in Chicago upheld Illinois’ refusal in November, and this month the losing side asked the Supreme Court to return to the question of what the constitution has to say about speech on license plates.
Today Dave McKinney writes in the Chicago Sun-Times under the headline "Abortion foes fail in bid for 'Choose Life' plate loses: High court refuses to hear case meant to force state's hand":
SPRINGFIELD -- Those opposed to abortion won't have a chance anytime soon to buy "Choose Life" license plates for their vehicles now that the U.S. Supreme Court declined Monday to weigh in on the matter.

The nation's high court refused to hear a request from an anti-abortion group, Choose Life Illinois Inc., to force the state to issue "Choose Life" license plates.

The court left in place a federal appeals ruling that Illinois officials were within their rights in trying to keep viewpoints on abortion off Illinois license plates.

After gathering 25,000 signatures in support, the group pressed Secretary of State Jesse White to allow the creation of the anti-abortion-themed specialty license plate, following the lead of surrounding states with "Choose Life" plates. * * *

The group also might attempt to bring the issue before the state Legislature after previously being unable to persuade lawmakers to approve "Choose Life" plates, which are now permitted in 20 other states, including Indiana and Missouri.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Courts in general | Ind. (7th Cir.) Decisions

Courts - Still more on "Astor Trial (Finally!) Heads to the Jury"

Updating this ILB entry from Oct. 4th, John Eligon and Matthew R. Warren of the NY Times report:

The judge overseeing the trial of Anthony D. Marshall, the son of Brooke Astor, the legendary New York society matriarch, exhorted the jury to “hang in there” on Monday afternoon, after the jury sent the judge two notes suggesting that it was struggling to reach a verdict.

The notes, and the judge’s remarks, suggested the possibility of a deadlock, although the jurors, who are to resume deliberations on Tuesday, could yet reach a verdict in one of the city’s most-watched trials in recent memory. * * *

The trial has lasted longer than had been expected. The jury of eight women and four men sat through more than 19 weeks of testimony and arguments in State Supreme Court in Manhattan. Mrs. Astor, whose fortune was estimated at more than $180 million, died two years ago at 105.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Courts in general

Ind. Courts - "St. Joseph County judge orders liquidation of Gabriele's assets"

Updating earlier ILB entries on the Gabriele estate case, Alicia Gallegos of the South Bend Tribune reports today in a story that begins:

SOUTH BEND — Some assets of Philip Gabriele's estate will soon be liquidated in order to pay for outstanding bills and legal fees associated with the late doctor's case, according to a judge's order.

The decision Friday comes after the newly appointed executor of Gabriele's will — 1st Source Bank — filed an emergency petition requesting the liquidation.

According to the petition, bank administrators have completed an inventory of the Gabriele estate, finding that the doctor's assets are worth a total of $2.8 million.

Despite the substantial value, the petition says not enough liquidity exists to pay current administration expenses including:

"The ordinary expenses associated with the wind down of the business and both appraising and preserving the Estate assets, and the expenses of defending for the benefit of the Estate, the federal case pending against Gabriele Eye Institute."

The criminal case against the company that was owned by Gabriele and his wife Marcella, The Gabriele Eye Institute, is set to go forward Oct. 20 despite the absence of its owners.

Philip and Marcella Gabriele were found dead in an apparent murder-suicide in June just hours before they were to appear before a judge on a 15-count criminal indictment involving health care fraud.

Shortly after their deaths, Marcella's brother, Jon Alex Dawson, filed a lawsuit alleging that Philip Gabriele's will — which does not include his wife's name — was improperly executed and the doctor was under "undue influence" when he penned the document.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Law - David J. Allen, 74, Attorney and Counselor to Governors, dies

When I first met Dave Allen, he was counsel to Governor Roger D. Branigin, and seemed very old and wise, although it turns out he was about 30 at the time. He had just written a handbook, titled "New Governor in Indiana: The Challenges of Executive Power." In the preface, Dave describes it as "a practical handbook designed to serve as a ready reference for a new Governor and his staff." I just pulled out my copy, I'd love to post it online, but it is copyrighted by Indiana University. Through the years, Dave remained a wise counselor to those he served, governors and political leaders. The Indianapolis Star obituary is available here.

Posted by Marcia Oddi on Tuesday, October 06, 2009
Posted to Indiana Law

Monday, October 05, 2009

Ind. Courts - "Governor Appoints New Madison Circuit Court Judge"

Joe Ulery reports for WIBC:

Governor Mitch Daniels has appointed a new judge to replace a Madison County judge who resigned amid an ethics investigation.

39-year-old Rudolph Pyle III is beginning his first week at his new job as Circuit Court Judge.

Pyle had been deputy prosecutor in Madison County since 2002. He also used to be an Indiana State Trooper.

Pyle, a Republican, replaces 71-year-old Fredrick Spencer, who had been judge for 26 years.

Spencer resigned last month after claims that he decided a murder suspect's sentence before the end of the case.

Pyle will finish out Spencer's term, which expires at the end of next year.

Posted by Marcia Oddi on Monday, October 05, 2009
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 2, 2009

Here is the Clerk's transfer list for the week ending October 2, 2009. It is six pages long.

Four transfers was granted last week:

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, October 05, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Adoption of E.L.; R.J. v. V.N. , a 13-page opinion, Judge Robb writes:

R.J., the putative father of E.L., filed a paternity petition on his own behalf and on behalf of E.L. to establish his paternity of E.L. The trial court, after consolidating the paternity petition with a pending adoption matter, dismissed the paternity petition. R.J. appeals and raises two issues, which we consolidate and restate as whether the trial court properly dismissed the paternity petition. Concluding dismissal was proper with respect to co-petitioner R.J. but improper with respect to co-petitioner E.L., we affirm in part, reverse in part, and remand. * * *

We acknowledge the apparent anomaly that a putative father barred by one statutory section from petitioning for paternity on his own behalf may nevertheless succeed in filing, under a different statutory section, substantially the same petition as next friend on behalf of the child. Yet where two statutes appear inconsistent in some respect, we must give effect to both if possible. B.W., 908 N.E.2d at 592. Moreover, the general assembly, when revising the adoption and paternity statutes in 1997, did not alter the provision allowing a child to petition for paternity by next friend, but instead recodified it. Compare Ind. Code § 31-6-6.1-2(a)(4) (1996), with Ind. Code § 31-14-5-2 (1997). The general assembly did so notwithstanding the line of cases that, since 1992 when we decided G.D.H., 599 N.E.2d 237, have permitted a parent barred from petitioning for paternity on his or her own behalf to file a paternity petition as next friend on behalf of the child. See id. at 241. We see no reason, therefore, to depart from these precedents.

Conclusion. The trial court properly dismissed the paternity petition as filed by R.J. on his own behalf but erred in dismissing the petition as filed on behalf of E.L. The trial court’s dismissal is affirmed with respect to co-petitioner R.J. and reversed with respect to co-petitioner E.L., and the case is remanded for further proceedings consistent with this opinion.

Andrew Prairie v. State of Indiana - "Andrew G. Prairie appeals his conviction of Identity Deception, a class D felony, presenting the following restated issue for review: Did the trial court abuse its discretion in admitting evidence pursuant to Indiana Evidence Rule 404(b)? We affirm."

Jeffrey Phelps v. State of Indiana - "Based on the foregoing, we conclude that the trial court's determination that Phelps is a sexually violent predator is not supported by sufficient evidence; Phelps waived his claim of error caused by the State's cross-examination of his statement at sentencing, and the trial court abused its discretion when sentencing Phelps. Additionally, we conclude that Phelps' sentence is inappropriate when considering the nature of his offenses and his character, and we revise his sentence so that he serves an aggregate sentence of four years in the Department of Correction."

NFP civil opinions today (1):

Estate of Nathaniel Kappel v. William Kappel, Judith Kappel, and Mark Kappel (NFP) - "Construing the designated evidentiary material in the light most favorable to the Estate, we conclude that there remain genuine issues of material fact as to the entitlement of the proceeds of the State Life policy. As set forth above in detail, there are numerous facts in dispute and the undisputed material facts are capable of supporting conflicting inferences with regard to the issue of who is entitled to the proceeds of the State Life policy. We therefore conclude that the trial court erred in granting summary judgment in favor of William and Mark."

NFP criminal opinions today (4):

Gary M. Thompson v. State of Indiana (NFP)

Steven M. Johnson v. State of Indiana (NFP)

Nicholas Liss v. State of Indiana (NFP)

Ronald Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 05, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Supreme Court's call for amicus briefs in sentencing case answered

Updating this Sept. 24th ILB entry re the Supreme Court's call for amicus briefs in the case of Anthony Malenchik v. State relating to the use of "scoring models," where amicus briefs of the Indiana State Bar Ass'n, the Public Defender of Indiana, and the Indiana Judicial Center were posted, the ILB has now obtained and posted copies of two additional amicus briefs, plus the supplemental briefs of the parties:

Posted by Marcia Oddi on Monday, October 05, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - State lets billboard inventory slide, may lose federal funds

A long story on this by Jon Seidel today in the Gary Post-Tribune. Here are a a few quotes:

[T]he Indiana Department of Transportation's central office in Indianapolis has records of just 75 billboards along the interstates running through Lake and Porter counties. That's less than one billboard per interstate mile.

INDOT says there are 12 permits for billboards along Interstate 65 in Lake County, for example, but a Post-Tribune count found more than 60 along the same route.

The state's lack of an up-to-date billboard inventory might have let myriad outdoor advertising problems develop over several years or even decades.

Those issues were highlighted in an unflattering Federal Highway Administration report in 2008. The agency threatened to withhold $90 million from Indiana under a provision of the Highway Beautification Act because of the state's perceived lack of billboard control.

Now, in addition to addressing the Federal Highway Administration's concerns, an INDOT official is trying to figure out how to update the billboard inventory to prevent further trouble. It could cost more than $2.5 million, though, and it isn't clear where that money will come from.

"Had an active inventory been in place," the Federal Highway Administration wrote, "many of the issues discussed in this report may have been avoided." * * *

Robert Demuth, INDOT's central office permit manager who joined the agency last year, said the blame for Indiana's billboard mess can't be placed at any one doorstep.

"There's no smoking gun, no one person, no one party, no one agency, no one group of outdoor advertisers," Demuth said.

Instead of pointing fingers, Demuth said he is focused on complying with the Federal Highway Administration's recommendations. That could mean the removal of some billboards across the state. The cost of that work will depend on each individual situation.

Demuth is also trying to figure out how to pay for a one-time, comprehensive inventory of Indiana's billboards to prevent future problems. That project would do more than give the state a count of its billboards. It would provide a detailed record of what exists where, and whether it conforms to federal and state standards.

"If we don't get our hands on what the good inventory is," Demuth said, "we will not regain effective control. It's so key."

Posted by Marcia Oddi on Monday, October 05, 2009
Posted to Indiana Government

Ind. Law - "Parks off limits to sex offenders"

Rebecca S. Green of the Fort Wayne Journal Gazette has an overview today on ordinances banning sex offenders from parks:

There are seven public parks in the city of Garrett and just about that many registered sex offenders living in the small DeKalb County city.

And to Police Chief Rex Harpel’s knowledge, there has never been any trouble with sex offenders in those city parks, but as of August, they are no longer welcome in the parks.

In fact, they will be fined $100 the first time they are caught inside the parks and $200 on subsequent offenses, according to the ordinance passed this past summer.

“I don’t anticipate having any problems with it,” Harpel said.

It was time to redo the park ordinance for the city, population 5,681 in 2008, such as setting closing times and banning smoking. Harpel said he wanted to get the sex offender ban in there.

“We want the parks to be enjoyable for everybody,” he said.

Garrett’s is not the only ordinance of its kind in Indiana, though it may be somewhat unusual in the area. And the bans have survived legal challenges to their constitutionality. * * *

Indiana University law professor Craig Bradley said there is no question the state can, by law, place additional limitations on sex offenders listed on the state’s registry, maintained by the Indiana Criminal Justice Institute.

Whether cities and towns can do it is another question, he said.

“Whether municipalities can do it raises issues of deprivations of liberty,” Bradley said.

The state can make additional limitations because it is the state that establishes punishments for crimes, such as prison time and the registry, he said.

Keeping someone from entering a public park could be included in that, all rolled up as a punishment, he said.

Bradley has problems with municipalities doing it because it is not their role in the government, though they can justify such bans under the umbrella of controlling their own parks and deciding who can come and go and when.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, said the issue is whether the ban is intended as a form of punishment.

In one legal challenge heard by the Indiana Court of Appeals, the city of Plainfield’s ordinance was held up as constitutional.

The court ruled that while the ordinance was certainly restrictive, it was related to the non-punishment goal of promoting public safety.

Falk appealed that ruling to the Indiana Supreme Court, which declined to hear the case this summer.

In another case, this one challenging the city of Jeffersonville’s ordinance, a part of the law was struck down because the challenge came from a convicted sex offender no longer required to register.

In that case, the appellate court ruled that while the bans have been found to be constitutional, to apply them to people who are no longer required to register – even though their name appears as part of the record forever – is punishment after the fact.

Falk again represented the sex offender in that case, though this time it was the city that challenged the appellate court’s ruling and asked the Indiana Supreme Court to review.

Again the state’s highest court declined.

And with no ruling by the Supreme Court in either case, Falk said the state is left with something less than a definitive position on the bans.

The appellate court’s ruling said in the Plainfield case said the bans are constitutional. But, Falk said, in the Jeffersonville case the court said the bans are unconstitutional when applied to those who no longer have to register.

He wonders whether Garrett’s ordinance may be unconstitutional because of its wording, applying to “individuals listed on the (sex offender registry).”

If it is applied to someone who is no longer required by law to register, but whose name still appears on the list, then it could be found unconstitutional, Falk said.

Posted by Marcia Oddi on Monday, October 05, 2009
Posted to Indiana Law

Courts - If possible, SCOTUS Blog gets even better

SCOTUSblog, which unofficially fills the role of "the law blog of record for the Supreme Court", had this post yesterday about its changes to mark the start of the new Term.

Its "Monday Round-up" today is a must-read, as is this argument calendar for the week ahead.

Posted by Marcia Oddi on Monday, October 05, 2009
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/5/09):

Thursday, October 8th

Next week's oral arguments before the Supreme Court (week of 10/12/09):

Next Thursday, October 15th

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 10/5/09):

Monday, October 5th

Tuesday, October 6th

Wednesday, October 7th

Next week's oral arguments before the Court of Appeals (week of 10/12/09):

Next Tuesday, October 13th

Next Wednesday, October 14th

The past COA webcasts which have been webcast are accessible here, via the calendars

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, October 05, 2009
Posted to Upcoming Oral Arguments

Sunday, October 04, 2009

Law - "A Smarter (and Cost-Efficient) Way to Fight Crime"

In the "Economic View" column today in the NY Times, Robert H. Frank's article begins:

LAW enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs.

This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

Mark Kleiman, a professor of public policy at the University of California, Los Angeles, says there is a better way. In a new book, “When Brute Force Fails”, he argues that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly.

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to General Law Related

Courts - "Six Supreme Court justices, VP attend Red Mass"

USA Today has posted this AP story that begins:

WASHINGTON (AP) — An American cardinal on Sunday issued a plea for the rights of the unborn at a church service that included Vice President Joe Biden, six members of the Supreme Court and hundreds of members of the legal community.

Five of the six Roman Catholics on the high court — Chief Justice John Roberts and Justices Sonia Sotomayor, Antonin Scalia, Anthony Kennedy and Samuel Alito— heard the homily by Cardinal Daniel DiNardo; the sixth, Justice Clarence Thomas, did not attend. Justice Stephen Breyer, who is Jewish, was there as well.

Speaking at the annual Red Mass the day before the opening of the Supreme Court term, DiNardo said that people represented by lawyers are "more than clients. ... In some cases the clients are voiceless for they lack influence; in others they are literally voiceless, not yet with tongues and even without names, and require our most careful attention and radical support."

As DiNardo spoke, protesters opposed to abortion demonstrated in front of the church.

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Courts in general

Law - Donna Shalala says she is not interested in the top NCCA post

My candidate for NCCA President, Donna Shalala, makes a pretty good case that she is not interested, in this story today in the NY Times, headed "A Call to Change the N.C.A.A.’s Direction." Some quotes:

The death of Myles Brand last month silenced a strong voice of academic reform in intercollegiate athletics. It also created a void and myriad questions about the direction of the N.C.A.A., which he served as its president for the past six years.

The University of Georgia president, Michael Adams, top, and Tulane’s president, Scott Cowen, have been mentioned as possible candidates to be the N.C.A.A. president.

The N.C.A.A. faces ethical challenges like raging commercialism and escalating salaries for star coaches, and the subsequent tension between athletics and academia. And it must decide whether to recommit to Title IX, and roll back the length of playing seasons, especially in so-called minor sports.

“We have to do what Obama’s trying to do in health care reform,” Donna Shalala, the University of Miami president, said during a recent interview.

In fact, the task of reforming the N.C.A.A. bureaucracy, with all of its vested interests, may be more daunting than reforming health care because the emotions of alumni and boosters are involved. * * *

[Scott Cowen, the Tulane University president] has been mentioned as a possible successor to Brand, as have [Mary Sue Coleman, the University of Michigan president], Shalala and Michael Adams, the University of Georgia president. During separate phone interviews, each denied any interest in the position, now held on an interim basis by Jim Isch, an N.C.A.A. senior vice president.

“I am deeply engaged at the University of Michigan,” Coleman said.

Shalala said: “At the end of the day, the reason I’m in higher education is because I love the kids. Helping the kids from a distance is not what I want to do. I want to walk across campus, I want to teach a class. It’s just not me.”

Adams said: “I love the University of Georgia. It’s where I fit best. I feel pretty strongly this is where I’ll be.”

Cowen said, “I don’t have the temperament for that job.”

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to General Law Related

Ind. Law - More on "Requests for retroactive property tax exemptions threaten county budgets"

Yesterday the ILB posted this comprehensive entry, linking to all past entries on the impact of the retroactive property tax exemption said to apply to for-profit nursing homes.

The Fort Wayne Journal Gazette has an editorial today on the provision, headed "Lawmakers’ unintended consequence."

A combination of under-the-radar court decisions and unintended consequences of this year’s budget bill is turning into a multibillion-dollar headache for a number of Indiana counties.

As Amanda Iacone’s story on Wednesday explained, a number of for-profit nursing homes and hospitals are seeking exemption from property taxes, and an obscure section of this year’s budget bill allows owners of land used for charitable purposes to seek refunds going back a decade. In a worst-case scenario, if applications from all the owners for 700 Allen County parcels of land seeking the 10-year refund are granted, the county would lose $1.5 billion in assessed value for land and equipment and owe an estimated $30 million in refunds for current and back taxes.

Here’s why:

In Indiana, non-profit entities such as churches and social service organizations do not have to pay property taxes. Their property values are assessed, but the owners can seek exemptions.

Over the past few years, the Indiana Tax Court has issued opinions that have ruled nursing homes – even those that are owned by for-profit companies – provide a charitable service and are therefore eligible for property tax exemption.

“I don’t think anybody paid attention” to those cases, said Pete Mallers, a Fort Wayne attorney who represents a number of clients around the state seeking the refunds.

Some lawmaker – it isn’t clear who – slipped language in this year’s budget bill apparently intended to give a break to a single non-profit, not necessarily a nursing home, that had failed to file for its exemption over the years. The law extended the deadline for filing the exemption and also allowed eligible property owners who hadn’t filed in the past to receive refunds going back to 2000. But the way the bill is written, it could arguably apply to any property owner who provides a charitable service and has paid property taxes over the years.

“This was just something that came out of the blue,” Mallers said of this year’s language.

So the Property Tax Assessment Boards of Appeals in a number of Indiana counties are faced with weighing the requests to be exempted from property taxes and receive retroactive refunds.

Allen County Assessor Stacey O’Day believes the worst-case scenario will be avoided. “I think the law will need to be clarified,” she said. Still, she noted, “we will be spending many, many hours” defending the previous assessments, and the county will have to pay lawyers to research and challenge the appeals. This comes at a time when assessors must essentially conduct annual assessments of all properties and struggle to meet state-imposed deadlines.

Hoosiers should remember that the Indiana General Assembly failed to pass a budget on time – its only responsibility required by law. Indiana lawmakers routinely pass budgets on short notice. Ten years ago, powerful Democratic state Rep. Pat Bauer, now speaker of the House, quietly inserted language into a measure aimed at cutting the inventory tax. Most lawmakers didn’t learn until weeks later they had also passed a big tax cut for owners of mobile homes and RVs.

The issue involving the charitable property tax exemptions should serve as a haunting reminder that the legislature must vet the language and study the ramifications of the laws they adopt.

Clearly, soon after they convene in January, lawmakers will need to clarify exactly which properties are entitled to property tax exemptions.

Some thoughts from the ILB: It is hard for me to believe these were "unintended consequences" for all. The language buried in the budget opened a two-month window for entities to get their exemption applications in. The window closed on August 31st. Somehow, the word spread to for-profit entities around the state and many hundreds of retroactive exemption applications were filed before the deadline. Meanwhile, it was late September before the impact began to dawn on legislators, according to this quote:
A Logansport lawmaker says he doesn’t believe an amendment to this year’s state budget opened the door to tax refunds for nursing homes across the state.

State Rep. Rich McClain says the exemption applies only to those entities that are indeed not-for-profit organizations. The for-profit language in the amendment, he said, applies only to those nonprofit organizations that failed to file for their nonprofit status on time.

McClain said he researched the details of the bill with a staff member in the House Ways and Means Committee after hearing from constituents who were concerned by reports out of last week’s meeting of the Cass County Council.

Re "vetting the language" before acting, the above quote shows that even after-the-fact, the potential implications of the wording were not readily discernible. As a reader noted to me, the provision is written in "legislativese."

The problem, and the key to answer, lies in reformation of the now traditional so-called "budget bill" which mashes together into one impenetrable document provisions on every conceivable topic, and is put before each house on an up-or-down vote at the late minute, then presented to the governor on a "take it or leave it" basis. It may be weeks or months later before all the "surprises" turn up.

This is but the latest of a long list of budget bill surprises. For more from this year, see this collection of ILB entries, beginning on August 10th. Most are headed "Apparently there are all sorts of surprises in the special session budget."

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Indiana Law

Courts - More on "Astor Trial (Finally!) Heads to the Jury"

That was the headline to this entry from Sept. 22nd. Nearly 10 days, last Friday, Oct. 1, John Eligon of the NY Times had this article that began:

The buzzer rang at 4:50 p.m. Thursday, and John R. Cuti, a defense lawyer in the Astor trial, furrowed his brows. He glared at his wristwatch, then at a clock in the back of the courtroom.

Had the jurors reached a verdict?


They were simply alerting the court officers that they wanted to go home for the night.

After months of testimony that was at times tedious and at times shocking, perhaps the most psychologically grueling part of the trial is now in full swing: the waiting.

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Courts in general

Ind. Gov't. - Harold Holzer and the closed Lincoln Museum

The ILB has a number of entries on the closing of the Lincoln Museum in Fort Wayne and the eventual decision to split the collection between the Fort Wayne library and the State Museum in Indianapolis. ("Other known suitors included the Abraham Lincoln Presidential Library and Museum in Springfield, Ill.; the Library of Congress; the Smithsonian Institution’s National Museum of American History; Ford’s Theatre; and President Lincoln’s Cottage.")

Renowned Lincoln scholar Harold Holzer was in Fort Wayne Thursday and, per the Journal Gazette, "spoke with editorial writer Stacey Stumpf about the Lincoln Museum and his current Lincoln project. Here are excerpts of the interview:"

What do you think about the decisions the Lincoln Foundation made about where to house artifacts from the closed Lincoln Museum?

It’s sort of a good news-bad news result. My preference as a visitor, as a historian who used that museum for 30 years, is that I wish everything would have stayed the same.

It was convenient. It was inspiring. It was a very rich museum. It was sort of incomparable in many ways. And the people were fantastic. They were great to visitors, and they were great to scholars, and that’s the best combination.

How it was decided? I find it mysterious. I don’t know what it was all about. Was there a real national search for a home? Was it always going to stay in Indiana?

I guess the result is good for Indiana because it’s in Indianapolis and in the Allen County (Library) museum.

2 How does the museum closure affect your research?

On the research side it remains to be seen. I’ve spoken to some of my old contacts at the museum who tell me that at some point it will be welcoming and accessible and, even more, it will be digitized and reproducible. And that will be a great service.

I’m not sure it couldn’t have been done in its original home, but that will be good. But the thing we will be missing and cannot be replaced digitally – I don’t think you can replace reality with digital reality.

Mr. Holzer seems to have carefully measured his words.

My question, particularly given the story this morning about the condition of the State Archives building -- where are the priceless Lincoln artifacts to be housed?

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Indiana Government

Ind. Courts - More on the Delaware County Prosecutor Mark McKinney issues

The ILB has had many entries on the controversies involving Delaware County Prosecutor Mark McKinney. Today the Muncie Star-Press has an online "teaser" -- but the story itself is a "print exclusive," meaning that unless you buy of copy of today's paper, this headline "McKinney presents 'appearance of evil?'" to this brief story will leave you in the dark:

Did Mark McKinney’s double-duty as a Delaware County prosecutor and civil attorney for the city-county Drug Task Force’s efforts to seize assets of local drug defendants have “the appearance of evil?”

McKinney — who is facing disciplinary action from the Indiana Supreme Court over his dual role — scoffs at the idea and notes that a special prosecutor has cleared him of any criminal wrongdoing.

But a noted Hoosier law expert says that McKinney’s actions, even if they were not illegal, could pose an ethical problem for the embattled attorney.

For more on this story see today's print edition of The Star Press.

Perhaps it would have been better for the paper to put nothing online, rather than to leave the paper's own characterization hanging?

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Indiana Courts

Courts - "U.S. attorney vacancy no laughing matter: Lawyer’s cartoons don’t help him"

Andrew Wolfson of the Louisville Courier Journal reports today in a story that begins:

Want to be a U.S. attorney in Kentucky? Then you might not want to draw cartoons making fun of the state's senior U.S. senator.

Marc Murphy, a former commonwealth's attorney who is a freelance cartoonist for The Courier-Journal, says he learned that the hard way.

The newspaper reported in January that Murphy was one of six lawyers who talked to U.S. Rep. John Yarmuth, D-3rd District, about getting the appointment as top federal prosecutor in the Western District of Kentucky.

But Murphy, a Democrat, said Yarmuth later told him that when he consulted with Republican Sen. Mitch McConnell about his possible recommendations for the job, McConnell replied: “You're not going to recommend that guy who draws those cartoons of me, are you?”

Murphy said Yarmuth told him that he laughed at McConnell's comment, but McConnell didn't laugh back.

Here is a sample - the story includes several more.

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Courts in general

Ind. Gov't. - "Indiana plan would pull WorkOne staff from Elkhart libraries"

Back in January of this year the ILB had a number of entries under the heading "Libraries are overwhelmed by unemployed filing for help." How is that working out? Here is an AP report in the South Bend Tribune that begins:

ELKHART (AP) — A state Workforce Development plan to stop staffing Elkhart libraries on Sundays and Mondays to help jobless workers with unemployment claims has angered library and public officials, who say the state should be doing more to help workers in the county with the state's highest unemployment rate.

The library branches have become a key resource for laid-off workers, especially on Sundays, when many workers use library computers to file claims.

Marc Lotter, a spokesman for the Department of Workforce Development, said the agency was reviewing its resources and shifting them to where demand was the highest.

He said the state urges laid-off workers to go to WorkOne offices to get help with resume writing, interviewing skills and basic computer training.

"WorkOne Centers are not unemployment offices," Lotter said. "They are employment offices."

But state Rep. Jackie Walorski, R-Elkhart, said the resources need to be available where the laid-off workers are instead of trying to "railroad people" into the WorkOne offices.

Connie Jo Ozinga, director of the Elkhart Public Library, said the Pierre Moran branch has recorded heavy traffic on Sundays since July 2008. The branch has been opening an hour earlier and has switched all its computers to the DWD system to accommodate the workers, she said.

"We're trying really hard to provide the best library service that we can," Ozinga said. "These people are part of our clientele. We're doing our best but feel like we're failing because we have so little space and computers."

The state has agreed to keep a WorkOne employee at the Pierre Moran branch on Sundays but will pull its employees from the Dunlap and downtown branches.

From a side-bar:
Libraries are feeling the effect of high unemployment rates in Elkhart County. To avoid the crowds at WorkOne locations, more people are heading to the library to file for unemployment. As a result, smaller library branches like Pierre Moran have set up special workstations and waiting areas just for those seeking to access the Workforce Development Web site. But the state of Indiana is looking at stopping the practice in Elkhart libraries.

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Indiana Government

Ind. Gov't. - State archives still waiting for new roof

In 2005 I wrote an article for Res Gestae titled "Indiana appellate court records – how accessible?" From p. 4:

Skipping backward to the earliest Indiana court records, 18th and 19th century order books, docket books, pleadings and briefs are stored in State Archives. This agency, with funding provided by the Supreme Court, is currently engaged in a push to open up Indiana court records from 1817-1868. But it will be very slow going.

I took a trip out to Public Records and State Archives, located in the east side of Indianapolis, in October [2005], and was given a guided tour though the temperature and humidity controlled vault where these early records are kept. * * *

Each of these 1817-1868 cases is folded up in thirds, like a will or similar document may be folded today. At some point in history the case records were wrapped in kraft-type paper and boxed in narrow file boxes. Most have remained undisturbed for more than a century. There are 12,522 of these cases. * * *

After the 1817-1868 cases have been processed, there are bankers boxes of the 1869-1900 records. These records may include the trial transcript. Then, on to the 20th century, where there are the 52 skids of uncataloged court records.

State Archives has only six people on its staff. I’m told their active volunteer programs are what keeps them going. Archives is hoping that Indiana lawyers will volunteer to help with the Stage 2 processing of the 1817-1868 records.

What I remember most about the archives is that they are located in a gigantic warehouse building, housing seeming acres of metal shelving, and that everything was sheathed in plastic sheets, the kind painters use. Why? Because of severe leaks through the much-repaired flat roof of the old RCA building. Employees were very concerned about the continuing leaks, and were hopeful something permanent would be done soon by the powers that be.

That was four years ago. Today the Indianapolis Star has this story by Will Higgins, titled "Archives are at the mercy of nature: So far, efforts to provide rainproof way to store state's treasures have come up dry." Some quotes:

Indiana's state archives, original and irreplaceable paperwork documenting the people's business since before statehood, got rained on a few weeks ago -- for the third time this year.

A fourth time seems inevitable.

Among the most treasured documents are the state constitution; the earliest state Supreme Court cases; John Dillinger's prison records; and the contract, from 1964, between the Indiana State Fair Board and the Beatles.

The building that houses them, built nearly four decades ago by RCA as a warehouse for eight-track tapes, has a leaky roof. And while Indiana's Department of Administration has scheduled some patch-up work in the coming days, people familiar with the building say the roof surely will leak again -- as it has for the past decade, despite repeated repairs.

The recent soaking -- 30 boxes of House and Senate bills from the 1960s -- was discovered promptly, and the documents were dried out and saved. They've been returned to their shelves and covered by sheets of clear plastic.

There is no other help in sight. The Department of Administration hoped to put a new roof on the building this year and included in its budget $2.4 million for that purpose.

But Gov. Mitch Daniels killed that plan. "In December 2008, we got a revenue forecast that showed we had a three-quarters-of-a-billion-dollar hole in our budget," said the governor's spokeswoman, Jane Jankowski. "Beginning right then and there, we had to make a lot of decisions about what we could and couldn't spend." * * *

Budgets to store and maintain historical documents vary widely from state to state, because some archivists are responsible for every county's documents while others are primarily concerned with state business. Iowa's budget was $434,000, according to the CSA's study; Washington state's was $10 million.

Indiana's building, said Jerry Handfield, Washington state's archivist and a board member of the National Historical Publications and Records Commission, is "an accident waiting to happen."

He speaks with authority -- he has visited half the states' archives and, in the 1990s, was Indiana's archivist.

The old eight-track repository, on East 30th Street, initially was intended as temporary quarters. The archives needed to be cleared out of the basement of the State Library, where they'd been since 1932, because the basement was being remodeled.

That was in 2001.

Leaks aren't the only worry, said Pierce, who notes that several tornadoes have touched down near the building. The way he sees it, "we're at a point now where we're one day closer to a disaster."

[Matt Pierce, D-Bloomington] said he plans to bring up the issue again in the next legislative session.

Posted by Marcia Oddi on Sunday, October 04, 2009
Posted to Indiana Government

Saturday, October 03, 2009

Ind. Gov't. - Amicus brief authored by Indiana filed in Hemi Group, LLC v. City of New York

On August 7th, the ILB's entry headed "Who should decide Indiana's position on national legal issues? Who should know?" , announced that the AG's office had made information available enabling preparation of a Table titled AG Zoeller Amicus Briefs 2009.

Yesterday, Bryan Corbin, Public Information Officer to the AG, sent out this note to the press:

Several of you have asked to be notified whenever the Indiana Attorney General files an amicus brief in a cert petition to the U.S. Supreme Court.

Indiana recently filed an amicus brief (see below) signed by 19 other states on behalf of the respondent, New York, in a case involving the use of federal racketeering laws.

Our friend-of-the-court brief, authored by Indiana Solicitor General Tom Fisher, explains the Attorney General's use of the federal civil RICO statute in our successful litigation against 27 defendants in the East Chicago "sidewalks for votes" case. The two main defendants, former East Chicago Mayor Robert Pastrick and former mayoral aide James Fife III, were found in default on every count the state alleged. The federal judge has not awarded damages yet but has damages and a legal remedy under advisement. Our previous news release about the default finding is attached also.

In requesting the Supreme Court hear the New York case, Solicitor General Fisher's brief explains how our use of the federal civil RICO statute relates to New York's.

Here is the AG's webpage on the East Chicago RICO case.

Here is Indiana's amicus brief in Hemi Group, LLC v. City of New York, dated Sept. 23, 2009, posted by the ILB. Note that the case is the first listed in the 2009 Amicus Briefs Table.

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to Indiana Government

Courts - More on: C-SPAN to focus on Supreme Court this week

Updating this ILB entry from yesterday, Hank Stuever of the Washington Post has reviewed the upcoming C-SPAN series. Some quotes:

There are people in Washington (and beyond) whose fascination with the Supreme Court is like a mild case of Beatlemania. They comb through the court's opinions with gusto; they know where certain justices like to eat lunch out; they've read the heaps of books that all promise some clearer insight into the personalities and minds that form the clandestine nine.

They also probably know it's Supreme Court Week on C-SPAN (not to be confused with Shark Week!), timed to the court's reconvening Monday and beginning with an unprecedented and surprisingly moving documentary Sunday night. * * *

In the still more off-limits rooms where the justices meet to consider and then render opinions, we learn how Chief Justice John Roberts assigns writing duties, and we hear Justice Antonin Scalia's thoughts on whether arguments from attorneys ever really influence his opinion ("It's probably quite rare, although not unheard of," he says) and, from Justice John Paul Stevens, we learn that in the afternoon, coffee is delivered with "a sweet roll or a cookie or something."

Bland and thrilling, all at once. Just another day from on high.

""Supreme Decision," an online game designed to teach schoolchildren about the judicial branch, is the subject of this Washington Post story by Kashmir Hill and David Lat. (David Lat is the founding editor and Kashmir Hill is the associate editor of Above the Law, a legal blog.)

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to Courts in general

Law - "Options for Managing Law School Student Loan Debt"

Available here, via Law.com.

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to General Law Related

Law - "The Lilly Ledbetter Fair Pay Act of 2009: A Preliminary Report"

FindLaw.com columnists and law professors Joanna Grossman and Deborah Brake have written a three-part article on the Lilly Ledbetter Act. Part I and Part II are now available.

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to General Law Related

Courts - "The Propriety of Criticizing Judges"

"The Propriety of Criticizing Judges," a lengthy article by Joel Cohen and Katherine A. Helm, prepared as a special to Law.com, is dated Oct. 5th. A few quotes:

So when is an attorney subject to professional disciple for speaking his or her mind about a judge's conduct or decisions? What are the limits on a lawyer's free speech rights when it comes to -- let's say it like it is -- bad-mouthing judges, which any lawyer has to admit that he's done at some time in his career, if he's had any courtroom experience to speak of?

It is flatly against policy for a lawyer to openly decry a sitting judge. More staunchly, ethics rules and case law inform us that professional misconduct charges can be levied when an attorney makes false or reckless accusations against a presiding judge to the press, when the lawyer's remarks create a substantial likelihood of materially prejudicing an adjudicative proceeding, or when the attorney's conduct is otherwise unbecoming a member of the bar. See, e.g., ABA Model Rules of Professional Conduct 8.2(a); In re Palmisano, 70 F.3d 483 (7th Cir. 1995); In re Snyder, 472 U.S. 634 (1985); U.S.D.C. v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993) (noting a lawyer "does not surrender his freedom of expression" upon admission to the bar, but "he must temper his criticisms in accordance with professional standards of conduct.").

Famed civil rights attorney William Kunstler was subject to disciplinary charges by the New York State Bar after exclaiming to the justice presiding over the Central Park jogger rape trial that the justice had exhibited his partisanship, that he "should not be sitting in court," and that he was "a disgrace to the bench." See Kunstler v. Gilligan, 571 N.Y.S.2d 930 (App. Div. 1991), aff'd, 579 N.Y.S.2d 648 (N.Y. 1991). * * *

A recent New York Times article addressed the issue of lawyers criticizing judges and the legal profession in the context of social media tools. It discussed the tension between being an officer of the court with limited ability to criticize the court and the loss of personal privacy, and maybe even appropriate discretion, that occurs through the use of online communication tools. But the real issue is not just about how lawyers are constrained by professional codes of conduct from fully expressing themselves online. That's just the medium. The seminal question is an age-old one that concerns the extent to which lawyers' discourse about the profession and individuals therein should be constrained, period.

The belief is often bandied about that lawyers should refrain from pettifogging criticisms or other contempt in the face of the court, to avoid undermining public faith in the legal system. That said, lawyers are not soldiers atop the courts' ramparts, defending and protecting the judiciary's inner sanctum. Lawyers represent their clients. Judges can generally fend for themselves, even though their own ethical canons bar them from making public comments or rebukes on pending matters. Nonetheless, few judges are milquetoast creatures deserving of kid-glove handling. Not to say that judicial proceedings shouldn't have dignity and decorum, but isn't a respectful attitude toward the court best exemplified not by blind allegiance to its practices but rather by assisting to uphold the honor of the legal profession by calling a spade a spade when a judge does something significantly deserving of condemnation and critique? * * *

The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose intemperate statements are not aimed at improving the legal system per se. Unfortunately, the latter type is far more common, if only because courtrooms tend to be filled with trial lawyers who are, as Carly Simon would say, the types to have "walked into the party like they were walking onto a yacht" (and yes, they probably think this article is about them too). No wimpy civility, to put it mildly, from these blowhards. But our point is: The alternative is less desirable and far more dangerous -- our legal system cannot sustain itself with a world full of lawyers with Laodicean attitudes toward judicial integrity.

Now is the right time to have this discussion -- this is the age of transparency.

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to Courts in general

Environment - "Study reports Indiana Dunes National Lakeshore threatened by climate change"

The Chesterton Tribune reported yesterday that:

Indiana Dunes National Lakeshore is one of 25 national parks identified as being most threatened by climate change in a study conducted jointly by the Natural Resources Defense Council and the Rocky Mountain Climate Organization.

The study, released on Thursday, characterizes the National Lakeshore as “vulnerable to a loss of ice and snow, a loss of water, more downpours and floods, a loss of plant communities, a loss of wildlife, more crowding, a loss of fishing, and more air pollution”: all the consequences of climate change caused by “human activities” resulting in “the emission of heat-trapping gases.”

The story continues with specifics of the impact on the Dunes, such as:
“With a changed climate, more precipitation comes in downpours,” the study states. “The amount of rain falling in heavy storms increased by 20 percent over the past century, while there has been little change in the amount from light and moderate storms. . . . With an increase in downpours, flooding is also likely to increase. Virtually all national parks in Indiana and elsewhere are at risk.”
For the Report itself, start here with a map showing the "25 national parks most at risk as human activities continue to change the climate."

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to Environment

Law - "Texas Battle on Gay Marriage Looms" and "The High Price of Being a Gay Couple"

James C. McKiney Jr. reports today in the NY Times:

HOUSTON — A judge in Texas paved the way for a court battle over the state’s ban on same-sex marriage when she ruled this week that two men married in another state can get divorced in Dallas.

The state attorney general said Friday that he would appeal the decision, even as gay rights advocates applauded the judge, Tena Callahan of Family District Court, for declaring that the state’s four-year-old ban on same-sex marriages and civil unions violated the right to equal protection under the 14th Amendment.

The case highlights a subtle way gay men and lesbians often face complications when it comes to marriage: gay couples who have managed to marry in the few states where it is legal have trouble divorcing and dividing their property if they move to a state where it is not.

In the last two years, courts in Indiana, Oklahoma and Rhode Island, for instance, have denied divorces to same-sex couples who had been married in other jurisdictions. All three have laws against gay nuptials. Courts in a few other states, notably New York and New Jersey, have allowed divorces to go forward for gay men and lesbians married in other states, even though they do not allow same-sex marriages.

The ILB has had a long list of entries referencing same sex divorce issues.

A second NY Times story today, this one reported by Tara Siegel Bernard and Ron Lieber, is headed "The High Price of Being a Gay Couple." The story begins:

Much of the debate over legalizing gay marriage has focused on God and Scripture, the Constitution and equal protection.

But we see the world through the prism of money. And for years, we’ve heard from gay couples about all the extra health, legal and other costs they bear. So we set out to determine what they were and to come up with a round number — a couple’s lifetime cost of being gay.

It was much more complicated than we initially imagined, and that’s probably why we’ve never seen similar efforts. We looked at benefits that routinely go to married heterosexual couples but not to gay couples, like certain Social Security payments. We plotted out the cost of health insurance for couples whose employers don’t offer it to domestic partners. Even tax preparation can cost more, since gay couples have to file two sets of returns. Still, many couples may come out ahead in one area: they owe less in income taxes because they’re not hit with the so-called marriage penalty.

Our goal was to create a hypothetical gay couple whose situation would be similar to a heterosexual couple’s. So we gave the couple two children and assumed that one partner would stay home for five years to take care of them. We also considered the taxes in the three states that have the highest estimated gay populations — New York, California and Florida. We gave our couple an income of $140,000, which is about the average income in those three states for unmarried same-sex partners who are college-educated, 30 to 40 years old and raising children under the age of 18.

Here is what we came up with. In our worst case, the couple’s lifetime cost of being gay was $467,562. But the number fell to $41,196 in the best case for a couple with significantly better health insurance, plus lower taxes and other costs.

These numbers will vary, depending on a couple’s income and circumstance.

The story is accompanied by a number of comparison charts, a videocast, and a long document headed "A Look at How the Column Was Reported." The document is also available as a 25-page PDF, and goes through all the assumptions the Times used in its analyses.

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to General Law Related

Ind. Law - "Requests for retroactive property tax exemptions threaten county budgets"

Adding to a number of stories from papers around the state (see below), each adding more information, Lesley Stedman Weidenbener has this story in today's Louisville Courier Journal:

Indiana counties could be forced to refund millions of tax dollars if for-profit nursing homes and other health care providers succeed in arguing they’re eligible for retroactive charitable property tax exemptions.

In all, 21 for-profit health care providers – mostly nursing homes – have filed for the exemptions in Clark, Floyd and Harrison counties to seek refunds for tax years back to 2001. In Clark County alone, eight applications represent $32 million in assessed value.

Officials haven’t yet calculated how much that could cost the county in refunds, but county attorney Greg Fifer estimated it could be several million dollars for each tax year.

“It’s a potential budget crisis of a magnitude we’ve never seen before,” Fifer said.

Floyd County has a dozen applications for the exemptions, and Harrison County has one.

Similar applications have been filed in dozens of other Indiana counties.

The private companies argue that a combination of court decisions makes them eligible for the exemption, while the state budget that was passed in June allows them to ask for retroactive refunds.

“I think the law we’re operating under for nursing homes is clear,” said Pete Mallers, a Fort Wayne attorney who is representing a number of the nursing homes, including some in Southern Indiana.

But Senate Tax Chairman Brandt Hershman, R-Monticello, said Friday the General Assembly never intended to give for-profit corporations any charitable tax breaks. Instead, lawmakers created the retroactive language to give nonprofit groups that missed filing deadlines time to apply for the charitable exemption and recoup money lost in previous years.

Hershman said there was never a discussion about nursing homes or for-profit companies taking advantage of the law.

“If there’s a need to clarify the law or the tax court decisions, I’m sure we’ll take that under consideration,” Hershman said. “Obviously, the tax revenue impact could be significant and that was not the intent of the law. If it needs a correction, I’ll work with my colleagues to correct it.”

According to a memo filed with one of the Clark County nursing home applications, Indiana Tax Court decisions over the years have defined some health care services, particularly those for the elderly, as charitable purposes. Then in 2005, the Indiana Appeals Court said “the fact that an organization earns a profit is not necessarily determinative of whether it serves a charitable purpose.”

Mallers, whose firm wrote that memo, had been seeking tax exemptions for nursing homes even before the General Assembly passed the retroactive provision. He’s been successful in four counties where local property tax boards charged with reviewing the applications have granted exemptions for the for-profit nursing homes.

Other counties have said no, however, and Mallers’ appeals are pending before the state’s property tax board.

The disputes were relatively quiet until the General Assembly allowed retroactive refunds. But that led to a wave of applications from Mallers’ clients and others, leading to a Sept. 1 deadline specified in the budget to apply for such refunds.

Since then, “the only decisions we have received have been denials,” Mallers said. “We’re not surprised. We fully anticipate that this is ultimately going to be handled at a higher level.”

The local property tax boards in Clark, Floyd and Harrison counties have not yet considered the applications, a process that Fifer said could take another four to six weeks in Clark’s case. Meanwhile, several county assessors have sought guidance from the Indiana Department of Local Government Finance and outside tax attorneys.

The state agency has urged local officials to “review each property tax exemption application carefully” to see if it meets the test for charitable use, said Mary Jane Michalak, a spokeswoman for the local government finance agency.

But it has not given specific direction for dealing with the nursing home cases.

Carmel property tax attorney Marilyn Meighen said the legal issues are largely untested. She said the tax and appeals court decisions that the private companies are using to make their case don’t necessarily speak to the specifics of for-profit nursing homes using charitable exemptions.

“This is a fight for both sides,” said Meighen, who is working with at least 40 counties on the issue. “It’s not a lay-down win for either one.”

She expects whatever decisions are made locally to be appealed through the state board, tax court and appellate court. Ultimately, she said, the issue will likely be settled by the Indiana Supreme Court – unless the General Assembly intervenes first.

The drawn-out legal process would at least give local officials some time to find the money to pay refunds if they are ordered, she said.

“The financial ramifications are just enormous,” Meighen said. “This is real money and nobody has budgeted for it.”

Most of these earlier stories were referenced in ILB entries with the heading: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

For more on this year's budget bill and its issues, see:

Posted by Marcia Oddi on Saturday, October 03, 2009
Posted to Indiana Government | Indiana Law

Friday, October 02, 2009

Ind. Decisions - Four cases granted transfer Oct. 1st

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has just received notice that transfer has been granted Oct. 1st in the following cases:

1. Chawknee P. Caruthers v. State -- No. 46S05-0910-CR-431
2. Luis E. Duran v. State -- No. 45S03-0910-CR-430
3. Myron M. Owens v. State -- No. 49S02-0910-CR-429 [spelling corrected]
4. State v. Robert Richardson -- No. 49S02-0910-CR-428

More on this later.

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Indiana Transfer Lists

Courts - C-SPAN to focus on Supreme Court this week

Starting tonight. At 6:00 PM, a "Supreme Court Preview"::

Tonight, watch a preview of the upcoming Supreme Court term, hosted by William & Mary Law School. First, a case involving juvenile sentencing is tried before a moot court featuring journalists, professors and former solicitors acting as Supreme Court Justices (6pm ET). Then panel discussions on "Sotomayor and the Supreme Court" (7:30pm ET) and "The Court in 2020" (8:30pm ET).
For more on this, see this page from the William & Mary Law School, headed "22nd Annual Supreme Court Preview, Oct. 2-3."

Here is C-SPAN's special Supreme Court week of coverage page:

Beginning Sunday October 4 at 9pm and continuing through that entire week--each night at 9pm -- C-SPAN will present groundbreaking and unique programs on the Supreme Court. Featuring our original documentary production "The Supreme Court: Home to America's Highest Court" as well as an unprecedented collection of original interviews with all 11 living current and former Supreme Court Justices, Supreme Court week will offer viewers a rare window into the Supreme Court and those that serve there.
Check here for the line-up of programs. Here it is, abbreviated:
"The Supreme Court: Home To America’s Highest Court" - Sunday, October 4, 9 pm

Lyle Denniston, SCOTUS blog, and Joan Biskupic, USA Today - Monday, October 5, 9 pm

William Suter, Clerk of the Supreme Court - Tuesday, October 6, 9 pm

Jim O'Hara, Supreme Court historian and Frank Gilbert, Grandson of Justice Louis Brandeis - Wednesday, October 7, 9 pm

Drew Days III - Solicitor General, Clinton Administration, and Maureen Mahoney, former SC Law Clerk and Private Attorney - Thursday, October 8, 9 pm

Justices Kennedy, Ginsburg, Scalia & O'Connor interviews - Friday, October 9, 9 pm

Justices Sotomayor, Breyer, Thomas & Alito interviews - Saturday, October 10, 9 pm

Justices Roberts & Stevens interviews - Sunday, October 11, 9 pm

"The Supreme Court: Home To America's Highest Court" - Monday, October 12, 6 pm & 8pm

And be sure to take a look at C-SPAN's YouTube site.

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Courts in general

Ind. Gov't. - More on: "Victims still waiting for help Thousands of claims for aid from state sit unpaid"

This is the third entry the ILB has posted on the state crime victims' fund.

The first came from a June 21st story in the Fort Wayne Journal Gazette.

The second came from a July 19th story in the Indianapolis Star.

More than three months later, nothing seems to have changed. Today's story in the Star by Heather Gillers, recounting testimony of T. Neil Moore, executive director of the Indiana Criminal Justice Institute, before the legislature's Sentencing Policy Study Committee, appears simply to be more of the same:

Moore said the Criminal Justice Institute has 2,774 unpaid aid applications, some dating to 2006. He hopes to cut a three-year wait to one year by 2010.

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Indiana Government

Ind. Courts - "Easterbrook Slams CD Illinois Judge For Allowing Cameras in the Courtroom"

From the Champaign-Urbana News-Gazette today, a story by Tim Mitchell:

URBANA – U.S. District Judge Joe Billy McDade has apologized for allowing cameras to record a Champaign schools consent decree hearing in September.

McDade issued the written apology after Judge Frank Easterbrook, chief judge of the 7th Circuit, chided McDade in a written opinion for allowing video and still photography and live broadcasting of a Sept. 15 fairness hearing over the Champaign school district's consent decree.

At least four video cameras, two audio recorders and one still camera recorded the hearing.

The News-Gazette used still and video photography at the hearing. The paper also asked the judge to broaden his initial intent to allow only television cameras into the courtroom, and he granted that request.

n a memo issued on Monday, Easterbrook noted that a copy of one of the video recordings had been posted on the Internet and that photos from the hearing had appeared in the newspaper.

Easterbrook cited an Oct. 15, 1996, policy by the 7th Circuit Judicial Council that said, "The taking of photographs, making of audio or video recordings, or electronic broadcasting of judicial proceedings in or from a court room must not be permitted by any district court in this circuit."

In his opinion, which is available online here, Easterbrook said McDade violated the policy when he allowed cameras at the hearing.

McDade responded with a letter in which he said he believed he could grant an exception to the rule prohibiting cameras.

"Because of the considerable interest in the case by the Champaign community over the past seven years during the existence of the consent decree, I wanted the widest possible dissemination of the hearing," McDade wrote.

McDade said he was wrong to allow the cameras.

"I deeply regret my violation of the policy prohibiting the taking of photographs, making of audio or video recordings or electronic broadcasting of judicial proceedings," McDade were. "I was in clear violation of these policies and will do anything necessary to make amends."

The full text of McDade's letter is available here.

Easterbrook said no party to the hearing was damaged by the recordings and that no one had complained.

Thanks to the WSJ Law Blog, which picked up this Illinois story earlier this afternoon. Here is their post.

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

D.B. v. M.B.V. - "Here, the trial court articulated no specific finding that parenting time would cause harm to the children. The record disclosing the past interaction between Father and his children does not approach the egregious circumstances in which we have previously found that parenting time may be terminated, such as when a parent sexually molests a child. Clearly, our parenting time statute does not provide for the elimination of parenting time because reunification counseling has proved unusually challenging or because teenagers do not wish to interact with a parent while accepting substantial financial benefits from that parent.

"However, while the complete termination of parenting time is not supported by the evidence, the record would support an order for supervised parenting time. Such an order would be appropriate given the volatile relationship between the parties, the ages of the children, and the concern of one therapist that supervision of parenting time would protect Father from unfounded accusations. On remand, should the trial court restrict Father’s parenting time upon entry of the requisite statutory finding of endangerment, we encourage the trial court to order that the parenting time be supervised."

NFP civil opinions today (2):

Sean Feeney v. Review Board and Cetani (NFP) - "Feeney has not established that he was wrongly denied unemployment benefits. We affirm."

Michael A. Stephens v. Gilkey Wholesale Greenhouses Inc. (NFP) - "Under the facts and circumstances of this case, Stephens's default judgment did not arise from a breakdown in communication with his attorney or from any other “mistake, surprise, or excusable neglect.” Rather the default judgment resulted because Stephens failed to act for a substantial period of time after being advised by Fahl that Stephens should retain alternative counsel in the Gilkey matter. After being so advised, Stephens could not reasonably believe that Fahl continued to deal with the Gilkey matter.

"After Fahl had notified Stephens of his inability to continue as counsel, Stephens had at least two months to make alternative arrangements before Gilkey filed its motion for default judgment. Stephens knew that he needed to retain another attorney. Stephens cannot now argue that his neglect of this matter is excusable under Trial Rule 60 (B) (1).

"The trial court did not abuse its discretion when it denied Stephens's motion to set aside default judgment. Affirmed."

DARDEN, J., and RO

NFP criminal opinions today (2):

Randall Tison v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Bar exam results from July exam

The list of those applicants who are successful on the July 2009 Indiana Bar Examination were posted here this morning.

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Indiana Courts

Ind. Law - "Liability, statutes of limitations, and statute of repose for asbestos-related illnesses"

That was the description of item #4 on the agenda of yesterday's meeting of the interim Commission on Courts. Reporter Eric Bradner was there and has a long story today in the Evansville Courier & Press. Some quotes:

Before she dies, Dorothy Kuykendall wants her day in court. * * *

This April, she learned that she is dying of cancer. Even though she hasn’t handled asbestos since 1975, her doctors say that exposure is the cause. * * *

State statute gives Hoosiers only 10 years to file a lawsuit after contact with harmful materials. Since Indiana doesn’t make an exception for those with latent diseases, she has no recourse.

Kuykendall can’t get workers’ compensation, and she can’t sue. Therefore, Medicare is on the hook for hundreds of thousands of dollars in medical expenses as a result of her disease.

“My family and the taxpayers are paying for the actions of the company that sold asbestos and my former employer,” she said. “It’s just not fair.”

Kuykendall was part of a group of advocates who asked a panel of state lawmakers on Thursday to pass legislation that would allow those who develop diseases caused by asbestos decades after being exposed to sue the companies responsible for the exposure. * * *

Under current Indiana law, those who are exposed to hazardous materials such as asbestos have up to 10 years to file a lawsuit.

However, asbestos diseases – most prominently, mesothelioma – can take much longer to develop, meaning that by the time the illness is discovered and diagnosed, the chance to take legal action has already passed.

Indiana is the only state that doesn’t have a law on the books allowing for exceptions for latent diseases, according to Russell Sipes, an attorney who testified Thursday and who represents clients who suffer from asbestos-related diseases.

The legislation he called for would maintain the state’s current 10-year window, but would carve out an exception that allows Hoosiers who are beyond that time frame to sue within two years of being diagnosed.

It’s an exception the General Assembly approved in 1989. However, a 2003 state Supreme Court ruling drastically altered the meaning of that law, rendering it essentially useless, Sipes said.

“It’s obvious – people who become ill never have a right to sue,” he said. “They become sick and often they die long after the time the Legislature has set for them to bring a cause of action to try to hold anyone responsible.” * * *

The committee’s chairwoman, Rep. Linda Lawson, D-Hammond, said she expects her panel to recommend that the General Assembly pass a bill allowing for the two-year exemption for latent diseases during the 2010 session.

Mike Smith of the AP has this story today.

Re the 2003 Indiana Supreme Court decisions
, the ILB wrote about them on March 27, 2003 in an entry that began:
In a series of decisions issued Tuesday, 3/25/03, the Indiana Supreme Court analyzed the interaction between, and the constitutionality of, two statutes governing lawsuits alleging injuries caused by products (IC 34-20-3-1), and special rules in asbestos cases (IC 34-20-3-2). Here is the main opinion, Allied Signal, et.al. v. Ott, by Justice Sullivan, C.J. Shepard and J. Boehm concurring. J. Dickson dissented in a separate opinion, with J. Rucker concurring.

Posted by Marcia Oddi on Friday, October 02, 2009
Posted to Indiana Law

Thursday, October 01, 2009

Ind. Decisions - Disciplinary ruling in Record case

The ILB has had a number of entries on Terry Record, an Indiana attorney, originally from Evansville, charged in a drunken-driving with fatality case, including this one from June 3rd, headed "Ex-lawyer gets 2 years in deadly DUI, may serve 11 months," and this one from June 18th.

Today the Supreme Court has posted a "Published order accepting consent to discipline and imposing discipline," filed September 29th, that provides:

Facts: On May 6, 2007, Respondent drove his vehicle through a red light and collided with another vehicle. The other driver died of injuries he sustained. Respondent pled guilty on April 15, 2009, to operating a motor vehicle while intoxicated causing death, a class C felony. He was sentenced to four years—two executed and two suspended—with four years of probation following the executed sentence. * * *

Violation: Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of at least 24 months, without automatic reinstatement, beginning the date of this order. Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). If reinstatement is sought, it would likely be granted only with the involvement of and monitoring by the Indiana Judges and Lawyers Assistance Program.

The ILB's Sept. 9th entry on the discipline of Teresa Perry, another young Evansville attorney, charged with meth-related offenses in 2007, is available here.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Even more on: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

Updating this ILB entry from yesterday, another story has turned up, this one from the Sept. 24th Kokomo Perspective, reported by Tim Turner. Each story seems to add a little more information:

Once again, language buried in the state budget bill could cost the county money, but this time the number is close to $2 million.

This time the benefactors of the favorable legislation are for-profit assisted living facilities which, through recent decisions in the Indiana Tax Court, are now considered charitable organizations exempt from paying property taxes. However the organizations have traditionally paid property taxes, so the state legislature decided to allow them to appeal their taxes for the past nine years and get a refund to the tune of $1.9 million in Howard County alone.

The legislation that was passed in Indianapolis applies to all charitable organizations, but none of the traditional not-for-profits have filed for the special exemption. The only ones that have filed are the for-profit companies that are now tax exempt. County assessor Jamie Shepherd does not think state legislators can hide under the guise of trying to help charities.

"I am very disappointed that they are just allowing this," said Shepherd. "If someone came into today and filed a homestead deduction, and they were eligible for that deduction for the past 9 years, there is no law that lets them do that. A judge only has the ability to interpret the law if there is room for interpretation. I know these legislators get these decisions from the tax courts, at least the local ones, because I forward the decisions to them all and tell them how they will affect Howard County specifically. To me, it is their responsibility to make sure that if that is the way they want the law interpreted that is fine, but it is their job to make sure there is no gray area. Once again it was buried in the budget bill."

In fact, state representative Ron Herrell was unaware that the language was in the budget bill and that it would have this effect on local government. But Herrell, unlike his Republican counterparts in Howard County, did not vote for the budget bill.

"We already see the struggles our governments are having with the tax caps and things like that. Combined with these hardships, it is just another reason I didn't vote for the budget," said Herrell.

A billboard on US 31 accuses Herrell of blocking progress in Indiana, but this change could stop the progress of the in-roads made on personal property tax relief for homeowners across the state.

These for-profit assisted living facilities will continue to get this exemption, which will raise taxes on all the other taxpayers, and there could be a one-time jump to cover the $1.9 million the county will have to pay back.

The county could avoid making cuts by certifying a lower assessed value in the county because of these facilities. Traditionally the auditor certifies the total assessed value of property in the county lower than it actually is because of property tax levy appeals. She has the authority to certify the assessed value two percent less than its actual value in anticipation that the appeal will be granted. When she lowers that assessed value, it raises the tax levy that everyone else pays. Meaning taxpayers could pay for the check the county writes to these assisted living facilities.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Indiana Law

Courts - "We Are Devoting Too Many of Our Best Minds to’ Lawyering"

From the WSJ Law Blog today, this gem, from Justice Scalia and C-SPAN.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Xingya Liu and Ximing Huang v. City of West Lafayette (NFP) - "Xingya Liu and Ximing Huang (collectively, the Landlords) appeal the trial court's grant of summary judgment and judgment in favor the City of West Lafayette (the City) in the City's action alleging that the Landlords' four-bedroom rental house in West Lafayette was over-occupied during the 2006-2007 Purdue University academic year in violation of a West Lafayette ordinance limiting occupancy of rental houses to three unrelated persons. * * *

"In Oct. 2006, the Landlords took all five tenants out to dinner for the Landlords' annual dinner with their tenants. Five vehicles were parked at the house every day, and five names were on the mailbox at the front of the house. The Landlords never checked out these signs of overoccupancy. This evidence supports the trial court's conclusion that the Landlords were not diligent in monitoring their property, and the trial court did not err in entering judgment in favor of the City."

Kathleen Grothe v. Young Park (NFP) - "The trial court did not abuse its discretion by making an unequal division of the marital assets. Moreover, we deny Park’s request for appellate attorney fees. We affirm."

NFP criminal opinions today (9):

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

Ronnie T. Miles v. State of Indiana (NFP)

Jeffery Zenthofer v. State of Indiana (NFP)

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

B.P. v. State of Indiana (NFP)

Randall Carr v. State of Indiana (NFP)

Rashad Hassan v. State of Indiana (NFP)

Rashad Hassan v. State of Indiana (NFP)

Jamarcus L. Sims v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court issues two today, denying petitions for rehearing

In Jamestown Homes of Mishawaka, Inc. v. St. Joseph County Assessor, a 7-page opinion, Judge Fisher writes:

On July 24, 2009, this Court issued an opinion in the above-captioned case. In that opinion, the Court affirmed the Indiana Board of Tax Review's (Indiana Board) final determination that held that Jamestown Homes of Mishawaka, Inc. (Jamestown) was not entitled to a property tax exemption on apartments it leased to low/moderate income individuals for below-market rent. See Jamestown Homes of Mishawaka, Inc. v. St. Joseph County Assessor, 909 N.E.2d 1138 (Ind. Tax Ct. 2009). On August 21, 2009, Jamestown filed a Petition for Rehearing (Petition), pursuant to Indiana Appellate Rule 63, requesting the Court reconsider its holding. * * *

In a case where the question to be answered was whether low-income housing was property used for a charitable purpose, Jamestown did little more than state that the provision of low-income housing is a charitable purpose.[3] Consequently, the Court DENIES Jamestown's Petition.
3 In presenting its case, Jamestown operated under the belief that this Court had already ruled that the provision of affordable housing for low-income persons was property used for a charitable purpose. See Jamestown Homes of Mishawaka, Inc. v. St. Joseph Co. Assessor, 909 N.E.2d 1138, 1142 n.9 (Ind. Tax Ct. 2009). As this Court pointed out, however, it never made such a ruling. See id.

In Oaken Bucket Partners, LLC v. Hamilton County Property Tax Assessment Board, et al, a 6-page opinion, Judge Fisher writes:
The Court, having reviewed the PTABOA's petition and Oaken Bucket's response thereto, now grants the PTABOA's petition for the sole purpose of clarifying its decision in the above-captioned case. * * *

The Court therefore stands by its decision in Oaken Bucket in its entirety.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Restructuring state courts"

The Fort Wayne Journal Gazette has an editorial today on the Indiana Judicial Conference's 27-page plan to improve the Indiana system of justice.

(See also this Sept. 17 ILB entry including a link to the 27-page plan, and this ILB followup from Sept. 18th, including an answer to the question: "Okay, what is the Indiana Judicial Conference?")

From the side-bar to today's editorial, a summary of the report's recommendations:

The Indiana Judicial Conference report recommends the following changes in the state’s judicial system:

• All judges would be chosen under the same method.

• Courts would be divided into districts and reorganized. The distinction between circuit and superior courts would be eliminated.

• The state would fully fund the court system.

• The county clerk’s duties would change, giving the courts more responsibility for record-keeping.

• Standards for ongoing education would be higher for judges.

From the editorial:
A panel of Indiana judges has recommended significant and far-reaching changes in the state’s judicial system, including several that would bring welcome improvements.

The biggest changes would require legislative approval and will likely spur much debate among both lawmakers and individual judges, largely over control.

A committee of nine judges – including Allen Circuit Judge Thomas Felts and Allen Superior Court Judge Fran Gull – developed the recommendations on behalf of the state’s judiciary in a white paper titled “A Blueprint for Excellence and Greater Accountability: Enhanced Access to Justice in Indiana’s Judicial System.” All the recommendations deserve serious consideration, and some clearly should be adopted.

Probably the easiest to advance – and the least controversial – would increase requirements for judges’ ongoing education and set higher qualification standards for court staff.

One overdue and important step would eliminate the patchwork process to select judges that differs widely between counties and mandate a uniform system that eliminates party affiliations and elections. The governor would appoint new judges from a panel selected by bipartisan community commissions, and incumbent judges would face retention votes from citizens. Strict limits would be placed on how judges raise campaign money.

“This could virtually eliminate the negative perception resulting from fundraising from lawyers who practice before the judge and other negative influences of money,” the committee notes in its 27-page report detailing the recommendations.

The proposal would change the fragmented structure of circuit courts, superior courts, probate courts, small claims courts and city and town courts to establish one level of trial courts.

A system that now includes judges, referees, magistrates and court commissioners would have only judges and magistrates, and the magistrates would answer more clearly to trial court judges.

The use of “pro tem” judges – lawyers who serve as temporary judges – would rightly be minimized.

More from the editorial:
Other recommendations deserve further study and will likely face roadblocks.

One of the most significant would replace the system of county-level courts with geographic districts. Some large counties, including Allen, could be districts unto themselves, but others would cross county lines, diffusing power and responsibility. Another would transfer responsibility of record-keeping from the clerk of courts – an elected position – to the courts themselves.

And the report calls for the state to take over financing of the courts system, a move that would please some county officials who complain about the costs of courts on property taxes.

These measures could increase efficiency but also transfer some responsibility from local elected officials to appointed judicial officials. Any such move should be taken with great scrutiny that includes a careful examination of unintended consequences.

The report, issued two weeks ago, in many ways recommends for the courts the same type of modernization and improvements the Kernan-Shepard Commission recommended for Indiana local governments. Like the Kernan-Shepard report, the judicial white paper is likely to stir debate and opposition that is too often centered on protecting turf rather than on what is best for Hoosiers.

The recommendations should spur discussion, formal proposals and – most importantly – action to improve the judiciary.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Indiana Courts

Law - Still more on: Maintaining governmental emails in Boston and elsewhere

Updating this ILB entry from Sept. 17th, which started with the Boston Globe's report "about a high level city employee who routinely deleted his emails," the City of Boston has now created a webpage titled "City of Boston Email Policy and Reporter's Guide," which includes much material useful to other cities.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to General Law Related

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

Updating this ILB entry from July 1st, Jon Murray of the Indianapolis Star reports today that the "Forgery case will need a new special prosecutor," because:

A special prosecutor appointed to handle a politically sensitive forgery case because of Marion County prosecutors' conflict of interest now has one of her own.

Judith Johnson, a deputy prosecutor in Clinton County, has accepted a job as a deputy prosecutor with the Marion County office, which recused itself in June.

The case involves a judge's wife who could face criminal charges on an accusation she forged the signature of another judge in an attempt to prevent a home foreclosure.

Now, the case likely will need a new special prosecutor, who would be appointed by Special Judge Jane Spencer Craney of Morgan County. * * *

Johnson had not yet announced a decision on whether Kristina Nelson, the wife of Marion Superior Court Judge William Nelson, will face criminal charges.

Kristina Nelson, 43, was accused in June in police and court documents of forging the signature of another Marion County judge -- Sheila A. Carlisle, her sister-in-law -- on a fake court order and sending it to a mortgage company as part of an elaborate ruse to stop a home foreclosure.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Indiana Courts

Ind. Decisions - Still more on "N.J. man asks Indiana court to reconsider recent ruling regarding twins born to surrogate"

Updating yesterday's ILB entry, Tim Evans has this story today in the Indianapolis Star, headed "Twins' adoption must be redone." Some quotes:

The Indiana Supreme Court has reaffirmed its earlier decision that a New Jersey man who adopted twin girls from an out-of-state surrogate mother must complete a second adoption process.

The court said in April that the girls -- born at Methodist Hospital in Indianapolis -- could remain in New Jersey with Stephen F. Melinger, 62, while he goes back through the adoption process. The new order does not appear to change that. * * *

It's unclear what interaction New Jersey child welfare officials have had with Melinger.

Lauren Kidd, spokeswoman for the New Jersey Department of Children and Families, said state and federal confidentiality rules prohibit her from commenting about individual cases or even confirming whether the agency has had any contact with Melinger or the girls. * * *

The Supreme Court ruling issued Wednesday also raised questions about the children's current status.

The new Supreme Court order states: "New Jersey's child protection authorities have initiated a CHINS proceeding and removed the children from (Melinger)."

Litz said he doesn't know where the court got that idea, but he said it's wrong.

"He still has the girls," [his attorney, Steven Litz] said. "Steve's always had the girls."

Kathryn Dolan, public information officer for the Division of State Court Administration, said she did not know, and could not comment on, where the justices received the information that the children had been removed.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Ind. court says no warrant needed for DNA test"

Yesterday's 2-1 COA decision in Arturo Garcia-Torres v. State of Indiana (ILB summary here) is the subject of a brief AP story today.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Ind. App.Ct. Decisions

Courts - Still more on the McDonald v. Chicago cert grant

Several of the stories I've read today indicate that McDonald v. Chicago is a different case than NRA v. Chicago.

Here is the Supreme Court docket for McDonald v. Chicago (08-1521), indicating 7th Circuit case nos. (08-4241, 08-4243, 08-4244).

Here is the June 2, 2009 7th Circuit opinion in NRA v. Chicago: Nos. 08-4241, 08-4243 & 08-4244.

A more recent 7th Circuit ruling about which I've seen nothing in the press was Justice v. Town of Cicero (ND Ill), written by Judge Wood (joined by Judges Tinder and Bauer), issued August 14th. Read the ILB summary here.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Courts in general

Courts - The new Supreme Court, 2009 - 2010

This USA Today story features a cool photo galley of all the justices - and each photo can be expanded for more information.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Courts in general

Courts - More on the McDonald v. Chicago cert grant

Updating yesterday's ILB entry headed "Courts - The SCOTUS has granted cert in a number of cases, including an Indiana federal case," there are a number of good stories today on the Chicago gun case grant.

Topping the list is this analysis by Lyle Denniston of SCOTUSblog, headed "Making Rights Grow." Some quotes:

The Supreme Court has a few ways of recognizing — one might say “creating” — new constitutional rights, but it has one that it has not used for 30 years. When that technique was last used, John Paul Stevens was the junior Justice, he was just days away from his 59th birthday, and he was already, in his fourth year, marking a distinctive path of his own as a member of the Court. The decision handed down on that April day in 1979 was Burch v. Louisiana.

It is not really one of the great cases (it takes up only a handful of pages in the United States Reports). But Burch, by scholarly reckoning, marked the last time the Supreme Court told the states that they would have to obey a part of the Bill of Rights, originally added to the Constitution in 1791 to restrain the powers of the national government. * * *

On Wednesday, the Court embarked on what is, for every Justice except Stevens, an entirely new constitutional adventure: deciding whether another part of the Bill of Rights is to be broadened so that it curbs state, county and city laws, and not just those enacted at the federal level.

Adam Liptak of the NY Times writes:
The gun-control case, McDonald v. Chicago, No. 08-1521, addresses a question that was left open last year when the court decided that the Second Amendment protects an individual right to own firearms rather than a collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal laws, and struck down parts of the gun control law in the District of Columbia, a federal enclave. The court ruled that the law violated the Second Amendment by barring law-abiding people from keeping guns in their homes for self-defense.

From Warren Richey's story in the Christian Science Monitor:
The justices announced Wednesday that they will hear an appeal in McDonald v. City of Chicago challenging a handgun ban in Chicago. Gun owners in the city questioned the constitutionality of the ban, citing the Supreme Court's June 2008 decision, in a case called District of Columbia v. Heller, overturning a similar handgun ban in Washington, D.C.

The same lawyer, Alan Gura of Alexandria, Va., who successfully argued the Heller case at the high court is also set to argue the McDonald case.

An appeals court ruled in the Chicago case that the city's handgun ban did not violate the Constitution because the Supreme Court had not yet declared whether its decision in the Heller case established a fundamental right to guns applicable throughout the US.

Since Washington is a federal enclave, the Heller decision left open the question of whether the landmark ruling would also invalidate handgun and other weapons bans enacted by city governments such as Chicago.

The Chicago case hinges on an important feature of constitutional history. When first enacted, the Bill of Rights provided protection against encroachments on individual liberty by the national government. For example, the First Amendment says that Congress shall make no law abridging the freedom of the press. However, it said nothing about restrictions enacted by a state legislature.

Later, however, most of the protections of the Bill of Rights were extended to apply to state and local governments as well as the national government. The question the Supreme Court has now agreed to answer is whether Second Amendment protections of gun rights also apply to state and local governments.

There are two ways those protections might be applied to the states through the 14th Amendment, which is the recognized vehicle for incorporating constitutional rights to the states. One way is through the due process clause of the 14th Amendment. The other is through the privileges and immunities clause, also of the 14th Amendment.

In upholding the Chicago handgun ban, the appeals court in Chicago cited Supreme Court decisions dating from the late 1800s that the Second Amendment applied only to the national government.

More recently, the high court has adopted a different approach when applying constitutional rights to the states. But the appeals court in the Chicago case did not attempt to apply the high court's more recent approach. Instead, the judges insisted that it was up to the Supreme Court, not the lower courts, to decide such a fundamental issue.

In the Washington Post, a story by Mark Sherman of the AP.

Posted by Marcia Oddi on Thursday, October 01, 2009
Posted to Courts in general